People v. Fulton

• Decision Date: 12 June 1967
• Docket Number: Gen. No. 51047
• Citation: 84 Ill.App.2d 280,228 N.E.2d 203
• Court: United States Appellate Court of Illinois
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph FULTON, Defendant-Appellant.

Page 203

228 N.E.2d 203

84 Ill.App.2d 280

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph FULTON, Defendant-Appellant.

Gen. No. 51047.

Appellate Court of Illinois, First District, First Division.

June 12, 1967.

Daniel P. Ward, State's Atty., County of Cook, Chicago, for plaintiff-appellee, Elmer C. Kissane, James B. Klein, Asst. State's Attys., of counsel.

Chauncey Eskridge, Chicago, for defendant-appellant, Stanley Bass, Chicago, of counsel.

BURMAN, Justice.

The defendant, Joseph Fulton, was indicted on the charge of abortion. He pleaded not guilty, waived a jury trial and on a finding of guilty by the trial judge was sentenced to a term of not less than two nor more than five years.

On this appeal the defendant contends: (1) that the statute under which he was indicted and convicted is so vague and indefinite that it fails to meet the requirements of due process of law guaranteed by the United States and Illinois constitutions; (2) that the indictment is unconstitutional and void because each member of the grand jury which returned the indictment was required to state a belief in God; and (3) that the State failed to prove defendant's guilt beyond a reasonable doubt.

The defendant concedes that language in the indictment follows the statute, but contends that the statute is so vague and indefinite that it fails to meet the requirements of due process of law. Chapter 38, Section 23--1 of the Illinois Revised Statutes (1963) provided that, 'A person commits abortion when he Uses any instrument, medicine, drug or other substance whatever, with the intent to procure a miscarriage of any woman.' (Emphasis added.) The defendant primarily attacks the italicized portion of the statute and claims that 'the phrase 'uses any instrument' has such a broad meaning that it encompassed various forms of innocent conduct, i.e., the instrument might be a musical instrument, a magician's wand, or other article which does not touch or enter the human body.' Specifically he attacks the use of the word 'instrument' and says it is so vague and indefinite as to leave the public uncertain as to the conduct it prohibits and leaves the court free to decide, without any legally fixed standards, what is prohibited.

It is well settled that an indictment must be specific enough to enable the defendant to prepare his defense, however, this is also the basic test and reason for allowing a bill of particulars upon motion. People v. Gerold, 265 Ill. 448, 107 N.E. 165. In the case at bar, the defendant, upon motion, was given a bill of particulars setting out the instrument used. We conclude that adequate information was provided for the defense. People v. Woods, 24 Ill.2d 154, 180 N.E.2d 475. The words assailed taken in connection with the context of the statute are commonly understood and their use does not render the statute invalid. Triner Corp. v. McNeil, 363 Ill. 559, 2 N.E.2d 929, 104 A.L.R. 1435.

The defendant next contends that the indictment is void and unconstitutional because each member of the Grand Jury which returned it was required to state a belief in God. This point was not presented to the trial judge and it is well established that objections not presented for the trial court to rule on cannot be asserted for the first time on review. See People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76. Nevertheless we have considered this contention, but find no merit to it. Under the Maryland Statute a belief in God was a prerequisite for a person to become a juror. Schowgurow v. State, 240 Md. 121, 213 A.2d 475 and State v. Madison, 240 Md. 265, 213 A.2d 880, held that this requirement offended the establishment clause of the First Amendment to the United States Constitution as applied to the States through the Fourteenth Amendment. These cases are inapplicable as Chapter 78, Section 18, of the Illinois Revised Statutes (1963) does not require a belief in God as a prerequisite to serving as a Grand Juror. We also find that Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, also cited by the defendant, where the U.S. Supreme Court reversed a decision holding that a belief in God was a prerequisite to holding public office, is inapplicable on the facts.

Chapter 78, Section 18, of the 1963 Illinois Revised Statutes does provide that the Foreman and the other Grand Jurors shall take an oath before they enter upon the discharge of their duties in which oath they swear that in all of their presentments they will present the truth, the whole truth and nothing but the truth, according to the best of their skill and understanding 'so help you God'. However, we are of the opinion that defendant's contention is squarely met and answered by Chapter 101, Section 4 of the Illinois Revised Statute (1963) which provides under the heading 'Affirmation' that:

Whenever any person required to take or subscribe an oath, as aforesaid, and in all cases where an oath in upon any lawful occasion to be administered, and such person shall have conscientious scruples against taking an oath, he shall be admitted, instead of taking an oath, to make his solemn affirmation or declaration in the following form to-wit: You do solemnly, sincerely and truly declare and affirm. Which solemn affirmation or declaration shall be equally valid as if such person had...