APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The State appeals from a judgment of the circuit court of Jackson County finding the defendants, William Clutts and Willard Biermann, guilty of the delivery of less than 200 grams of a controlled substance in violation of section 401 of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401).
In the indictment the State sought to charge the defendants with the Class 1 felony of delivery of 200 grams or more of a substance containing amphetamines pursuant to section 401(a)(6) of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(a)(6)). However, the indictment did not allege a gram amount; instead, it referred to a sale of 50,000 tablets of amphetamines. After the State had rested its case against the defendants, having introduced evidence tending to prove delivery of more than 200 grams of a substance containing amphetamines, the defendants moved to dismiss the indictment. They cited as one of the grounds for their motion the failure of the indictment to allege a gram amount as a necessary element in charging a Class 1 felony. The trial court held that the evidence adduced was sufficient to prove a Class 1 felony, but the indictment was insufficient to charge a Class 1 felony. Rather than dismiss the action, however, the court held that the indictment was sufficient to charge an offense under section 401(c) of the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(c)). That section of the Controlled Substances Act defines delivery of "any other amount of a controlled substance classified in Schedule I or II which is not a narcotic drug" to be a Class 3 felony. After the trial court had so ruled, over the objection of the State, the defendants rested their case and were found guilty of the Class 3 felony.
The State contends that the trial court erred in holding the indictment insufficient to charge a Class 1 felony. It argues that a gram amount is not an essential element to be alleged and that in any event the indictment was sufficient to inform the defendants of the crime charged so as to enable them to prepare a defense. While the indictment described the quantity of amphetamines delivered with the words "50,000 tablets," rather than in the precise statutory language of "200 grams or more," the State contends that the defendants were apprised of the specific facts constituting the crime charged and thus knew that they were charged with a Class 1 felony. Furthermore, the State argues that the record reflects actual knowledge on the part of the defendants that they were charged with the greater offense.
Should this court find that the indictment was insufficient to charge a Class 1 felony for failure to allege a gram amount, the State has asked us to find that the trial court erred in not granting the State's motion for a mistrial to allow it to re-indict the defendants on the greater charge. The State contends that by convicting the defendants of the lesser charge, the trial court has usurped the State's discretionary power to determine the offense to be charged. This action has resulted in the dismissal of the greater charge and, according to the State, has also had the effect of barring a future prosecution of the greater charge under section 3-4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1961, ch. 38, par. 3-4(a)), which provides:
"A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution * * * resulted in * * * a conviction or an acquittal * * *.
A conviction of an included offense is an acquittal of the offense charged."
We are not aware of any Illinois cases which have considered the precise question of whether a gram amount is an essential element which must be alleged in an indictment in order to charge and support a conviction for a Class 1 felony in violation of the Controlled Substances Act. However, in the 1974 case of People v. Kadlec, 21 Ill. App.3d 289, 313 N.E.2d 522, the Appellate Court for the Third District held that when a defendant has been charged with delivery of more than 200 grams of a controlled substance, the quantity of 200 grams or more is an essential element going to the substance of the charge and an issue which must be specifically presented to the jury and decided by them under proper instructions. In Kadlec the indictment did allege a specific gram amount; however, the jury was not instructed that weight was an element of the offense and the form of verdict did not incorporate a finding as to weight. Therefore, in considering the jury's verdict of guilty of unlawful delivery of a controlled substance, the court was of the opinion that this finding afforded no basis for a sentence for the higher grade of offense and reduced the sentence to correspond to a Class 3 felony. People v. Kadlec, 21 Ill. App.3d 289, 313 N.E.2d 522.
• 1 While the issue in Kadlec concerned the jury's verdict as a basis for sentencing, the reasoning in that case is equally applicable in determining that a gram amount is an essential element to be alleged in an indictment seeking to charge the greater grade of offense under the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1100 et seq.), since the Act is expressly stated in terms of specific substances and amounts:
"Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this Section with respect to:
(a) the following controlled substances and amounts * * * is guilty of a Class 1 felony * * *.
(b) any other amount of a controlled substance classified in Schedules I or II which is a narcotic drug is guilty of a Class 2 felony * * *.
(c) any other amount of a controlled substance classified in Schedule I or II which is not a narcotic drug is guilty of a Class 3 felony * * *." (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401.) (Emphasis added.)
As cited with approval by the Kadlec court, the new 28 C.J.S. Drugs and Narcotics Supplement (issued April 1974), section 162, page 239, concludes that under statutes where the grade of offense depends on the amount of the drug involved, "the specific amount possessed is an essential element going to the substance of a felony." This is no less true in determining essential elements which must ...