APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the circuit court of Madison County granting the motion of defendant, Johnny Adams, to dismiss an indictment for failure to state an offense.
The indictment in question charged that:
"Johnny Adams on the 1st day of May, 1975, at and in the county of Madison, in the state of Illinois, committed the offense of unlawful delivery of a controlled substance, in that said defendant did knowingly and unlawfully deliver to Dennis Higgins and James Williams less than 30 grams of a substance containing heroin, otherwise than as authorized in the Controlled Substances Act in violation of Paragraph 1401(b), Chapter 56 1/2, Illinois Revised Statutes * * *."
The defendant filed a motion to dismiss alleging that the indictment failed to specify that heroin is a "narcotic drug." The trial court reasoned that failure to describe heroin as a "narcotic drug" rendered it uncertain whether the defendant was being indicted for a Class 2 or a Class 3 felony and held that the indictment was therefore fatally defective.
• 1 The courts> of Illinois have for many years used a well-defined standard to test the sufficiency of an indictment. Although the language used varies slightly from case to case the essence of the test applied is whether the indictment is sufficiently specific to inform the defendant of the offense charged so as to enable him to prepare a defense and to allow pleading the resulting judgment in bar of any future prosecution for the same conduct. People v. Pujoue, 61 Ill.2d 335, 335 N.E.2d 437; West v. People, 137 Ill. 189, 27 N.E. 34.
• 2 Judging the indictment by the test heretofore applied, both for indictments attacked for the first time on appeal and those brought into question at the trial level, we find the indictment here sufficient. A criminal charge is to be read as a whole, and where a statute is cited therein the statute and the charge are to be read together. People v. Baez, 20 Ill. App.3d 896, 314 N.E.2d 258.
Section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401), cited in the indictment, reads in relevant part:
"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:
(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 Schedules I or II which is not a narcotic drug is guilty of a Class 3 felony. * * *"
Schedule I (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1204) is divided into three sections dealing respectively with, opiates, opium derivatives and hallucinogens. Schedule I lists, as a controlled substance, in the section dealing with opium derivatives, "heroin." The definition section of the statute (Ill. Rev. Stat. 1976 Supp., ch. 56 1/2, par. 1102(aa)) reads:
"`Narcotic drug' means * * * (1) opium * * * and any * * * derivative * * * of opium * * *."
Thus it is possible by a simple reading of the statute to ascertain that heroin is a narcotic drug the delivery of which in a quantity less than 30 grams is a Class 2 felony. By including definitions of narcotic drugs in the statute it is obvious that the legislature intended that ...