APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Alan Earl Hall, the defendant, was convicted of the offenses of possession with intent to deliver cannabis (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 705(e)) and armed violence based upon violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 705(e)). He was found not guilty of aggravated assault by the jury. Defendant was sentenced to six years in prison for armed violence and three years in prison for the possessory offense, the sentences to run concurrently. He appeals from his conviction and sentence for armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2), contending that the information failed to set forth the elements of the predicate offense, that the armed violence statute is unconstitutional, that the court erred in refusing defendant's instruction defining armed violence, and that he was not proved guilty of armed violence beyond a reasonable doubt.
John Hindes, a special agent with the Illinois Department of Law Enforcement, testified that while working undercover defendant called him to arrange the sale of 11 pounds of cannabis. The transaction took place in defendant's home on March 24, 1978. Hindes testified that he entered defendant's kitchen and defendant displayed a bag of cannabis. Hindes went out to his car to notify other officers to move in for the arrest, then returned to the kitchen and informed defendant that he was under arrest. Hindes showed defendant his official badge for about 3 to 5 seconds and then stepped back a half-step.
Hindes testified that he then heard Agent Bradley, who was standing a few feet away, say that defendant had a gun. Hindes saw defendant's right hand come around and point a gun at his stomach. He reached out and grabbed the barrel of the gun before he actually saw it. After grabbing the gun, Hindes grabbed his own gun and stuck it in defendant's chest. Defendant grabbed Hindes' gun, whereupon Hindes told him to release the gun or he would shoot. Hindes further testified:
"A. At that point I got no response from him and he wouldn't turn loose his gun, so I took my gun and stuck it in my hip pocket, and I grabbed him, picked him up and sat him in the sink, and I twisted the gun and twisted it out of his hand."
The gun which was recovered from the defendant was introduced into evidence, together with the holster defendant was wearing while arrested.
Defendant admitted that he had arranged to sell cannabis to Hindes. He testified that during the transaction Agent Bradley had a gun in his left hand while standing behind him in the kitchen. As Bradley walked by him he felt something go into his stomach and grabbed it. It was a brown paper container. He then felt something else stuck in his stomach, which he also grabbed. That object was a gun. Hindes displayed his badge, turned him around, and began frisking him. Hindes asked him if he had any weapons and defendant replied that there was a pistol in the cupboard. The cupboard was about 4 or 5 feet from him at that point. The officers retrieved the gun from the cupboard. Defendant denied that he had a gun or holster on his person when arrested.
Two officers testified in rebuttal that they saw defendant wearing a holster when arrested.
• 1 We first reach the constitutional issue and conclude that the armed violence statute is not vulnerable on the grounds claimed. Defendant's main thrust is that the statute is void for vagueness because it does not make it clear whether the weapon must be utilized in the commission of the predicate offense. The Illinois Supreme Court has addressed this contention in People v. Haron (1981), 85 Ill.2d 261, 268, finding that the legislature clearly required only that the defendant be armed and that the use of the weapon in the commission of the predicate offense is not an element of armed violence.
Defendant also argues that the statute fails to set forth a mental state required by section 4-3 et seq. of the Illinois Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 4-3 et seq.). There is not substance to this argument, since a mental state is an element of the predicate felony. That is, the defendant must "possess with intent to deliver * * * cannabis." See Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705.
Defendant's claim that he was not proved guilty of armed violence beyond a reasonable doubt is primarily based on his contention that use of the weapon is an element of the offense of armed violence. In light of Haron, this contention is incorrect. The issue is, rather, whether defendant was armed at the time of his arrest. This was a question of fact for the jury to resolve on the basis of the conflicting evidence. We conclude that the evidence fully supports the finding that defendant was guilty beyond a reasonable doubt.
The dispositive issue in this case in our view is whether the information charging armed violence properly states an offense. Count II of the information, as pertinent, states that defendant committed the offense of armed violence "in that he, while armed with a dangerous weapon, to-wit: a certain revolver, committed a felony defined by Illinois law, in that he violated Chapter 56 1/2, Section 705(e) of the Illinois Cannabis Control Act." Defendant argues that the information is void because it is deficient in two respects: it does not set forth elements of the underlying offense upon which the armed violence charge is based, and it fails to specify which of the four ways defendant is charged to have violated section 5 of the Cannabis Control Act, which makes it unlawful for a person to:
"* * * manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705.)
Thus, he argues, the information fails to comply with section 111-3 of the Code of Criminal Procedure, which requires that the charging instrument set forth "the nature and elements of the offense ...