People v. Rife

• Decision Date: 18 April 1974
• Docket Number: No. 12086,12086
• Citation: 310 N.E.2d 179,18 Ill. App. 3d 602
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter RIFE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 179

310 N.E.2d 179

18 Ill.App.3d 602

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Walter RIFE, Defendant-Appellant.

No. 12086.

Appellate Court of Illinois, Fourth District.

April 18, 1974.

John F. McNichols, District Defender, Illinois Defender Project, Springfield, for defendant-appellant.

Robert J. Bier, State's Atty., Quincy, for plaintiff-appellee.

SIMKINS, Justice.

Walter Rife was found guilty of burglary and theft after a jury trial.He was sentenced to 20 to 50 years in the penitentiary on the burglary count and here appeals from the dismissal of his post-conviction petition.

On June 24, 1969 an Adams County grand jury returned an indictment charging the defendant with committing a burglary and theft on April 16, 1969.The burglary indictment alleged that the defendant'committed the offense of Burglary in that he, without authority, knowingly entered a vehicle of Adams Electrical Coop, an Illinois corporation, with intent to commit therein a theft, in violation of the Criminal Code of 1961, Section 19--1.'On July 14, 1969the defendant appeared before the court with counsel and pleaded not guilty.During September 1969defendant's counsel appeared at a series of hearings on several motions previously filed.The defendant failed to appear personally and defense counsel asked for a continuance, stating that he had been unable to contact the defendant since September 3, 1969.On September 22, 1969 the cause came on for trial before a jury, and when the defendant again failed to appear, his bond was ordered forfeited, and a bench warrant was issued for the defendant's arrest after his brother and wife testified that they had no contact with the defendant during the month of September.

On April 6, 1970 the cause was transferred to the inactive calendar, and on May 15, 1970the state's attorney filed a petition for a Writ of Habeas Corpus Ad Prosequendum directed to the warden of a Federal institution in Texas, where the defendant was incarcerated.

The defendant was present and testified in his own behalf at the trial held on June 11, 12, and 13, 1970, at the conclusion of which the jury returned verdicts of guilty to both burglary and theft.One June 13, 1970 judgment was entered on the guilty verdicts, a hearing in aggravation and mitigation was set for July 14, and the defendant was remanded to the custody of the Federal marshal to be held in the Quincy city jail.When the state's attorney and defense counsel appeared on July 14, 1970, the court took judicial notice that the defendant had absented himself from jail and continued the hearing in aggravation and mitigation to August 3, 1970.On August 3, 1970the court heard the State's application for judgment on bail bond and entered a judgment for the People in the amount of $6000 and costs against the defendant.Defendant did not appear on September 8, 1970 and on September 9 notice was sent to defendant to appear for sentencing.The defendant still did not appear on September 21, 1970, and at that time, after hearing defense counsel's arguments in mitigation as to the circumstances of the instant offense as well as to the lack of violence or threat to personal safety shown by the defendant's past record which was concededly extensive, the defendant was sentenced to 20 to 50 years on the burglary conviction.

Almost one year later, during August 1971, the defendant contacted the clerk of the Adams County circuit court by mail from the Federal penitentiary in Leaven-worth, Kansas, requesting a complete record of all the proceedings in the case there for the purpose of his Pro se appeal stating that he did not wish counsel to be appointed.

On January 31, 1972the defendant filed a Pro se post-conviction motion alleging that his constitutional right to a speedy trial had been denied in that the Adams County state's attorney had learned that the defendant was incarcerated in Texas shortly after the defendant's arrest by Federal authorities after his indictment in Illinois in June 1969, and that the state's attorney could and should have promptly caused him to be brought back to Illinois for trial instead of waiting for approximately one year.On May 3, 1972 a hearing was held on the above motion at which the defendant was found to be indigent, counsel was appointed, and a hearing set for June 5, 1972.Following several continuances, on August 21, 1972 appointed counsel filed an amended petition for post-conviction relief, which refined the grounds alleged by the Pro se petition: that the defendant was denied rights secured by both the Illinois and the Federal constitution by reason that he was arrested on April 16, 1969, but was not brought to trial on the charge until June 11, 1970, which was a period greater than the 120 day period provided by Illinois statute for bringing a defendant to trial; and further that on September 23, 1969the defendant was arrested in the state of Colorado, and from that time on was available for trial, but was not brought to trial until June 11, 1970, a period also in excess of the 120 day statutory period.On August 22, 1972the state's attorney filed a motion to dismiss the post-conviction motion on the grounds that the defendant did not move to dismiss the indictment prior to or during the trial, nor did he raise the issue in any post-trial motion, and therefore the defendant had waived any possible error as to his right to a trial within 120 days of incarceration.On September 1, 1972 the motion to dismissdefendant's post-conviction petition was granted after arguments were heard.

Three issues are raised in this appeal from the dismissal of the amended post-conviction petition: (1) that the burglary indictment in the instant case was defective in that reference was made to the entry of a vehicle rather than a motor vehicle, and thus an essential element of the offense was not alleged; (2)the defendant's right to be present at all stages of the proceedings against him was violated by his being sentenced In absentia; and (3) the propriety of the 20 to 50 year sentence on the burglary conviction.

Section 111-3 of the Code of Criminal Procedure states that a charge shall be in writing and allege the commission of an offense by stating the name of the offense, citing the statutory provision alleged to have been violated, setting out the nature and elements of the offense, and specifying the date and county of the offense as well as possible.(Ill.Rev.Stat.1969, ch. 38, par. 111--3(a).)The burglary indictment in the instant case set out the date and location at which the defendant was charged with committing the offense of burglary in that he, without authority, knowingly entered a vehicle of Adams Electrical Co-op with the intent to commit a theft in violation of the Criminal Code, Section 19--1.The Criminal Code provides that: 'A person commits burglary when without authority he knowingly enters * * * motor vehicle as defined in The Illinois Motor Vehicle Code * * *.'(Ill.Rev.Stat.1969, ch. 38, par. 19--1(a).)The Motor Vehicle Code defines vehicles which are self-propelled, but not operated on rails, as motor vehicles.(Ill.Rev.Stat.1969, ch. 95 1/2, par. 1--146.)Elsewhere in the statutes, vehicles are said to be every device in, upon, or by which persons or property may be transported or drawn upon a highway, except those moved by human power or operated exclusively on stationary rails or tracks.(Ill.Rev.Stat.1969, ch. 95 1/2, par. 1--217.)Therefore, the defendant contends that the indictment in the instant case was fatally defective by failing to allege an essential element of the offense of burglary in that 'vehicles' is a broader term than 'motor vehicles' which the burglary statute specifically includes as an object capable of being burglarized.

An indictment charging an offense defined by statute should be as fully descriptive of the offense as the language of the statute, and should allege all the substantial elements of the offense.(People v. Martin,62 Ill.App.2d 97, 210 N.E.2d 587.)The charge need not contain the precise statutory language, and where the statute clearly defines the offense an indictment charging the offense substantially in the language of the statute is sufficient.(People v. Donaldson, 341 Ill. 369, 173 N.E. 357.)On the other hand, an indictment must allege all the facts necessary to constitute the crime charged, People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513, and likewise an indictment alleging facts not constituting the offense is insufficient.People v. Barnes, 314 Ill. 140, 145 N.E. 391.

The purpose of an indictment is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense and plead the judgment in bar of a subsequent prosecution for the same offense.(People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897.)The defendant does not seriously contend that the indictment here failed to fulfill the above requirements, but rather that since the burglary statute refers to motor vehicles as defined in the Motor Vehicle Code as one of the objects which, if entered without authority with the specified intent, the use of the word vehicle failed to charge the offense of burglary at all--there being a definition of that broader term elsewhere in the statute.A void indictment confers no jurisdiction on the trial court.People ex rel. Kelley v. Frye,41 Ill.2d 287, 242 N.E.2d 261.

The defendant cites several cases involving driving while intoxicated, where the indictment omitted the words 'while under the influence of alcohol.'In such cases the intoxicated condition of the accused is the essence of the offense, so failing to charge it is distinguishable from the instant case where the state of mind and every action of the defendant is charged, the alleged defect being to the specificity of the object entered.Most of the cases finding a burglary indictment defective, as the defendant seeks here, are those where...