¶1 dissenting. I must respectfully dissent from the majority opinion. The proposed amendments to the indictments as they occurred are contrary to statute, the revised rules, case law, and the Ohio Constitution as more fully set forth below. While Crim. R. 7(D) permits amendments to indictments that do not change the name or identity of the crime, it is clear that these amendments in the indictments change the identity of the crimes.
¶2 R.C. 2945.75 states in part:
¶3 “(A) When the presence of one or more additional elements makes an offense one of more serious degree:
¶4 “(1) The affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements. …” (Emphasis added.)
¶5 The legislature by the very nature of R.C. 2945.75(A)(1) indicates that the degree of the offense is an element of the crime. When read in pari materia with Crim. R. 7(D), which requires the indictment to contain all elements of the offense, it is quite clear that the amount of the marijuana is an element necessary to be included in the indictment. Ohio *371 courts have held in the past that if a vital, material, identifying or characterizing element is not included in an indictment, an amendment cannot cure the indictment’s insufficiency. Harris v. State (1932), 125 Ohio St. 257; State v. Headley (1983), 6 Ohio St. 3d 475. In Headley the type of drug was omitted. The court held at 479:
¶6 «… The severity of the offense is dependent upon the type of drug involved. …
¶7 “Under this analysis, it is evident that R.C. 2925.03 sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved. As such, the type of controlled substance involved constitutes an essential element of the crime which must be included in the indictment. The omission of that information cannot be cured by amendment, …
¶8 The same rationale in Headley, supra, applies to the case at hand and would extend to the degree of the offense in this case. The defendant was originally indicted on a charge of complicity to trafficking in marijuana under R.C. 2925.03. Here the severity of the crime is determined by the amount of controlled substance and is an essential element to the indictment, since there are any number of offenses with which he could be charged under R.C. 2925.03, ranging from a minor misdemeanor to a felony of the second degree.
¶9 Pennsylvania Crim. R. 220 is Pennsylvania’s counterpart to Crim. R. 7(D) and provides that an amendment to an indictment is permissible so long as it does not charge an additional or different offense. It is quite similar to Crim. R. 7(D). In Pennsylvania the grade of a charged offense is an essential element of the crime and must be set forth in the indictment. Commonwealth v. Pletcher (1974), 29 Somerset Legal J. 29.
¶10 In Ohio, an amendment of the indictment changing the indictment from “knowingly cause physical harm” to “knowingly cause serious physical harm” heightens the degree or grade of the crime charged and alters an essential element of substance in an indictment and therefore it is an impermissible amendment under Crim. R. 7(D). State v. Johnson (Nov. 29, 1982) Hamilton App. No. C-810925, unreported. The state’s contention that any error involves notice only and is cured by a bill of particulars has been rejected in the past. When an indictment fails to provide' an essential element of the offense, a bill of particulars does not correct the insufficiency of the indictment. Campfield v. State (1950), 91 Ohio App. 74 [48 O.O. 244]; State v. Lisbon Sales Book Co. (1964), 176 Ohio St. 482 [27 O.O.2d 443], certiorari denied (1965), 379 U.S. 673.
¶11 Perhaps most persuasive is the constitutional argument. Section 10, Article I of the Ohio Constitution provides that “… no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury … Despite its obscure beginnings, the grand jury is firmly implanted in American jurisprudence as an institution vital to preventing potential tyrannical abuse of prosecutorial power. From its early inception in England (circa 1164) under the Constitution of Clarendon, the grand jury has been the established procedure by which criminal prosecutions were instigated for felonies. While initially it was a body provided to bring accusations and ássist the crown, it gradually shifted its function to one of protection against unfounded accusations and oppression during the reign of King Charles II (circa 1681). Initially in colonial America the grand jury was an instrument of the government in power; it became a safeguard against unfounded criminal charges being brought. The history of early America is replete *372 with grand juries which refused to succumb to the pressure of the executive branch, be it president, governor, justice department, attorney general or prosecuting attorney. The Ohio Legislature intended the grand jury to continue as a safeguard from historical abuse by the above.
¶12 Where an indictment is defective, it cannot be cured by the court; such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury. Harris v. State, supra; State v. Wozniak (1961), 172 Ohio St. 517, 520 [18 O.O.2d 58]; State v. Headley, supra.
¶13 Therefore, I would find that permitting the amendments to the indictments is contrary to Crim. R. 7(D); R.C. 2945.75(A)(1); Section 10, Article I of the Ohio Constitution; State v. Headley, supra; and State v. Wozniak, supra.