dissenting:
A criminal offense in Illinois requires two basic elements: (1) a voluntary act and (2) the requisite mental state. (Ill. Rev. Stat. 1979, ch. 38, pars. 4 — 1, 4 — 3.) (The exception to the necessary-mental-state requirement is when the legislature imposes absolute liability on a particular voluntary act (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 9).) Section 4 — 3(a) of the Criminal Code of 1961 provides that one cannot be guilty of an offense unless he acts with one of the following mental states: intent (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6) or negligence (Ill. Rev. Stat. 1979, ch. 38, par. 4-7).
The statute with which we are concerned in this case provides:
“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. ***” (Ill. Rev. Stat. 1979, ch. 5614, par. 705.)
The court’s opinion states, “A conviction for delivery would necessarily require proof that the delivery was voluntary, or intentional, nevertheless, and it follows that the defendant must have had an intent to deliver the cannabis at the time that he did so.” (83 Ill. 2d at 302.) In the situation that confronts us, however, no delivery occurred. Consequently, there is no delivery from which the intent to deliver can be inferred. Further, the quoted language deviates from the statutory constraints of article 4 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 1 et seq.) in two respects. First, to support an unlawful-delivery conviction, the delivery must be voluntary and accompanied by a requisite mental state. Second, defendant must have one of the necessary mental states. That mental state is clearly delineated in section 5 of the Cannabis Control Act: “It is unlawful for any person knowingly to manufacture, deliver, ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 5614, par. 705.) All that is necessary to support a delivery conviction is a voluntary act accompanied by knowledge, not intent, of delivery.
The majority relies on People v. King (1966), 34 Ill. 2d 199, in holding that possession with intent to deliver is an included offense of delivery. In King, the defendant was charged with the unlawful sale of a drug. The court held that unlawful possession could be inferred from the unlawful sale. The statute on which King was based, however, differs in a significant respect from the statute that confronts us here. King involved the former Uniform Narcotic Drug Act, section 3 (Ill. Rev. Stat. 1961, ch. 38, par. 22 — 3), which provided in pertinent part:
“It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.”
As can be observed, no mental state is expressed. However, section 4 — 3(b) of the Code, in existence then and identical to the provision now in effect, stated, “If the statute does not prescribe a particular mental state applicable to an element of an offense ***, any mental state defined in Sections 4 — 4 [intent], 4 — 5 [knowledge] or 4 — 6 [recklessness] is applicable.” (Ill. Rev. Stat. 1961, ch. 38, par. 4 — 3(b).) Accordingly, the court found that the mental state required for unlawful possession could be inferred from the same mental state that had to be proved to support an unlawful-sale conviction.
Since the King decision, the legislature enacted the present Cannabis Control Act. The pertinent provision provides:
“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. ***” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 56%, par. 705.)
Here, a delivery conviction requires knowledge — a general intent — whereas possession with intent to deliver requires specific intent, a different mental state. The statutory language is not analagous to that in the former Uniform Narcotic Drug Act, and the court’s reliance upon King is, therefore, misplaced.
Specific intent is a more culpable mental state than knowledge and, therefore, possession with intent to deliver cannot be an included offense of delivery. In the instant case, because possession with intent to deliver is not an included offense of delivery, the defendant should have been separately charged with that offense. As stated by the majority, the constitution and statutes of this State provide that a person shall not be convicted for an offense with which he has not been charged.
For the above reasons, as well as for the reasoning found in my dissent in People v. Barker (1980), 83 Ill. 2d 319, I would affirm.