APPEAL from the Circuit Court of Adams County; the Hon.
RICHARD F. SCHOLZ, JR., Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Can the roots, moisture, and immature stalks of the marijuana plant constitute "substance containing cannabis"?
Newell was found guilty by a jury of the offenses of possession of more than 500 grams of cannabis and of production of cannabis. Judgment was entered only on the possession verdict and he was sentenced to 4 years in the Department of Corrections. On appeal, he contends that the State failed to prove that he was in possession of more than 500 grams of a substance containing cannabis.
The evidence at trial showed that a large number of plants were seized from a garden on property adjacent to that of the defendant. One of the Adams County deputy sheriffs who seized the plants testified that they were growing in four distinct rows in a garden plot which measured 20 by 40 feet. There were approximately 200 plants in this cultivated area and there were no weeds present in the area of the seized plants. He characterized the seized substances as marijuana.
Within an hour of the seizure, the defendant arrived home and was immediately taken into custody by the deputy. During the trip to the sheriff's office, he acknowledged that he had planted the marijuana plants that had been seized.
The plants were subsequently weighed on a scales located at the sheriff's department and were found to weigh in excess of 600 grams. They were then transported to a local pharmacy where they were again weighed and at this time it was established that they weighed 609.1 grams.
Three plastic bags containing the plants were delivered to a drug analyst for the Illinois Department of Law Enforcement on November 9, 1978. The analyst, who normally tested dried plant material, split open each bag, removed the roots and dried the material. He testified that the plants were not mature and that growing plants contain water. When he subsequently weighed the plants, now dried and without roots, they weighed 87.1 grams. He then removed a sample from each bag and performed a microscopic examination and a modified Levine-Duquenois test. To the best of his knowledge all of the plant material was Cannabis sativa. He admitted that he could not state that all the plants were cannabis since he only examined a portion of each bag, not each individual plant.
The defendant presented no evidence and the jury returned verdicts of guilty.
An element of proof necessary to sustain a conviction under section 4(e) of the Cannabis Control Act is the weight of the substance containing cannabis. The weight must be in excess of 500 grams. (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704(e).) Defendant initially contends that the evidence produced by the State was not sufficient to establish a weight in excess of 500 grams.
Defendant concedes the State may legitimately include the weight of each plant which was Cannabis sativa in arriving at the weight of 500 grams. He argues, however, that such aggregation cannot extend to any ...