APPEAL from the Circuit Court of Kane County; the Hon. PAUL W.
SCHNAKE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The State appeals from a judgment which denied its petition for forfeiture and ordered the return of $3,320 in United States currency to the defendant, Theodore Snyder. The money was seized pursuant to a search warrant issued in connection with charges against defendant under the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 701 et seq.). Defendant pled guilty to the offense of unlawful possession of cannabis (35 pounds) with intent to deliver and was sentenced to 6 months of periodic imprisonment and fined $1,000. Thereafter Snyder moved for return of the seized currency. The State then filed its petition to forfeit pursuant to section 12(a)(4) of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 712(a)(4)).
Section 12(a)(4) provides as pertinent:
"(a) The following are subject to forfeiture:
(4) all money, things of value, books, records, and research products and materials including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this Act." Ill. Rev. Stat. 1973, ch. 56 1/2, par. 712(a)(4).
Whether the money seized in Snyder's apartment was "used, or intended for use in violation of this Act," is in issue.
• 1 The State first contends, and we agree, that forfeiture proceedings are in rem against the items used in the commission of an offense and, generally, they are considered civil in nature, with the result that the State must prove its right to the property by a preponderance of the evidence rather than beyond a reasonable doubt. (People v. Moore, 410 Ill. 241, 248 (1951); Dufauchard v. Ward, 51 Ill. App.2d 42, 46 (1964).) Essentially a factual question is raised. We therefore must defer to the judgment of the trial court unless his ruling is against the manifest weight of the evidence. People ex rel. Penrod v. Chicago & North Western Ry. Co., 17 Ill.2d 307, 311 (1959).
• 2 The parties have not cited nor have we found any precedent bearing directly on the statute before us. Money is, of course, inherently legal and is therefore not an item whose possession alone constitutes a criminal offense and is therefore not contraband unless used in an unlawful manner. (Cf. People v. Steskal, 55 Ill.2d 157, 159 (1973).) Further, where an article is not contraband per se its use must have a rational relationship to an unlawful purpose before it is subject to forfeiture. (Boling v. Division of Narcotic Control, 24 Ill.2d 305, 308 (1962).) In gambling cases money is considered contraband when it constitues a "functional integral part" of a gambling operation. See People v. Moore, 410 Ill. 241, 250 (1951); Dufauchard v. Ward, 51 Ill. App.2d 42, 47 (1964); People v. Wrest, 345 Ill. App. 186, 195 (1951); Annot., 19 A.L.R.2d 1228 (1951).
The State argues and we agree that the same standard should apply to the present fact situation. Defendant, however, argues the gambling cases should be distinguished on the basis that money is a necessary and therefore an integral part of the gambling offense, but is not similarly connected with the offense of possessing or delivering marijuana and therefore is not an integral part of that offense.
We do not find defendant's argument persuasive. Defendant pleaded guilty and was convicted under the provision of the Act which makes it "unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 705.) The word "deliver" is defined in the statute so as to specifically include sales transactions.
"(c) `Deliver' or `delivery' means the actual, constructive or attempted transfer of possession of cannabis, with or without consideration, whether or not there is an agency relationship." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 703(c).)
This definition explicitly recognizes that a marijuana delivery may often involve monetary or other consideration passing in exchange for the marijuana. (See, e.g., People v. Hesler, 39 Ill. App.3d 843, 845 (1976); People v. Bruce, 36 Ill. App.3d 524, 525 (1976); People v. Cooper, 17 Ill. App.3d 934, 937 (1974).) Thus money may in particular circumstances be an integral part of the offense of possession of marijuana with intent to deliver.
• 3, 4 We agree with the State's contention that the record makes it manifestly evident that the $3,320 in cash was an integral part of a marijuana business conducted in defendant's home in violation of the Cannabis Control Act. Investigators not only seized approximately 35 pounds of marijuana valued at approximately $5,250 but also seized items connected with weighing, processing and packaging the marijuana. The possibility that these items had an innocent function was negated by the defendant's own testimony in which he acknowledged his kitchen contained "paraphernalia used in the processing and distributing of marijuana."
The connection between the processing and distributing operation and the money was clearly demonstrated by a record book found in a locked cabinet along with the $3,320 in cash. Defendant not only admitted ownership of the book, but also admitted that it contained an account of marijuana transactions and that he made some of those transactions. The testimony of one of the investigators involved in the search, corroborated by the defendant, indicates that the book records transactions with a variety of persons over a period of several months. For instance the account of an individual named "Baby" shows transactions amounting to $23,510 during the months of October, November and December just prior to the search and defendant's arrest. Other sales during approximately the same time span involved an individual named "Tree" ...