Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Winnebago
County, the Hon. John C. Layng, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decision of the appellate court reversing the armed-violence conviction of defendant, Alan Earl Hall, in the circuit court of Winnebago County.
Defendant was arrested by undercover agents of the Department of Law Enforcement when he attempted to sell them cannabis at his home. He was subsequently charged in a three-count information, only the first two counts of which are relevant to this decision. They charged:
That on the 24th day of March, 1978 in the County of Winnebago * * *, Alan Earl Hall committed the offense of Violation of the Cannabis Control Act, in that he knowingly and unlawfully possessed, with intent to deliver, a substance containing more than 500 grams of cannabis, in violation of paragraph 705(e), Chapter 56 1/2, Illinois Revised Statutes.
That on the 24th day of March, 1978, in the County of Winnebago * * *, Alan Earl Hall 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, in violation of Paragraph 33A-2, Chapter 38, Illinois Revised Statutes."
The evidence adduced at trial was that two agents of the Department of Law Enforcement had set up a meeting at defendant's house, where they were to buy cannabis from defendant. Agent John Hindes testified that he and defendant entered the house and defendant placed a garbage bag containing marijuana on the kitchen counter. Hindes then left the house, ostensibly to get the money from his car to pay for the marijuana, and returned with his partner, Agent Charles Bradley. This much was not disputed.
What happened next was the subject of conflicting testimony. Hindes asserted that he displayed his badge at this point and announced that defendant was under arrest. Defendant then reached into his coat pocket. Bradley shouted to Hindes, "He's got a gun," and Hindes grabbed it and refused to let go. Hindes stated that he then put his own gun back in his pocket, picked defendant up, set him down in the kitchen sink, and wrestled defendant's gun from his hands. The defendant's version of the arrest was that his gun was in a cupboard in the kitchen at the time, rather than in a holster underneath his coat as Hindes had testified, and that he never drew it or threatened either officer with it. Rather, both agents drew their guns and Hindes thrust his in defendant's stomach. He grabbed at Hindes' gun instinctively, whereupon Hindes showed his badge for the first time, announced the arrest, turned defendant around and made him let go of the gun. Hindes then went through defendant's pockets and asked him if he kept a gun in the house; defendant told him that it was in the cupboard, and Hindes took it.
The jury returned a verdict of conviction for possession of cannabis with intent to deliver and armed violence, and acquitted the defendant of assault, which was charged in count III of the information. Defendant filed a motion in arrest of judgment, asserting that the armed-violence conviction should be set aside because count II of the information failed to set forth the necessary elements of the predicate felony. The motion was denied. The appellate court, in reversing, held that the failure to state the elements of the underlying felony impermissibly deprived defendant of notice as to what the State would allege he was doing while armed with a gun. (People v. Hall (1981), 99 Ill. App.3d 196.) We allowed the State's petition for leave to appeal.
Armed violence may be charged "when, while armed with a dangerous weapon, [defendant] commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.) The predicate felony alleged in count II of the information is violation of section 5(e) of the Cannabis Control Act. That section (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 705(e)) can be violated by any of four acts. The statute makes it "unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis." The problem in this case arises from the omission in count II of any allegation stating which of the four acts set forth in section 705 of the Cannabis Control Act the defendant was committing while armed with a revolver. Defendant therefore contends the information did not give him adequate notice of the specific crime with which he was charged.
The State responds that count I of the information charges the defendant with possession of cannabis with intent to deliver: it therefore urges that the information should be read as a whole and that the charge contained in count I cures any ambiguity in count II. We agree with the State's argument under the facts of this case.
Constitutional provisions (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8) and statutes of this State (Ill. Rev. Stat. 1977, ch. 38, par. 111-3) require that an information set forth the nature and elements of the offense charged and that it be sufficiently specific in so doing as to apprise the defendant with reasonable certainty of the offense with which he is charged, so that he will be able to prepare a defense and plead any acquittal or conviction which results as a bar to future prosecutions. (People v. Heard (1970), 47 Ill.2d 501; People v. Shelton (1969), 42 Ill.2d 490; People v. Ross (1968), 41 Ill.2d 445, cert. denied (1969), 395 U.S. 920, 23 L.Ed.2d 237, 89 S.Ct. 1771.) This requirement applies to the predicate felony in a count charging armed violence just as it does to a count charging the underlying felony alone. (People v. Miles (1981), 96 Ill. App.3d 721; People v. Van Winkle (1980), 86 Ill. App.3d 289.) The rule protects the defendant against being forced ...