OPINION
TOM G. DAVIS, Judge.Appeal is taken from a conviction for possession of tetrahydrocannabinol. Art. 4476-15, Sec. 4.02(c)(Q), V.A.C.S. After the jury found appellant guilty, the court assessed punishment at 5 years.
By way of a supplemental brief, appellant challenges the indictment in this cause for the first time on appeal. He maintains that the indictment is fundamentally defective for failing to allege all of the elements of the offense. The indictment in this cause alleges in pertinent part that on February 5, 1978, appellant did:
“knowingly and intentionally possess a controlled substance listed in penalty group 2, to-wit: tetrahydrocannabinol.”
In Few v. State, 588 S.W.2d 578 (Tex.Cr.App.), this Court found that a felony information which attempted to allege the offense of possession of tetrahydrocannabinol was fundamentally defective for failing to allege all of the elements of the offense. In that case, the Court stated as follows:
“So, here, the phrase ‘other than marihuana’ is a constituent element of the offense — albeit a negative one. Having structured the statutory provisions with which we are here concerned in the manner it did, the Legislature obviously chose to delineate marihuana and other THC offenses by prescribing the latter as it did — ‘tetrahydrocannabinols other than marihuana.’ Only in that fashion is the latter offense stated and, likewise, only in that fashion is it to be alleged by indictment or information.
“Given the Legislative understanding, then, we must conclude that a charging instrument alleging possession of THC— without more, not only fails to allege an offense under state law — the felony offense of ‘tetrahydrocannabinols other than marihuana’ — but also, because THC — without more — embraces marihuana, fails to state the elements essential to determine the jurisdiction of the court to try the case and the range of punishment which may be assessed. See Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975), following the rule of Standley v. State, 517 S.W.2d 538, 540-541 (Tex.Cr.App.1975) and its progeny, including, Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Peoples v. State, 566 S.W.2d 640 (Tex.Cr.App.1978) and, most recently, Ex Parte Barcelo, 577 S.W.2d 499 (Tex.Cr.App.1979).” Id. at 585.
The indictment in the instant cause suffers from the same defect as found in the felony information in Few. Namely, the indictment fails to contain the phrase “other than marihuana” which has held to be a constituent element of the offense. An indictment which fails to allege all of the essential elements of an offense is void and subject to challenge at any time since the court would have been without jurisdiction to hear the case. Ex Parte McCurdy, 571 S.W.2d 31 (Tex.Cr.App.).
The judgment is reversed and the indictment is ordered dismissed.
Before the Court en banc.