APPEAL from the Circuit Court of Marshall County; the Hon.
EDWARD E. HAUGENS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a bench trial the defendant, Lyle Kent, was found guilty of delivery of a substance represented to be a controlled substance in violation of section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1404). The circuit court of Marshall County sentenced the defendant to a term in the penitentiary of 1 to 3 years.
On this appeal the defendant raises two issues. First, defendant argues the trial court did not properly interpret the statute which the defendant was charged with violating and second, even if the statute was properly interpreted, the evidence was insufficient to support his conviction.
On March 19, 1975, Carl Roberts, Kevin Harris, John Weger and Randy Longman played hooky from school. Instead of attending school, they played pool in Henry, Illinois. Around noon, they met Kevin Harris' sister, Debbie Wiese, who drove them to a trailer in Crescent Mobile Home Park. At the trailer park, Carl Roberts gave Debbie Wiese money to purchase drugs. She went inside a trailer all alone and returned with a package which she gave to Carl Roberts. She testified that Lyle Kent, the defendant, had sold this to her, and told her it was LSD. No other witness testified to corroborate the testimony of Debbie Wiese. This package was variously described as an envelope with white paper inside, a white piece of paper with erratic pencil markings, a blotter, and aluminum foil.
The four boys were then driven back to Henry by Debbie Wiese. Two of the boys went inside the local hotel and two went down to the river. Later all four rejoined and went to Randy Longman's house, from there to a nearby summer home, and then to Deitsch's pasture, which was near the summer home. The boys later split up and went their own ways.
On the same day, Officer Arnold Parker met Deitsch pursuant to a radio call from Chief Glen Killen of the Henry police. Deitsch led Officer Parker to his pasture where a young boy was observed among the horses requesting to be kicked. The boy was later identified as John Weger. Weger, who was described as incoherent and uncontrollable, was taken to a Peoria hospital for treatment.
At a bench trial before the Marshall County circuit court Lyle Kent was found guilty. The defendant introduced no evidence at this trial.
So far as the evidence is concerned, it is undisputed that no effort was made to chemically identify the substance represented as LSD. It also appears undisputed that the substance delivered was considered to be the substance represented.
Defendant was charged with the violation of section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1404), which provides:
"Except as authorized by this Act, it is unlawful for any person knowingly to deliver or possess with intent to deliver any substance which he represents to be a controlled substance. Any person who violates this Section is guilty of a Class 3 felony. The fine for violation of this section shall not be more than $15,000.00."
This section became effective in 1971 when the legislature adopted the Uniform Controlled Substances Act. This act also repealed the Uniform Narcotic Drug Act then in effect (Ill. Rev. Stat. 1969, ch. 38, pars. 22-1 through 22-49).
Section 38 of the Uniform Narcotic Drug Act provided in pertinent part:
"Whoever agrees * * * to unlawfully sell * * * any narcotic drugs to any person * * * and then sells * * * any non-narcotic liquid, substance or material shall be imprisoned * * *." Ill. Rev. Stat. 1969, ch. 38, par. 22-40.
Although no cases have reached our courts of review interpreting and applying section 404 (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1404), the defendant argues it should be given the same meaning and construction as section 38, the section repealed by the Illinois Controlled Substances Act in 1971.
A violation of section 38 consisted of three elements. First, an offer to sell a narcotic drug; second, the sale of a nonnarcotic substance and, third, knowledge on the part of the defendant that it was a nonnarcotic substance being sold. People v. Steele, 22 Ill.2d 142, 174 N.E.2d 848; People v. Harris, 19 Ill. App.3d 531, 311 N.E.2d 789; People v. ...