No. 81-547 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Appellant, 

vs. 

DAVID GERARD KELMAN , 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles Graveley, County Attorney, Helena, Montana 

Steve Garrison argued, Deputy County Attorney, Helena, 

Montana 

For Respondent: 

Harrison, Loendorf and Poston, Helena, Montana 

John Poston argued, Helena, Montana 

Submitted: May 14, 1982 

Decided: August 19, 1982 

Filed: AUG 1 d 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by the State from the District Court's 

dismissal of an information against defendant. We affirm. 

During a patdown search in the course of booking defendant 

for another offense, a Lewis and Clark County jailer seized 

from defendant a "cocaine spoon" and a baggie of what appeared 

to the jailer to be hashish. The substance weighed approximately 

25 grams. Thereafter, a direct information was filed charging 

defendant with criminal possession of dangerous drugs, a 

felony, in violation of section 45-9-102(1), MCA. The facts 

constituting the offense were stated in the information as 

follows : 

". . .that on or about the 4th day of July, 

1981, at the County of Lewis and Clark, 

State of Montana, the above-named defendant 

committed the offense of CRIMINAL POSSESSION 

OF DANGEROUS DRUGS, a felony, in that he did 

have under his control and possession certain 

narcotic drugs as defined in the Montana 

Dangerous Drug Act, to-wit: hashish (more 

than 1 gram);. . ." 

Arraignment was continued until the results of laboratory 

tests were received. Defendant subsequently entered a plea 

of "not guilty" and moved to dismiss the information "on the 

grounds that it [was] defective on its face in that it 

purport[ed] to charge a crime of possession of the dangerous 

drug 'hashish,' said drug not being a controlled substance 

under the Dangerous Drug Act." 

The laboratory analysis of the confiscated drug was 

brought to the attention of the District Court by the following statement in the State's brief in response to defendant's 

motion to dismiss: 

"Microscopic examination of the sample, Lab # 

OQ33-071781, was positive for marihuana in the 

form of hashish. Analysis of this material 

by this layer chromatography was also positive 

for the presence of tetrahydrocannabinol, the 

controlled substance in marihuana, and other 

cannabinoids which are found in marihuana." 
Without admitting its authenticity or waiving any objection 

thereto, defendant's reply brief acknowledged the contents 

of the lab report. 

After extensive briefing but without an evidentiary 

hearing, the District Court dismissed the information. The 

State appeals. 

Three questions, framed and answered by the District 

Court in its decision, are raised on appeal: 

(1) Is hashish a controlled substance under the Montana 

Dangerous Drug Act? 

(2) Is possession of more than one and less than sixty 

grams of hashish punishable as a felony offense? 

(3) Does an information charging possession of hashish, 

without mention of marijuana, state a crime? 

Issues one and two are provocative but their resolution 

is not critical to disposition of this case. The third 

controls the outcome of the appeal. 

Defendant was charged with violating section 45-9- 

102(1), MCA, because he allegedly had more than one gram of 

hashish in his possession. Criminal possession of dangerous 

drugs is committed if a person possesses any dangerous drug 

as defined in section 50-32-101, MCA. Subsection six of 

that statute defines "dangerous drug" as "a drug, substance, 

or immediate precursor in Schedules I through V. . ." 

Hashish is not defined or listed under any of the prescribed 

schedules. Without more, we do not find the facts as alleged 

sufficient to state a crime under Montana law. 

That "the particular acts constituting [a] crime [be 

stated], is more than a technicality; it is fundamental, and 

a substantial variance between the crime charged and the 

facts stated, or the omission of either, is fatal." 42 

C.J.S. Indictments and Informations, Slll at 992. 
The State contends that such an oversight is of no 

consequence; its position is based upon two assertions both 

legally flawed. 

First the State argues that hashish, being "a material, 

compound, mixture, or preparation which contains any quantity 

of. . .marijuana. . .[or] tetrahydrocannabinols. . .", is a 

Schedule I drug the possession of which is proscribed. 

Sections 45-9-102(1), 50-32-222(3), MCA. While the argument 

is plausible and may eventually raise a question of proof, 

it does not obscure the defect in the information. 

The information does not allege possession of marijuana 

or tetrahydrocannabinols in the form of hashish; it merely 

alleges possession of hashish, pure and simple. Such an 

omission is fatal. See, e.g., State v. Bishop (1974), 215 

Kan. 481, 524 P.2d 712. This defect cannot be cured by 

reference to an affidavit filed in support of the information, cf. State v. Dunn (1970), 155 Mont. 319, 472 P.2d 288; 

nor will the contents of an untimely lab report suffice to 

provide the missing link between the statutory offense 

charged and the facts alleged in the information. Without 

an allegation equating possession of hashish to possession 

of either marijuana or tetrahydrocannabinols, the information 

simply does not charge a criminal offense. 

The second argument proffered by the State relates to 

the fact that Montana law specifically provides a different 

penalty for possession of hashish. The State contends that 

because the legislature made a reference to hashish in its 

penalty provisions, possession of hashish is adequately 

defined as a crime under Montana law. 

The State is wrong. The necessary elements of a 

statutory offense cannot be supplied by the penalty section 

of a statute. State v. Loudermilk (1976), 221 Kan. 157, 557 
P.2d 1229, 1232, as cited by this Court in State v. Nelson 

(1978), 178 Mont. 280, 583 P.2d 435. Section 45-9-102(2), 

MCA, deals with sentencing, not definition of a separate 

offense. Accord, State ex rel. McKenzie v. District Court 

(1974), 165 Mont. 54, 64, 525 P.2d 1211, 1217. This Court 

will not indulge in inferences to create a crime that is 

neither adequately defined by law or charged by information. 

State v. Salina (1944), 116 Mont. 478, 482, 154 P.2d 484, 486. 

Accordingly, we affirm. 

Chief Justice 

We Con 4 

-- 

Justices ' 
Mr. Justice Fred J. Weber dissents: 

I respectfully dissent from the foregoing opinion of 

the Court. 

The information in pertinent part stated: 

". . .the above-named Defendant committed the 

offense of CRIMINAL POSSESSION OF DANGEROUS 

DRUGS - a felony as specified in Section 45- 

9-102 (I), MCA. 

"The facts constituting the offense are: that 

on or about the 4th day of July, 1981, at the 

County of Lewis and Clark, State of Montana, 

the above-named defendant committed the offense 

of CRIMINAL POSSESSION OF DANGEROUS DRUGS, a 

felony, in that he did have under his control 

and possession certain narcotic drugs as defined 

in the Montana Dangerous Drug Act, to-wit: 

hashish (more than 1 gram); contrary to the 

form, force and effect of the statute in such 

case made and provided and against the peace 

and dignity of the State of Montana." 

In substance the majority opinion holds that because the 

information does not allege possession of marijuana or 

tetrahydrocannabinols in the form of hashish, and instead 

alleges possession of hashish, the information is defective 

and the omission'is fatal. This is a more technical standard 

of criminal pleading than we have required in other cases. 

In State of Montana v. Emil Longneck (1981), Mont. 

, 640 P.2d 436, 438, 38 St.Rep. 2160, 2162, the Court 

stated: 

". . .The test to be applied in judging the 

sufficiency of an information is whether a 

person of common understanding would know 

what is intended to be charged. State v. 

Kirkland (1979), Mont., 602 P.2d 586, 590, 

36 St.Rep. 1963, 1966. 'The general rule 

is that when the facts, acts and circumstances 

are set forth with sufficient certainty to 

constitute an offense, it is not a fatal defect that the complaint gives the offense an 

erroneous name.' State v. Schnell (1939), 

107 Mont. 579, 88 P.2d 19, 22. . ." 

The Court pointed out that the information in Longneck 

charged him with the crime of deliberate homicide. Under 

that charge, Longneck also could have been convicted of the 
lesser included offense of aggravated assault. However, the 

Court pointed out that the proof showed two different assaults, 

and the assault of which he was convicted. was not the assault 

which was included in the deliberate homicide. In other 

words, Longneck was found to have assaulted the deceased but 

was not found to have been the assailant in the fatal assault. 

The Court further stated: 

"Ideally, the information should have named, 

in addition to the deliberate homicide charge, 

a separate count of aggravated assault to 

cover the nonfatal, first assault; or, it 

should have charged the defendant with only 

the nonfatal, first assault. Despite this 

inaccuracy in naming the offense, the facts 

detailed in the information and in the motion 

for leave to file the information served to 

inform the defendant of what was intended to 

be charged and against what he was required 

to defend. He could not have been surprised 

or misled at trial." 640 P.2d at 439, 38 

St.Rep. at 2163. 

In the present case, the District Court, in its opinion, 

stated as follows: 

"Marijuana is defined in the Montana code as 

'all plant material from the genus cannabis 

containing tetraohydrocannabinol [sic] (THC) 

or seeds of the genus capable of germination.' 

50-32-lOl(16). According to Black's Law Dictionary (5th ed. West, 1979), hashish is a 

'drug which is formed of resin scraped from 

the flowering top of the cannabis plant, as 

distinguished from marijuana which consists 

of the chopped leaves and stems of the cannabis plant.' Tetrahydrocannibinol [sic] (THC) 

is the principal psychoactive ingredient in 

cannabis drugs. (Jones, Hardin and Helen, 

Sensual Drugs, Cambridge University Press, 

1977.) THC and marijuana are both listed 

in Schedule I. THC is a constituent of hashish, and hashish and marijuana are both derived from the cannabis plant. In this way, 

hashish is defined as a dangerous drug, the 

possession of which is made criminal under 

the act." 

Applying the rationale of Longneck to the present case, 

I would hold that while ideally, the information should have 

charged that the defendant did have under his control and 

possession marijuana or tetrahydrocannabinols in the form of 
hashish, the facts detailed in the information are sufficient 

to inform the defendant of the crime with which he was 

charged and against which he was require? to defend. Today, 

a person of common understanding would readily comprehend a 

charge of the possession of hashish. The addition of the 

words marijuana in the form of hashish, or tetrahydrocannabinols 

in the form of hashish, would add very little, if anything, 

to the knowledge of the charge for a person of common understanding. 

The term "hashish" is widely known and understood in our 

present culture. I do not see how the defendant can seriously 

contend that he would have gained essential information for 

understanding the charge had it stated that the defendant 

was charged with tetrahydrocannabinols in the form of hashish. 

I do not see how the defendant could claim that the form of 

the information could have resulted in the surprise or 

misleading of the defendant at trial. 

I would reverse the District Court.