dissenting:
With reliance on People v. Binkley, 25 Ill. App. 3d 27, 322 N.E.2d 514, People v. Robinson, 14 Ill. 2d 325, 153 N.E.2d 65, and Federal cases dealing with the proof of the identity of illegal substances by circumstantial evidence, I respectfully dissent. I believe that the majority has improperly set aside the verdict of the jury. There was sufficient evidence before the jury from which it could find beyond a reasonable doubt that the substance in question was marijuana.
In People v. Robinson, our supreme court was confronted with the contention that there was no evidence to establish that a powder defendant transferred was heroin when no evidence of a chemical analysis of the powder was admitted at trial. The supreme court rejected this contention stating:
“While the evidence relating to the nature and identity of the powder obtained from the defendant is in part circumstantial, this jurisdiction has long been committed to the principle that a conviction may be based on circumstantial evidence, * * *. [Citations.] In other words, as is stated in People v. Susanec, 398 Ill. 507, 513, circumstantial evidence is legal evidence and when it is of such convincing nature that it satisfies the jury of the guilt of the defendant, the verdict must be sustained by the reviewing court.” 14 Ill. 2d 325, 330-31.
The problem of proving beyond a reasonable doubt that the substance possesessed and delivered by a defendant was cannabis in the absence of a chemical analysis was addressed in People v. Binkley. In that case, this court affirmed the trial court’s finding of guilt and cited with approval a statement made by the court in United States v. Agueci (2d Cir. 1962), 310 F.2d 817, cert, denied, 372 U.S. 959, 10 L. Ed. 2d 12, 83 S. Ct. 1016. That statement was:
“Just as with any other component of a crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.” 310 F.2d 817, 828.
The majority of this court takes the view that the applicability of the broad language of the courts in Binkley and Robinson must be limited to the type of evidence presented in Binkley and United States v. Ewing (9th Cir. 1967), 386 F.2d 10, cert, denied, 390 U.S. 991, 19 L. Ed. 2d 1299, 88 S. Ct. 1192, in order to establish that the substance involved was cannabis. In both of these cases, as indicated in the majority’s opinion, there was testimony by someone familiar with, cannabis that he or she had smoked some of the substance in question and obtained the normal reaction associated with cannabis. I do not believe that these holdings should be so narrowly construed. Generally, an expert is qualified when because of his skill, training or experience he is able to form a more accurate opinion as to matters under consideration than the ordinary person. (People v. Pruitt, 16 Ill. App. 3d 930, 307 N.E.2d 142, cert, denied, 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232; People v. Johnson, 32 Ill. App. 3d 36, 335 N.E.2d 144.) In my opinion, Deputy Carrico was competent to identify the substance as marijuana based on his experience as a law enforcement officer. He had been involved in 40 marijuana arrests and his opinions regarding marijuana had been borne out in some instances by chemical analyses. His identification testimony revolved around the characteristic feel, smell and appearance of marijuana and went as follows:
“Q. Officer Carrico did you examine this very carefully to determine it was marijuana or what it was?
A. Yes, I did. I examined it as carefully as I could.
Q. Does marijuana have seeds in it in this form?
A. Yes.
Q. And is this material I have in the palm of my hand from that envelope, coming from that envelope, would you identify that as being marijuana?
A. That’s seeds, leaves and stems of the cannabis plant.
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Q. How would you describe the odor of that as distinguished from odors of similar plant life that is in the dried form?
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A. Marijuana has a sweetish, bitter, strong scent; retains its color more than other weeds of the variety we have around here. It remains greenish, has a strong, sweet, bitter odor.”
The jury could and did properly conclude beyond a reasonable doubt that People’s Exhibit 1 was marijuana from Deputy Carrico’s testimony and the evidence at trial which revealed the surreptitious manner in which both defendant Park and Barney Bass handled the substance when the police arrived. Evidence that transactions involving the substance have been carried on with secrecy or deviousness is one type of circumstantial evidence which has been held relevant to proving the identity of an illegal substance. See People v. Agueci; People v. Dolan (4th Cir. 1976), 544 F.2d 1219, 1221, and cases cited therein.
I find support for my belief that it is not necessary to produce testimony by one who has imbibed the alleged illegal substance in order to prove the identity of that substance in two Federal cases, United States v. Lawson (7th Cir. 1974), 507 F.2d 433, cert, denied, 420 U.S. 1004, 43 L. Ed. 2d 762,95 S. Ct. 1446, and United States v. Toliver (9th Cir. 1955), 224 F.2d 742. In Lawson there was no opinion testimony that the substance imported was cocaine. Nevertheless, the court found that there was sufficient circumstantial evidence from which the jury could have inferred that the material imported was cocaine. This evidence was: (1) that the substance was a white powder; (2) that defendant Lawson spoke of selling “cocaine”; (3) that Lawson was paid a substantial sum of money in cash for the substance; and (4) that the transaction was carried on in secrecy with the powder being packed into a cosmetic bag for transportation. In Toliver, a government witness did testify that a substance transferred to him was, in his opinion, heroin. However, in rejecting defendant’s contention that the evidence did not establish that the transfer involved was of heroin, the court found that there was ample evidence from which the jury could conclude that heroin was involved even in the absence of the witness’ own opinion, based upon evidence similar to that enumerated above with respect to the Lawson case. The informed opinion of Deputy Carrico and the other circumstances of record in this case provide, in my opinion, sufficient evidence for the jury’s finding that the substance was marijuana. This evidence is at least as probative as the evidence relied upon in these Federal cases.
I would have affirmed the judgment of the circuit court of Lawrence, County.