People v. Simon

• Decision Date: 23 December 1980
• Docket Number: No. 79-2280,79-2280
• Citation: 91 Ill.App.3d 667,48 Ill.Dec. 254,416 N.E.2d 285
• Court: United States Appellate Court of Illinois
• Parties: , 48 Ill.Dec. 254 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Richard SIMON, Defendant-Appellee.

Page 285

416 N.E.2d 285

91 Ill.App.3d 667, 48 Ill.Dec. 254

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Richard SIMON, Defendant-Appellee.

No. 79-2280.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 23, 1980.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellant; Marcia B. Orr, Iris E. Sholder, Armand L. Andry, Asst. State's Attys., Chicago, of counsel.

Robert H. Aronson, Chicago, for defendant-appellee.

LINN, Presiding Justice:

At the conclusion of a hearing on defendant's motion to quash the indictment charging him with delivery of less than 30 grams of cocaine (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(b)), the trial court dismissed the indictment. The sole issue on appeal is whether the trial court's dismissal of the indictment is manifestly erroneous. We hold that it is and we reverse and remand.

The indictment sets forth the offense as follows:

Louis Angelopoulos ¹ and Richard Simon committed the offense of delivery of (a) controlled substance in that they unlawfully and knowingly delivered to Al Rodriguez otherwise than as authorized in the Illinois Controlled Substances Act of * * * Illinois * * *, less than thirty grams of a substance containing a controlled substance to wit: cocaine.

At the hearing on the motion to quash the indictment, defendant raised two arguments: (1) the legislature amended Schedule II of the Controlled Substance Act (Ill.Rev.Stat.1977, ch. 561/2, par. 1206(b)(4)) and struck the word "cocaine" from the section, therefore, "cocaine" is no longer a controlled substance and thus the indictment did not allege an offense; and (2) the word "cocaine" is a generic term for a broad spectrum of properties and only some properties are controlled and therefore the indictment is not sufficiently specific so as to be legally proper in form. The trial court based its dismissal of the indictment on defendant's first argument. Thereupon, the State instituted this appeal.

OPINION

The State contends that the trial court's dismissal of the indictment is manifestly erroneous. We agree.

When the sufficiency of an indictment is attacked in a pre-trial motion (Ill.Rev.Stat.1977, ch. 38, par. 114-1), the standard of review is to determine whether the indictment complies with the provisions of Section 111-3 of the Code of Criminal Procedure (Ill.Rev.Stat.1977, ch. 38, par. 111-3) which lists the requirements for charging an offense. (People v. Tuczynski (1978), 62 Ill.App.3d 644, 19 Ill.Dec. 325, 378 N.E.2d 1200.) This section requires that the charge: (1) be in writing; (2) state the name of the offense; (3) cite the statutory provisions alleged to be violated; and (4) set forth the elements of the offense. People v. Tuczynski.

Whether the requirements of the statute have been met must be judged in light of the purpose of the charging instrument (People v. Bissaillon (1977), 55 Ill.App.3d 893, 13 Ill.Dec. 645, 371 N.E.2d 362) and with reference to the plain ordinary meaning of the words of the charging instrument as read and interpreted by a reasonable person (People v. Banks (1979), 75 Ill.2d 383, 27 Ill.Dec. 195, 388 N.E.2d 1244). The function of an indictment, like any other charging instrument, is first to advise the accused of the nature of the accusation so he is able to fully prepare his defense, and second to serve as a bar to second prosecution for the same offense. People v. Tuczynski (1978), 62 Ill.App.3d 644, 19 Ill.Dec. 325, 378 N.E.2d 1200.

If the substance of the charge meets these standards, the indictment should not be dismissed. (People v. Bissaillon (1977), 55 Ill.App.3d 893, 13 Ill.Dec. 645, 371 N.E.2d 362; People v. Depratto (1976), 36 Ill.App.3d 338, 343 N.E.2d 628.) Thus, the sufficiency of an indictment is determined by the substance of the charge asserted and not by the linguistic technicalities of the language utilized in the indictment. (People v. Powell (1978), 72 Ill.2d 50, 18 Ill.Dec. 318, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 455.) In addition, an indictment is to be read as a whole and where the statute is cited in an indictment, as in the instant case, the statute and the charge are to be read together. People v. Jones (1975), 30 Ill.App.3d 1065, 333 N.E.2d 245.

a.

With these principles in mind, we now examine the indictment in the instant case and the trial court's asserted basis for dismissing the indictment.

The indictment charges defendant with delivery of less than 30 grams of "cocaine," a controlled substance, in violation of Section 401(b) (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(b)). Section 401 makes delivery of a controlled substance unlawful. Subsections (a) and (b) set forth the felony classifications and penalties which are dependent upon the amount of the controlled substance a person is charged with delivering or manufacturing. Subsection (a), for example, makes delivery of a substance containing more than 30 grams of "cocaine" a Class I felony (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(a)(2)). Subsection (b), the section defendant is charged with violating, classifies as a Class II felony, any other amount of a controlled substance enumerated in Schedules I or II (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(b)) which is a narcotic drug.

The trial court based its dismissal of the indictment on the use of the word "cocaine" in the indictment. The trial court concluded that delivery of "cocaine" was no longer an offense because in 1977, the legislature amended Schedule II to delete the specific word "cocaine." (Ill.Rev.Stat.1977, ch. 561/2, par. 1206(b)(4).) Prior to 1977, Schedule II listed the following:

"The controlled substances listed in this section are included in Schedule II.

(b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis;

(4) Coca leaves, cocaine and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves, which extractions do not contain cocaine or ecgonine.

* * * "

Ill.Rev.Stat.1975, ch. 561/2, par. 1206(b)(4). In 1977, the legislature amended this section as follows:

"The controlled substances listed in this section are included in Schedule II.

(b) Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:

(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves, which extractions do not contain cocaine or ecgonine;

* * *"

Ill.Rev.Stat.1977, ch. 561/2, par. 1206(b)(4). (emphasis added)

Although the word "cocaine" was deleted from the first line of subsection (b)(4) in 1977, the word "cocaine" remains in this section and various other sections of the Controlled Substances Act. (E. g. Section 401(a)(2) (Ill.Rev.Stat.1977, ch. 561/2, par. 1401(a)(2)) (delivery or manufacture of more than 30 grams of cocaine is a Class I felony); Section 402(a)(2) (Ill.Rev.Stat.1977, ch. 561/2, par. 1402(a)(2)) (possession of a substance containing more than 30 grams of cocaine is a Class I felony).) We agree with the State that if the legislature had intended a substantive change, so that "cocaine" was no longer a controlled substance, then all references to "cocaine" would have been deleted. ² " * * * It is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every paragraph, sentence, phrase and word. (Citation.) A statute should be so construed, if possible, that no word clause or sentence is rendered meaningless or superfluous. (Citations.)" (People ex rel. Barrett v. Barrett (1964), 31 Ill.2d 360, 364-65, 201 N.E.2d 849, 851.) "In construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary. (Citations.)" Moran v. Katsinas (1959), 16 Ill.2d 169, 174, 157 N.E.2d 38, 40.

The 1977 amendment to Section 206 which deleted the word "cocaine" from the first line of subsection (b)(4) is consistent with the Section 102(aa)(4) defining narcotic drugs and utilizes virtually the same language (compare Ill.Rev.Stat.1977, ch. 561/2, par. 1102(aa)(4) with Ill.Rev.Stat.1977, ch. 561/2, par. 1206(b)(4)). A narcotic drug both prior to and after 1977 and a Schedule II controlled substance after 1977 are ones derived from coca leaves but do not include substances derived from decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine. Compare Ill.Rev.Stat.1975, ch. 561/2, par. 1102(aa)(4) and Ill.Rev.Stat.1977, ch. 561/2, par. 1102(aa)(4) with Ill.Rev.Stat.1977, ch. 561/2, par. 1206(b)(4).

Both the 4th and 5th Districts of the Illinois Appellate Court have construed Section 102(aa)(4) defining narcotic drugs to include the word "cocaine." (People v. Anderson (1979), 74 Ill.App.3d 363, 365, 30 Ill.Dec. 173, 392 N.E.2d 938, 941 ("It is true that Section 102(aa)(4) (citation) defines cocaine as a 'narcotic' drug." (emphasis added)); People v. Vernor (1978), 66 Ill.App.3d 152, 154, 22 Ill.Dec. 891, 383 N.E.2d 699, 700 ("(Section 102(aa)(4)) defines 'narcotic drugs' to mean opium, the opiates and coca...