¶1concurring and dissenting.
¶2I concur in the opinion of the majority insofar as it affirms the conviction of Defendant for delivery of a narcotic drug. I am persuaded, however, that the evidence supports only a conviction for such crime as a class B felony. The opinion of the majority correctly cites our earlier cases holding that whether or not enhancement of the basic offense from a class B felony to a class A felony is controlled by the weight of the entire substance delivered, in cases where the contraband drug was delivered in an adulterate form, rather than by the weight of the contraband drug in pure form, contained in the substance delivered. This viewpoint was first adopted in Hall v. State (1980), 273 Ind. 425, 403 N.E.2d 1382 and has been followed in later cases, in all of which I concurred. Upon further reflection, however, I am of the opinion that we have been in error.
¶3In Hall, supra, we premised our decision upon a determination that the antecedent of the word "drug," in that portion of the statute determining the classification of the crime, was "narcotic drug, pure or adulterated" as used in the earlier portion of the statute defining the offense. That determination ignores a basic tenet of statutory construction requiring penal statutes to be strictly and narrowly construed and defies logic.
¶4The obvious purpose of the statute is to deter dealing in narcotic drugs. Surely no one can dispute that if delivery of a small quantity of the drug is an evil warranting punishment, the delivery of a greater quantity must be a greater evil and warrant a greater punishment; and therein lies the logic of a statute extracting a greater penalty from one delivering a quantity of the contraband in excess of three grams than is imposed upon one delivering a lesser quantity. Yet, under the Hall decision the penalty is determined by the quantity of the substance, both drug and adulterant, delivered rather than by the quantity of the drug delivered. Hence it is a greater offense to deliver .1 gram of a narcotic drug mixed with 2.9 grams of some substance which is not, in and of itself, contraband than it is to deliver 2.9 grams of the pure drug. I simply cannot ascribe such anomaly to the legislative intent.
¶5Accordingly, I would overrule Hall and its progeny and remand the cause to the trial court with instructions to modify the judgment in accordance with this opinion.
¶6HUNTER, J., not participating.