The error specified by the defendant is that the trial court failed to grant motions for acquittal at the conclusion of the state's case, and again after the return of the verdict. Since she has not supplied a transcript of the trial proceedings, however, she is unable to demonstrate the error which she claims occurred at the conclusion of the state's case. As to the motion made after the verdict was returned, Crim. R. 29(C) requires that such a motion be made within fourteen days, or such further time as the court may fix within the fourteen-day period. Here, the verdict was returned on December 11, 1984, and a notice of appeal to this court was filed December 31, 1984. Since the motion was not filed until January 3, 1985, and there is nothing in the record to indicate that the court fixed any further time beyond the fourteen-day period, the motion was properly overruled.
Second, notwithstanding any defects in the time or manner of the attack upon this indictment, I would not be prepared to say that it is fatally defective. In State v. Headley (1983), 6 Ohio St. 3d 475, an indictment was held to be fatally defective where it purported to charge a violation of R.C. 2925.03, but neglected to specify the type of drug involved. The court held this omission fatal to the indictment because the type of drug alleged determined the identity of the offense charged and the possible penalty which could be imposed. Without specifying the type of drug involved, the defendant was not given notice of the offense with which he was charged.
In the instant case, the indictment informed the defendant that she was charged with the sale of a Schedule I controlled substance. The type of controlled substance, and hence identity of the offense charged, was clearly identified.
While the indictment could have been more specific in the information provided, the failure in that respect is not a basis for holding the indictment fatally defective. See United States v. Gilbert (S.D. Ohio 1939), 31 F. Supp. 195. If defendant felt that the indictment was not sufficiently definite, it was *Page 194 her privilege and duty to request a bill of particulars.
Third, it is suggested that there is a questionable basis in the record of this case for the conclusion reached by the majority. Appellant has appended to her brief a purported scientific treatise which mentions that Psilocybe mushrooms denote a genus of mushrooms which includes a substantial number of species which are not hallucinogenic. Appended to appellee's brief is a purported scientific report which mentions that the hallucinogen psilocyn is one of the chemical constituents of the Psilocybe type of mushrooms. Since we have no record of what took place at the trial, we do not know if the author of either of these conflicting documents testified, or if either of the documents was before the trial court in a way that would enable it to be used in reaching any factual conclusions which may have been made. At any rate, it does not seem appropriate to rely at this time on either of these to the exclusion of the other.
For these reasons, I would affirm the judgment of conviction, and I respectfully dissent from its reversal.