Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County,
the Hon. Horace L. Calvo, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1980.
After a jury trial in the circuit court of Madison County the defendant, David B. Lewis, was found guilty of the unlawful possession of cannabis with intent to deliver it in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(e)). Judgment was entered on the verdict, and the defendant was sentenced to three years' imprisonment. The appellate court reversed (75 Ill. App.3d 1009), and we granted the State's petition for leave to appeal. 73 Ill.2d R. 315.
The proceedings against the defendant commenced with the filing of an information charging that he knowingly and unlawfully delivered more than 500 grams of a substance containing cannabis in violation of section 5(e) of the Act. Section 5 makes unlawful the delivery of cannabis, prescribing different penalties whose severity varies with the amount involved. Section 5(e) provides:
"It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this section with respect to:
(e) more than 500 grams of any substance containing cannabis is guilty of a Class 2 felony." Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(e).
A Class 2 felony provides for a determinate sentence of not less than three years and not more than seven years. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(5).
The testimony presented on behalf of the prosecution was that the person to whom the defendant was charged with having delivered the cannabis was an undercover police officer. The officer had arranged a rendezvous for the purpose of purchasing a specified quantity of cannabis from the defendant at an agreed price. When the defendant arrived at the rendezvous in a van containing the cannabis, a second undercover agent handed the defendant a portion of the agreed purchase price, but the officers disclosed their identity and placed the defendant under arrest before the cannabis was physically transferred to them.
At the close of the prosecution's case the defendant moved for a directed verdict of not guilty on the ground that no delivery had been proved. The motion was denied. The defendant announced that he would not present any evidence, and renewed his motion, which was again denied. The case then went to the jury, which, over the objections of the defendant, was instructed on both the offense of delivery and the offense of possession with the intent to deliver. The jury returned a guilty verdict as to each offense. Following motions by the defendant for a new trial and in arrest of judgment, the trial court set aside the verdict finding the defendant guilty of delivery. The court let stand, however, the verdict finding the defendant guilty of possession with intent to deliver, and entered judgment upon it.
The principal issue upon appeal is the defendant's contention that he could not be convicted of the offense of possessing cannabis with intent to deliver it since the information did not charge him with that offense. The constitution and statutes of this State provide, of course, that no person shall be convicted of an offense which he has not been charged with having committed. (Ill. Const. 1970, art. I, secs. 2, 7, 8; Ill. Rev. Stat. 1979, ch. 38, pars. 111-3, 113-1, 113-4.) As was held in People v. Lewis (1940), 375 Ill. 330, however, at common law a defendant might be convicted of a lesser offense if each element of the offense was a necessary ingredient of an offense of higher degree with which he had been charged, and this court held that that principle did not violate due process. 375 Ill. 330, 334-35.
The principle of the common law doctrine is now embodied in section 2-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2-9), which provides:
"Included offense" means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish ...