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

## 1d

### 1982Mr. 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 informationwas filed charging defendantwith criminal possession of dangerous drugs, a felony, in violation of section 45-9-102(1), MCA. The facts constituting the offensewere stated in the information as follows: 

# ".

. .thaton or about the 4th day of July, 1981, at the County of Lewis and Clark, State ofMontana, 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 "notguilty" and moved to dismiss the information "onthe 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'sbrief in response to defendant's motion to dismiss: "Microscopic examination of the sample, Lab # OQ33-071781,was positive formarihuana in the form of hashish. Analysis of this material by this layer chromatographywas also positive for the presence of tetrahydrocannabinol, the controlled substance inmarihuana, and other cannabinoidswhich are found inmarihuana."Without admitting its authenticity or waiving any objection thereto, defendant's reply brief acknowledged the contents of the lab report. After extensivebriefing but without an evidentiary hearing, the DistrictCourt 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 chargedwith violating section 45-9- 102(1), MCA, because he allegedly had more than one gram of hashish in his possession. Criminalpossession 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 "dangerousdrug" as "adrug, substance,

or immediate precursor in Schedules I throughV. 

# .." Hashish is not defined or listed under any of the prescribed schedules. Withoutmore,we do not find the facts as alleged sufficient to state a crimeunder Montana law. That "theparticular 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 isbased upon two assertions both legally flawed. First the State argues that hashish,being "amaterial, compound, mixture, or preparationwhich 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 isplausible and may eventually raise a question of proof, it does not obscure the defect in the information. The informationdoes not allege possession ofmarijuana

or tetrahydrocannabinols in the form of hashish; itmerely 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 cannotbe cured by reference to an affidavit filed in support of the information, cf. Statev. Dunn (1970), 155Mont. 319, 472 P.2d 288;

nor will the contentsof an untimely lab report suffice to provide themissing 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 thatMontana law specifically provides a different penalty forpossession of hashish. The State contends that because the legislaturemade a reference to hashish in its penalty provisions,possession of hashish is adequately defined as a crimeunder Montana law. The State iswrong. The necessary elements of a statutory offense cannotbe supplied by thepenalty section of a statute. State

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

### v. Nelson (1978), 178Mont. 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), 165Mont. 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), 116Mont. 478, 482, 154 P.2d 484, 486. Accordingly, we affirm.

Chief Justice

WeCon 

# 4

-- Justices 

## 'Mr. JusticeFred J. Weber dissents: I respectfullydissent 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 DANGEROUSDRUGS, 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 themajority opinion holds that because the informationdoes not allegepossession of marijuana or tetrahydrocannabinols in the form of hashish, and instead alleges possession of hashish, the information is defective and the omission'isfatal. This is a more technical standard of criminal pleading thanwe 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 iswhether a person of commonunderstanding would know what is intended to be charged. State

### v. Kirkland (1979),Mont., 602P.2d 586, 590, 36 St.Rep. 1963, 1966. 'Thegeneral rule is that when the facts,acts and circumstances are set forthwith sufficient certainty to constitute an offense, it is not a fatal defect that the complaint gives the offense an erroneousname.' Statev. Schnell (1939), 107Mont. 579, 88 P.2d 19, 22. 

# . ." The Courtpointed out that the information in Longneck charged himwith the crimeof deliberate homicide. Under that charge,Longneck also could have been convicted of thelesser 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 countof aggravated assault to cover the nonfatal, first assault; or, it should have charged the defendantwith 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 whatwas intended to be charged and againstwhat he was required to defend. He could not have been surprised ormisled at trial." 640P.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 'allplant 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 (5thed. West, 1979), hashish is a 'drugwhich 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, SensualDrugs,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 ismade criminal under the act." Applying the rationale of Longneck to the present case, Iwould hold that while ideally, the information should have charged that the defendantdid have under his control and possession marijuana or tetrahydrocannabinols in the form ofhashish, the facts detailed in the information are sufficient to inform the defendant of the crimewith 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" iswidely 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. Ido not see how the defendant could claim that the form of the informationcould have resulted in the surprise or misleading of the defendant at trial. Iwould reverse the District Court.