                          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 1 d 1982
Mr. 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 information was filed charging
defendant with criminal possession of dangerous drugs, a
felony, in violation of section 45-9-102(1), MCA.     The facts
constituting the offense were stated in the information as
follows:
            ". . .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 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 "not guilty" and moved to dismiss the information "on the
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 follow-
ing statement in the State's brief in response to defendant's
motion to dismiss:
            "Microscopic examination of the sample, Lab #
            OQ33-071781, was positive for marihuana in the
            form of hashish. Analysis of this material
            by this layer chromatography was also positive
            for the presence of tetrahydrocannabinol, the
            controlled substance in marihuana, and other
            cannabinoids which are found in marihuana."
Without admitting its authenticity or waiving any objection
thereto, defendant's reply brief acknowledged the contents
of the lab report.
     After extensive briefing but without an evidentiary
hearing, the District Court 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 charged with violating section 45-9-
102(1), MCA, because he allegedly had more than one gram of
hashish in his possession.    Criminal possession 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 "dangerous drug" as "a drug, substance,
or immediate precursor in Schedules I through V.    . ."
Hashish is not defined or listed under any of the prescribed
schedules.    Without more, we do not find the facts as alleged
sufficient to state a crime under Montana law.
     That "the particular 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 is based upon two assertions both
legally flawed.
      First the State argues that hashish, being "a material,
compound, mixture, or preparation which 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
is plausible and may eventually raise a question of proof,
it does not obscure the defect in the information.
      The information does not allege possession of marijuana
or tetrahydrocannabinols in the form of hashish; it merely
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 cannot be cured by
reference to an affidavit filed in support of the informa-
tion, cf. State v. Dunn (1970), 155 Mont. 319, 472 P.2d 288;
nor will the contents of an untimely lab report suffice to
provide the missing 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 that Montana law specifically provides a different
penalty for possession of hashish.         The State contends that
because the legislature made a reference to hashish in its
penalty provisions, possession of hashish is adequately
defined as a crime under Montana law.
      The State is wrong.        The necessary elements of a
statutory offense cannot be supplied by the penalty section
of a statute.     State v. Loudermilk (1976), 221 Kan. 157, 557
P.2d 1229, 1232, as cited by this Court in State v. Nelson
(1978), 178 Mont. 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), 165 Mont. 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), 116 Mont. 478, 482, 154 P.2d 484, 486.

     Accordingly, we affirm.


                               Chief Justice

      4
W e Con




--
Justices   '
Mr. Justice Fred J. Weber dissents:
     I respectfully dissent 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 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); 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 the majority opinion holds that because the
information does not allege possession of marijuana or
tetrahydrocannabinols in the form of hashish, and instead
alleges possession of hashish, the information is defective
and the omission'is fatal.   This is a more technical standard
of criminal pleading than we 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 is whether a
          person of common understanding would know
          what is intended to be charged. State v.
          Kirkland (1979), Mont., 602 P.2d 586, 590,
          36 St.Rep. 1963, 1966. 'The general rule
          is that when the facts, acts and circumstances
          are set forth with sufficient certainty to
          constitute an offense, it is not a fatal de-
          fect that the complaint gives the offense an
          erroneous name.' State v. Schnell (1939),
          107 Mont. 579, 88 P.2d 19, 22. . ."
The Court pointed out that the information in Longneck
charged him with the crime of deliberate homicide.   Under

that charge, Longneck also could have been convicted of the
lesser 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 count of aggravated assault to
          cover the nonfatal, first assault; or, it
          should have charged the defendant with 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 what was intended to
          be charged and against what he was required
          to defend. He could not have been surprised
          or misled at trial." 640 P.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
         'all plant 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 Dic-
         tionary (5th ed. West, 1979), hashish is a
         'drug which 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 can-
         nabis plant.' Tetrahydrocannibinol [sic] (THC)
         is the principal psychoactive ingredient in
         cannabis drugs. (Jones, Hardin and Helen,
         Sensual Drugs, Cambridge University Press,
         1977.) THC and marijuana are both listed
         in Schedule I. THC is a constituent of hash-
         ish, and hashish and marijuana are both deri-
         ved from the cannabis plant. In this way,
         hashish is defined as a dangerous drug, the
         possession of which is made criminal under
         the act."
    Applying the rationale of Longneck to the present case,
I would hold that while ideally, the information should have

charged that the defendant did have under his control and
possession marijuana or tetrahydrocannabinols in the form of
hashish, the facts detailed in the information are sufficient
to inform the defendant of the crime with 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" is widely 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.
I do not see how the defendant could claim that the form of

the information could have resulted in the surprise or
misleading of the defendant at trial.
     I would reverse the District Court.
