People v. Gilmore
| Decision Date | 18 March 1976 |
| Docket Number | Nos. 47691 and 47766,s. 47691 and 47766 |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. Norman GILMORE, Appellee. The PEOPLE of the State of Illinois, Appellant, v. William HOLLOMAN, Appellee. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Springfield, Patrick E. Ward, State's Atty., Dixon, and Richard R. Wilder, State's Atty., Morris , for the People.
Ralph Ruebner, Deputy State App. Defender, Elgin, and James Geis, Deputy State App. Defender, Ottawa (Ira A. Moltz, Chicago, and Mary Robinson, Asst. State App. Defenders, Ottawa, of counsel), for appellees.
Defendant Norman L. Gilmore (Docket No. 47691) pleaded guilty in the circuit court of Grundy County to four counts of an information charging burglary and three counts charging forgery and was sentenced to the penitentiary. He appealed and the appellate court reversed the convictions on the forgery counts, affirmed on the burglary counts and remanded for resentencing. (28 Ill.App.3d 130, 328 N.E.2d 53.) We allowed the People's petition for leave to appeal.
In a jury trial in the circuit court of Lee County, defendant William Holloman (Docket No. 47766) was convicted of forgery and sentenced to the penitentiary. The appellate court reversed (30 Ill.App.3d 822, 333 N.E.2d 509), and we allowed the People's petition for leave to appeal. The cases present identical issues and were consolidated for opinion.
In each case the judgment was reversed on the ground that although the information (47691) and the indictment (47766) were otherwise sufficient to charge the offense of forgery (Ill.Rev.Stat.1973, ch. 38, par. 17--3) by means of a check, the failure to set forth the payees named in the checks rendered them fatally defective. In neither case did the defendant attack the information or indictment in the circuit court and the question of their sufficiency was raised for the first time in the appellate court. The facts are adequately set forth in the appellate court opinions and need not be restated.
The People contend that the information and indictment were sufficient to charge the offense of forgery, to inform the defendants, respectively, of the 'exact offense' and 'to act as a bar to subsequent jeopardy.' Defendants contend that in failing to allege the existence or identity of a payee the information and indictment 'failed to allege an instrument apparently capable of defrauding' as required by section 17--3 of the Criminal Code and that they are 'insufficient to charge an offense or to confer jurisdiction.' They argue that prior to our decision in People v. Pujoue, 61 Ill.2d 335, 335 N.E.2d 437, this court had consistently held that a defective indictment failed to confer 'subject matter' jurisdiction on the circuit court; that the lack of jurisdiction could not be waived and that a judgment of conviction void by reason of such failure of jurisdiction could be attacked at any time.
It is ture that there is language in earlier decisions of this court which would appear to support defendants' argument, but their contention that the circuit courts lacked jurisdiction to enter the judgments, and that the judgments are therefore void, will not withstand analysis in the light of the relevant constitutional and statutory provisions. The jurisdiction of the circuit courts in these cases was not 'conferred' by the information or indictment; jurisdiction was conferred by the provisions of section 9 of article VI of the Constitution, which provides that the circuit courts have 'original jurisdiction of all justiciable matters.' The circuit courts have jurisdiction in all cases involving offenses which fall within the ambit of section 1--5 of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 1--5), which provides:
' § 1--5. State Criminal Jurisdiction.
(a) A person is subject to prosecution in this State for an offense which he commits, while either within or outside the State, by his own conduct or that of another for which he is legally accountable, if:
(1) The offense is committed either wholly or partly within the State; or
(2) The conduct outside the State constitutes an attempt to commit an offense within the State; or
(3) The conduct outside the State constitutes a conspiracy to commit an offense within the State, and an act in furtherance of the conspiracy occurs in the State; or
(4) The conduct within the State constitutes an attempt, solicitation or conspiracy to commit in another jurisdiction an offense under the laws of both this State and such other jurisdiction.
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State. In homicide, the 'result' is either the physical contact which causes death, or the death itself; and if the body of a homicide victim is found within the State, the death is presumed to have occurred within the State.
(c) An offense which is based on an omission to perform a duty imposed by the law of this State is committed within the State, regardless of the location of the offender at the time of the omission.'
An examination of the statutory scheme shows clearly that failure to charge an offense does not, as contended by defendants, serve to deprive the circuit court of jurisdiction. On the contrary, the relevant statutes draw a clear distinction between the absence of jurisdiction and the failure to state an offense. Section 1--3 of the Criminal Code provides that 'No conduct constitutes an offense unless it is described as an offense in this Code, or in another statute of this State.' Section 114--1(a) of the Code of Criminal Procedure (Ill.Rev.Stat.1975, c. 38, par. 114--1(a)) provides that on written motion made prior to trial an indictment or information may be dismissed on the ground that:
'(6) The court in which the charge has been filed does not have jurisdiction;
(8) The charge does not state an offense.'
The Committee Comments to section 114--1 (a)(6) state:
The Committee Comments to section 114--1(a)(8) state:
Section 114--1(b), to which the Committee Comments refer, provides:
The legislative intent concerning the non-waiver of the grounds for dismissal in sections 114--1(a)(6) and 114--1(a)(8) clearly was that even though not raised by pretrial motion they could be raised by motion in arrest of judgment. To that end section 116--2 of the Code of Criminal Procedure provides that following a verdict or finding of guilty judgment may be arrested when:
'(1) The indictment, information or complaint does not charge an offense, or
(2) The court is without jurisdiction of the cause.'
No similar statutory provision was made for nonwaiver at the appellate level.
This court, in cases too numerous to list, has consistently held that due process requires that an indictment or information must apprise the defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar...
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