People v. Smith

• Citation: 459 N.E.2d 1357,99 Ill.2d 467,77 Ill.Dec. 108
• Decision Date: 01 February 1984
• Docket Number: No. 58124,58124
• Parties: , 77 Ill.Dec. 108 The PEOPLE of the State of Illinois, Appellant, v. Robert H. SMITH, Appellee.
• Court: Supreme Court of Illinois

Page 1357

459 N.E.2d 1357

99 Ill.2d 467, 77 Ill.Dec. 108

The PEOPLE of the State of Illinois, Appellant, v. Robert H. SMITH, Appellee.

No. 58124.

Supreme Court of Illinois.

Feb. 1, 1984.

Michael R. Cornyn, Allen & Korkowski & Associates, Rantoul, for appellee.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Jack Donatelli, Asst. Attys. Gen., Chicago, Robert J. Biderman Deputy Director, Garry W. Bryan, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for the State; James R. Benson, State's Atty., Paxton, of counsel.

SIMON, Justice:

This appeal presents two questions for resolution: Must a one-count information captioned "Reckless Homicide" set forth the element of recklessness in the body of the information? If so, must a challenge to an information which does not allege recklessness be sustained pursuant to People v. Lutz (1978), 73 Ill.2d 204, 22 Ill.Dec. 695, 383 N.E.2d 171, when raised for the first time in a timely motion in arrest of judgment?

An information filed against the defendant, Robert H. Smith, charged:

"That on the 26th day of July, 1981, in [Ford] County, Robert Smith AKA Snyder committed the offense of Reckless Homicide, in violation of Section 9-3, Chapter 38, Illinois Revised Statutes, in that above defendant did unintentionally kill an individual without lawful justification by committing an act which was likely to cause death or great bodily harm to an individual, said act consisting in the driving of a motor vehicle at an excessive rate of speed resulting in a crash which resulted in the death of Christopher Gulliford Age 22 of Gibson City, said act occurring within the Corporate limits of the City of Gibson Ford County, Illinois."

At trial, counsel for the defendant did not present an opening or closing statement and offered no witnesses or evidence. At the jury-instruction conference, defense counsel's motion to strike all references to recklessness in the instructions offered by the State was denied. However, his tendered instructions concerning speeding and failure to reduce speed to avoid an accident were accepted on the theory that these were lesser-included offenses of reckless homicide.

The jury found defendant guilty of both reckless homicide and failure to reduce speed to avoid an accident. Defendant thereupon filed a motion in arrest of judgment, asserting for the first time that the information failed to charge reckless homicide because it did not allege that he acted recklessly. The trial judge denied the motion and sentenced him for the offense of reckless homicide. The trial judge also entered a judgment of guilty of failure to reduce speed but imposed no sentence for that offense. The appellate court, with one judge dissenting, reversed the conviction of reckless homicide and remanded the cause for sentencing for failure to reduce speed. (112 Ill.App.3d 1033, 68 Ill.Dec. 526, 446 N.E.2d 260.) We granted the State's petition for leave to appeal; in this appeal the defendant does not seek a reversal of his conviction for failure to reduce speed, but requests merely that we affirm the appellate court.

A defendant has the fundamental right, under both the Federal (U.S. Const., amend. VI) and State constitutions (Ill. Const.1970, art. I, sec. 8), to be informed of "the nature and cause" of criminal accusations made against him. In Illinois this general right is given substance by section 111-3 of the Code of Criminal Procedure of 1963, which states:

"Form of Charge. (a) A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the date and county of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty." (Ill.Rev.Stat.1981, ch. 38, par. 111-3(a).)

Accordingly, it is not sufficient for an information merely to set forth the name of an offense and cite the statute which defines it as an offense; it must set forth in addition the nature and elements of the offense. (E.g., People v. Pujoue (1975), 61 Ill.2d 335, 338, 335 N.E.2d 437; People v. Sirinsky (1970), 47 Ill.2d 183, 265 N.E.2d 505.) The statute is phrased conjunctively, and in mandatory language: it requires substantial compliance with each of the five steps it enumerates. While the cases in this State have stopped short of requiring absolute compliance with each step, they nonetheless require that a charging instrument give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecution for the same offense. (People v. Hall (1982), 96 Ill.2d 315, 70 Ill.Dec. 836, 450 N.E.2d 309; People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 501; People v. Shelton (1969), 42 Ill.2d 490, 248 N.E.2d 65.) This requirement may be satisfied by proper allegations in the body of the charging instrument even when they vary from the statement of the offense in its caption. (People v. Sirinsky (1970), 47 Ill.2d 183, 187, 265 N.E.2d 505; People v. Sellers (1964), 30 Ill.2d 221, 223, 196 N.E.2d 481; People v. Shaw (1921), 300 Ill. 451, 452, 133 N.E. 208.) In People v. Sellers the court stated, "it is the body of the indictment, rather than the caption, which must specifically state the essential elements of the crime or crimes with which the defendant is charged." 30 Ill.2d 221, 223, 196 N.E.2d 481.

Adhering to these principles we believe that the information fell short of charging reckless homicide. That crime is defined in the following statute:

"A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide." (Ill.Rev.Stat.1981, ch. 38, par. 9-3(a).)

It requires that the act which causes death be a reckless one, unlike failure to reduce speed to avoid an accident which does not include a state-of-mind requirement. (Ill.Rev.Stat.1981, ch. 95 1/2, par. 11-601(a); see In re Vitale (1978), 71 Ill.2d 229, 238-39, 16 Ill.Dec. 456, 375 N.E.2d 87, vacated and remanded on other grounds sub nom. Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228.) Left open by the information here is the possibility that the act described in it was committed in a negligent but not a reckless manner, as those terms are defined by the criminal code. (Compare section 4-6 of the Criminal Code of 1961 (recklessness involves a conscious disregard of a substantial risk) with section 4-7 (negligence involves a failure to be aware of a substantial risk where such failure is unreasonable) (Ill.Rev.Stat.1981, ch. 38, pars. 4-6, 4-7).) A reckless state of mind is an integral part of the crime of reckless homicide; recklessness therefore must be alleged in the body of the information. See People v. Ray (1972), 5 Ill.App.3d 624, 283 N.E.2d 696.

The State urges that an information must be read as a whole, an approach which we recently endorsed in People v. Hall (1982), 96 Ill.2d 315, 70 Ill.Dec. 836, 450 N.E.2d 309, and cites People v. Williams (1967), 37 Ill.2d 521, 229 N.E.2d 495, as authority for the proposition that allegations contained in the caption of a charge may be used to plug gaps in the body of the charge. Neither case is helpful here. In Hall we held that a missing allegation necessary for a proper understanding of one count of a multi-count information could be supplied by another count within the body of the information; "reading the information as a whole" in Hall entailed no resort to the caption or transferral of essential facts from the title of the charge to the body of the information, as the State suggests is proper here to supply the essential elements. In Williams the court permitted the name of the county in which an offense took place to be supplied by the heading of the charge, which contained a reference to Cook County and a Chicago street address. These references, however, were not a part of the name of the offense, as "reckless homicide" in the instant case is, but were independent pieces of intelligence with informative value of their own, and as such they were the kind of factual matter one would expect to find in the body of the complaint.

The State's contention that the element of recklessness must be inferred from the nature of the acts alleged combined with the fact that the charge set forth is "reckless homicide" lacks merit. First, the...