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People v. Dunlap

OPINION FILED NOVEMBER 22, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

BRIAN K. DUNLAP ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Williamson County; the Hon. William A. Lewis, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 17, 1982.

Defendants Brian Dunlap and Revel Freeman were charged by information in the circuit court of Williamson County with having committed an unlawful calculated criminal drug conspiracy, with unlawful manufacture of a controlled substance and with unlawful possession with intent to manufacture a controlled substance, in violation of Sections 405 and 401(a)(7) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1405, 1401(a)(7)). The substance alleged to have been the subject of these offenses is psilocyn, a Schedule I hallucinogen. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1204(d)(15).) According to the testimony offered by the State at defendants' preliminary hearing, this substance was supposed to have been found in Psilocybe mushrooms alleged to have been seized from defendant Freeman's Carterville, Illinois, residence.

The defendants moved to dismiss these informations on various constitutional and statutory grounds. Following an evidentiary hearing and arguments of counsel, the court granted the motions. It held that the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1100 et seq.) violated defendants' due process rights as applied to the possession of Psilocybe mushrooms, because the statute did not specify which types of mushrooms were prohibited under that Act. The court also stated that the statute did not specifically proscribe possession of the mushrooms themselves, as opposed to the extracted psilocyn, and that the cultivation of Psilocybe mushrooms was not illegal under the definition of "manufacture" contained in section 102(z) of the Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1102(z)). From this order of dismissal, the People have appealed to this court pursuant to Supreme Court Rule 604(a)(1). (87 Ill.2d R. 604(a)(1)).

This appeal presents four separate issues:

(1) Does the listing of psilocyn in section 204(d)(15) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1204(d)(15)) suffice to prohibit the possession of mushrooms which, in their natural state, contain psilocyn?

(2) If the Illinois Controlled Substances Act prohibits the possession of mushrooms which, in their natural state, contain psilocyn, then does the Act violate due process in failing to specify that mushrooms containing psilocyn are proscribed?

(3) Does the cultivation of a plant containing a controlled substance constitute the "manufacture" of that substance?

(4) Is the classification of psilocyn as a Schedule I substance arbitrary and thus violative of the principle of equal protection of the laws?

We consider these questions in the order presented above.

At trial, the defendants argued, and the trial court agreed, that the Illinois Controlled Substances Act does not prohibit the possession of mushrooms containing psilocyn. In support of this result, defendants invite comparison with other portions of the Illinois Controlled Substances Act, as well as with provisions of the Cannabis Control Act. For example, the opium poppy and poppy straw, natural source of opium, are listed in Schedule II along with several forms of opium (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1206(b)(1)(1) through 1206(b)(1)(6), 1206(b)(3)), and coca leaves, the natural sources of cocaine, are prohibited along with several derivatives of those leaves. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1206(b)(4).) Also, the Cannabis Control Act proscribes possession of the Cannabis sativa plant and its seeds and resin. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 703(a).) Defendants refer to the maxim of statutory construction known as "expressio unius est exclusio alterius," or, the expression of one thing in a statute implies the exclusion of all others. (People v. Caryl (1977), 54 Ill. App.3d 537, 369 N.E.2d 926.) Applying this maxim to the Illinois Controlled Substances Act, the defendants argue that the reference to these other natural sources of controlled substances, combined with the omission of Psilocybe mushrooms from the Act, implies that possession of these mushrooms is not illegal.

This reasoning has been employed in several Canadian cases. In Regina v. Parnell (1979), 51 Can. Crim. Cas.2d 413, the defendant was charged under the Canadian Food and Drugs Act (Can. Rev. Stat. 1970, ch. F-27) with possession of a restricted drug listed in that Act, namely psilocybin. She was alleged to have possessed mushrooms which contained psilocybin. The British Columbia Court of Appeal held that the Food and Drugs Act, by failing to refer to mushrooms as well as psilocybin, could not be construed as prohibiting possession of the mushrooms. Parnell has been followed in other recent Canadian decisions. (Regina v. Cartier (1980), 13 Alta.2d 164, 54 Can. Crim. Cas.2d 32; Re Coutu (1981), 61 Can. Crim. Cas.2d 149.) Defendants urge this court to reach the same result under the Illinois Controlled Substances Act.

However, the Parnell, Cartier and Coutu opinions are dependent upon the wording of the Canadian Food and Drugs Act, which we find quite dissimilar from that of the Illinois Controlled Substances Act. Section 41(1) of the Food and Drugs Act prohibits the possession of a "restricted drug" (Can. Rev. Stat. 1970, ch. F-27, sec. 41(1)), which is defined in section 40 as "any drug or other substance included in Schedule H" (Can. Rev. Stat. 1970, ch. F-27, sec. 40). One of the Schedule H substances is psilocybin or any salt thereof. According to Chief Justice Nemetz, it was the narrow definition of the term "restricted drug" which persuaded him that "the mere possession of the substance psilocybin as an integral part of the natural plant cannot support a conviction for possession of a restricted drug * * *." Regina v. Parnell (1979), 51 Can. Crim. Cas.2d 413, 414.

As a comparison, Chief Justice Nemetz referred to the definition of "narcotic" in section 2 of the Canadian Narcotic Control Act as "any substance included in the schedule or anything that contains any substance included in the schedule." (Can. Rev. Stat. 1970, ch. N-1, sec. 2.) He noted that the first three paragraphs of the schedule to the Narcotic Control Act included the opium poppy, coca, and Cannabis sativa, as well as preparations and derivatives from those sources. He concluded that in enacting the Narcotic Control Act, "Parliament intended to prohibit the plant as well as the derivative drug." Regina v. Parnell (1976), 51 Can. Crim. Cas.2d 413, 415.

That portion of Schedule I in the Illinois Controlled Substances Act which contains psilocyn lists "any material compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1204(d).) The defendants argued at trial, although they have not done so on appeal, that the General Assembly did not intend to prohibit the possession of "any material" containing these substances because there is no comma between the words "material" and "compound" in this provision. Yet, no definition for the phrase "material compound" has been offered by the defendants, nor have we been able to discern what a "material compound" would be. As the People point out, the series of words "material, compound, mixture, or preparation" appears 12 times in the Schedules to the Illinois Controlled Substances Act, and in these occurrences, "material" is separated from "compound" by a comma 10 times (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1206(d), 1206(e), 1208(b), 1208(c), 1208(d), 1208(f), 1210(b), 1210(c), 1210(d), and 1210(e)), while the comma is omitted from that location only twice (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 1204(d), 1204(e)). The current version of the Act has resolved any apparent inconsistency among these provisions (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1204(d), 1204(e)) by inserting a comma between "material" and "compound" in all 12 locations. While normally it is presumed that a legislative amendment is designed to effectuate a change in the law, that presumption may be overcome by the circumstances and substance of the amendment. (People v. Youngbey (1980), 82 Ill.2d 556, 413 N.E.2d 416). Because, in construing the same words or phrases which occur in different parts of a statute, those words or phrases should be given the same meaning (People v. Lutz (1978), 73 Ill.2d 204, 383 N.E.2d 171), we believe that the General Assembly merely intended to clarify existing law. Consequently, a comma must be read between "material" and "compound" in sections 204(d) and 204(e) of the 1979 version of the Illinois Controlled Substances Act.

• 1 More importantly, however, the defendants argue that even the broad language purporting to include within Schedule I "any material * * * which contains any quantity of * * * psilocyn" cannot proscribe the possession of Psilocybe mushrooms without specifically mentioning this natural source of psilocyn. They direct our attention to the well-established rule that penal statutes are to be strictly construed. (People v. Robinson (1982), 89 Ill.2d 469, 475, 414 N.E.2d 674.) Nonetheless, it must be cautioned that this rule of construction should not be so rigidly applied as to defeat the plainly expressed intent of the legislature. (People v. Bratcher (1976), 63 Ill.2d 534, 349 N.E.2d 31; People v. Jones (1981), 100 Ill. App.3d 831, 426 N.E.2d 1214.) It is our opinion that the meaning of section 204(d) of the Illinois Controlled Substances Act is expressed without ambiguity. The words "any material * * * which contains any quantity of * * * psilocyn" mean exactly that — any ...


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