APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. MASSEY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of possession of codeine (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)) and sentenced to three years imprisonment. Defendant later filed a post-conviction petition alleging that the statute under which he was convicted was unconstitutional as violative of equal protection and due process. (U.S. Const., amends. V, XIV.) The trial court granted this petition, but execution of the order was stayed. Defendant appeals from his conviction, and the State appeals from the order granting defendant post-conviction relief. Both appeals are consolidated for our review.
The State contends that the statute involved is constitutional and that the trial court therefore erred in granting defendant's post-conviction petition. Defendant contends that (1) the trial court erred in denying his motion in arrest of judgment and his motion to dismiss the indictment; (2) he was not proven guilty beyond a reasonable doubt; and (3) the statute under which he was convicted is unconstitutional
The evidence adduced at defendant's trial is basically undisputed. On April 1, 1977, at 8 p.m., Chicago police officers Joseph Cannon and Richard Hoffman observed defendant in the vicinity of 5036 W. Madison Avenue. Several people individually walked up to defendant, had a conversation with him and then walked away. On each occasion, defendant walked over to a nearby gold, 1969 Buick, opened the trunk and took out a bottle of red liquid. He then returned, handing each individual one of the bottles. Defendant repeated these procedures a total of three times with three different persons.
After observing defendant for about 30 minutes, the officers pulled their car alongside the sidewalk where defendant was standing, took a bottle of the liquid from him and placed him under arrest. The search of defendant produced a key which opened the trunk of the Buick. Inside the trunk, the officers discovered a paper bag containing six unmarked bottles of a red liquid. Defendant and the evidence were then taken to the 15th District Police Station. There, the bag and bottles were sealed and placed into a narcotics safe.
The parties stipulated that if Christine Provost, a chemist for the Chicago Police Department, were called as a witness, she would testify that she examined the seven bottles of red liquid that were recovered from defendant. The first bottle tested contained about 85 milliliters, and the remaining six bottles each held about 95 milliliters of a substance containing codeine. The parties further stipulated that the liquid tested was the same type of substance which can be purchased with a prescription in a drug store, and is commonly used for medicinal purposes as cough syrup. After the State rested its case, defendant moved for a directed verdict, arguing inter alia, that the State failed to prove the proportion of codeine contained in the mixture. The trial court denied this motion. One witness was produced on defendant's behalf. Barbara Frazier-Weiner, Chief Counsel for the Illinois Dangerous Drug Commission, testified as to her interpretation of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1100-1603) (the Act).) That testimony, however, is not relevant to the disposition of this case.
Initially, we find it appropriate to examine defendant's contention that he was not proven guilty beyond a reasonable doubt. Because we believe that the State has failed in its burden to do so, consideration of the other issues raised by both parties is unnecessary.
The information in this case charges that defendant committed the offense of possession of a controlled substance in violation of chapter 56 1/2, section 1402(b), for his conduct on April 1, 1977, in knowingly and unlawfully possessing "a quantity of a substance containing a certain controlled substance, to wit: codeine." The information does not state under which schedule of the Act that the controlled substance falls. Section 402 of the Act provides as follows:
"Except as otherwise authorized by this Act, it is unlawful for any person knowingly to possess a controlled substance. Any person who violates this section with respect to:
(a) the following controlled substances and amounts, notwithstanding any of the provisions of subsections (b) or (c) to the contrary, is guilty of a Class I felony for which an offender may not be sentenced to death. The fine for violation of this subsection (a) shall not be more than $100,000;
(b) any other amount of a controlled substance is guilty of a Class 3 felony." Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b).
In order to sustain its burden of proof in this case, the State was required to prove beyond a reasonable doubt that defendant knowingly possessed "any other amount of a controlled substance" in violation of section 402(b). The critical question in this case is whether the State proved that the substance in question was a "controlled substance" as defined by the Act. A controlled substance is defined as a "drug, substance, or immediate precursor in the schedules of Article II of this Act." (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1102(g).) There are five such schedules under which drugs may be classified. (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1204, 1206, 1208, 1210, 1212.) Basically, the statutory scheme in promulgating these schedules establishes a gradient. For instance, substances listed under schedule I have the highest potential for abuse and no currently accepted medical use. (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1203, 1204.) At the other end of the scale are schedule V substances, or those having the lowest potential for abuse, currently accepted medical use, and the least possibility of physiological or psychological dependence if abused. (Ill. Rev. Stat. 1975, ch. 56 1/2, pars. 1211, 1212.) Schedule II, III and IV contain substances which fall between the two extremes, depending upon the properties that the drug possesses in relation to the criteria just mentioned. If a substance is not contained in one of the five schedules, then it is not a controlled substance under Illinois law.
Although there appeared to be much confusion at trial as to the manner in which the substance found in defendant's possession was to be classified, the State asserted that it fell under schedules II, III and V. We note that part of this confusion, at least as to the scope of schedule II drugs, is explained by the prosecutor's erroneous reliance at trial on an amended statute which was not in effect at the time of defendant's alleged offense. In April of 1977, when ...