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People v. Rege

OPINION FILED OCTOBER 1, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT AND APPELLEE,

v.

MICHAEL L. REGE, APPELLEE AND APPELLANT.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Montgomery County; the Hon. Paul M. Hickman, MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

In a bench trial in the circuit court of Montgomery County, the defendant, Michael L. Rege, was found guilty of possession of more than 500 grams of a substance containing cannabis in violation of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704(e)). At the conclusion of a presentence hearing, the trial court denied the defendant's motion for probation and imposed a sentence of 1 to 3 years in the penitentiary. On appeal, the appellate court affirmed the conviction but remanded the cause to the trial court with directions to vacate the sentence and to grant the defendant probation under such terms and conditions as it should determine. (People v. Rege (1975), 30 Ill. App.3d 127.) We allowed separate petitions for leave to appeal filed by the People (No. 47850) and by the defendant (No. 47864) and have consolidated them for opinion in this court.

Defendant's initial contention is that his conviction must be reversed on the ground that the indictment failed to charge him with an offense and was therefore void. Section 4(e) of the Cannabis Control Act provides in pertinent part:

"It is unlawful for any person knowingly to possess cannabis. Any person who violates this section with respect to:

(e) more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony." (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 704(e).)

"Cannabis" is defined by the statute as follows:

"`Cannabis' includes marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination." (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 703(a).)

The indictment returned by the Montgomery County grand jury charged:

"That on the 12th Day of April, 1973, in Montgomery County, Illinois, MICHAEL L. REGE committed the offense of UNLAWFUL POSSESSION OF CANNABIS in that Michael L. Rege did knowingly and unlawfully have in his possession more than five hundred (500) grams of a substance containing Cannabis, otherwise than as authorized in the Cannabis Control Act in violation of Chapter 56 1/2 Paragraph 704(e), Illinois Revised Statutes, which is Section 4(e) of the Cannabis Control Act."

The defendant argues that cannabis exists in various forms and that the Cannabis Control Act evidences a legislative intent to proscribe only natural substances derived from the plant Cannabis Sativa and certain other synthetically or chemically produced substances, excepting therefrom particular parts, such as the mature stalks, and products made therefrom. He contends that the indictment in this case failed to charge him with possession of a particular kind and quality of cannabis prohibited by the statute for which reason the indictment was void and the trial court was without jurisdiction.

Since the sufficiency of the indictment was challenged by defendant for the first time in the appellate court, we need not determine whether the indictment could withstand a pretrial motion to dismiss or a post-trial motion in arrest of judgment for failure to state an offense. Failure of an indictment to allege all elements of an offense does not serve to deprive the circuit court of jurisdiction (People v. Gilmore (1976), 63 Ill.2d 23), nor does it necessarily render the indictment void (People v. Pujoue (1975), 61 Ill.2d 335). As we held recently in the Pujoue and Gilmore cases, an indictment or information attacked for the first time on appeal is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow the pleading of a resulting conviction as a bar to future prosecution arising out of the same conduct.

Application of the foregoing test to this case leads us to conclude that the indictment was sufficient in both respects. The indictment charged that on a certain date in Montgomery County, Illinois, the defendant possessed more than 500 grams of a substance containing cannabis in violation of a specific provision of the Cannabis Control Act. Defendant does not suggest in what manner his defense was prejudiced by failure of the indictment to more particularly identify the substance he allegedly possessed, and our examination of the record discloses no such prejudice. It is apparent that prior to and during the trial there was never any question or doubt about the fact that defendant was being tried for unlawful possession of marijuana and hashish in violation of the Cannabis Control Act. The record also clearly shows that the offense of which defendant was convicted was specifically identifiable and could be pleaded in bar of subsequent prosecutions. See also People v. Yeargain (1954), 3 Ill.2d 25.

At trial there was evidence that on April 12, 1973, at 1:25 p.m., defendant was stopped by State Police troopers on U.S. Route 66 for driving 80 miles per hour in a 70 mile per hour zone. The troopers testified that they smelled "an odor of marijuana" inside the driving compartment of the car and also detected "a rather strong odor of marijuana" when defendant opened the trunk of the car. The troopers recovered a brown paper sack from the trunk which was found to contain what the troopers believed to be "a quantity of marijuana." At about the time the troopers were examining the contents of the paper bag, defendant said "there is no hard stuff there" and also stated "and that is all the grass I got." While en route to police headquarters, defendant told the troopers "this was the first time I ever transported any marijuana like this." According to the troopers, defendant "also made the statement that this was his grass and that it was his summer stash." The troopers further testified that to their knowledge "grass," "cannabis" and "marijuana" were one and the same. The State proceeded to introduce into evidence various exhibits taken from the trunk of defendant's car, including a number of cellophane bags, a glass bottle and a portion of a "brick," the contents of which had been analyzed at the Springfield Crime Laboratory. In his testimony, the analyst described the chemical and microscopic tests he performed on the vegetable material in the various containers. He testified that both tests revealed the presence of cannabis in each of the containers he tested and that the total weight of cannabis found in seven specified exhibits was 707.1 grams.

Defendant contends that the foregoing evidence was insufficient to prove beyond a reasonable doubt that he possessed a form of cannabis proscribed by section 4(e) of the Cannabis Control Act. In this regard, he relies primarily on the fact that the analyst who tested the substances testified merely that the substances contained "cannabis" without further identifying them as containing marijuana, hashish, parts of the plant Cannabis Sativa and the like. This argument is again based on the premise that cannabis is polytypical and that the Cannabis Control Act proscribes certain forms of cannabis but not others. We believe, however, that in any event there was sufficient evidence in the record before us to sustain the conviction. The testimony concerning the laboratory test findings was not the only evidence relative to the nature of the substances recovered from ...


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