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People v. White

FEBRUARY 8, 1960.




Appeal from the County Court of Winnebago county; the Hon. FRED J. KULLBERG, Judge, presiding. Judgment affirmed.


Rehearing denied March 14, 1960.

An information was filed in the County Court of Winnebago County, Illinois, charging the defendant, Clarence White, with operating a motor vehicle within this state after his operator's license had been revoked. The defendant entered a plea of not guilty to the information and waived trial by jury. He was tried before the trial judge, found guilty of driving after revocation of his operator's license and thereupon was sentenced to seven days imprisonment in the county jail. The defendant sued out a writ of error to this court to review the conviction.

The only witness who testified in behalf of the People was Delbert Peterson, a police officer of Rockford, Illinois. People's Exhibit No. 1, a certificate of the Secretary of State of the State of Illinois was admitted in evidence in behalf of the People certifying a report of conviction of the defendant and an order of revocation of his operator's license. Defendant did not testify and no evidence was introduced in his behalf. Mr. Peterson testified that on April 20, 1957, at about 7 o'clock P.M. he observed a car which he thought was being driven too fast and stopped the driver in order to warn him. He then asked for his driver's license and was told by the driver of the automobile that he didn't have it with him and that he probably left it at home in his other pants pocket. Mr. Peterson then told the driver to come with him to the police car and that he would check with the station. He then radioed to the station to see if this man had a license. The driver of the car then told him, "I might as well tell you my license has been revoked." After this conversation, the police officer arrested the driver and they drove to the police station in Mr. Peterson's car. The police officer then testified that the driver of the car gave his name as Clarence White. That he showed identification to that effect, said he was Clarence White and they discussed the fact his license had been revoked.

The information which was signed by Robert L. McDonald, Assistant State's Attorney in and for said County of Winnebago, and sworn to by him, stated as follows:

"Now on this day comes into open court, in his own proper person Robert L. McDonald, Assistant State's Attorney in and for said County, in the name and by the authority of the People of the said State of Illinois, and informs the said court that one Clarence White, late of said County of Winnebago and State of Illinois, on the 20th day of April, in the year of our Lord one thousand nine hundred and fifty-seven, at and within the said County of Winnebago, in the State of Illinois aforesaid, Clarence White being then and there a person whose operator's license to operate a motor vehicle has heretofore been suspended or revoked as provided in `An Act in Relation to Motor Vehicles,' approved June 20, 1919, as amended, did unlawfully and wilfully operate a motor vehicle upon a public highway while such license was suspended or revoked, contrary to the form of the statute in such case made and provided and against the peace and dignity of the same people of the State of Illinois."

The defendant contends: (1) that an Assistant State's Attorney does not have the power or authority to prosecute by information in his own name in the county court; (2) that the information is fatally defective; (3) that the trial court erred in the admission of evidence in the following respects: (a) the records of the Secretary of State are not admissible; (b) there is no proof of the identity of the defendant and (c) there is no proof of the corpus delicti; and (4) that the evidence is insufficient to sustain the conviction.

The defendant cites cases from other jurisdictions to the effect that the Assistant State's Attorney does not have the power or authority to prosecute by information in his own name but cites to us no Illinois cases for this proposition. We have previously held in People v. Peters, 10 Ill. App.2d 567, 135 N.E.2d 673 (Abstract Opinion), that an information signed by the Assistant State's Attorney is not void. The Supreme Court of Indiana in Hamer v. State, 163 N.E. 91, stated it was the universally accepted rule that "an indictment is not invalid because it is signed by a duly appointed deputy or assistant prosecutor, 31 C.J. 620, and that an information may be filed by a deputy or assistant prosecutor, 31 C.J. 625."

We stated at pages 3a-4 of the abstract opinion in People v. Peters, supra, as follows:

"Our statute provides that all offenses cognizable in county courts shall be prosecuted by information of the state's attorney, attorney general, or some other person and shall be verified by affidavit of some person that the same is true or that the same is true as he is informed and believes. The statute also provides that before an information is filed by any person other than the state's attorney or attorney general, the judge of the court shall examine the information and may examine the person presenting the same and require other evidence and satisfy himself that there is probable cause for filing the same and so indorse the same. (Ill. Rev. Stat., chap. 37, sec. 289.) Section 18, chap. 53, Ill. Rev. Stat., provides that where assistant state's attorneys are required in any county, the number of such assistants and the salaries to be paid such assistants shall be determined by the board of supervisors, and the salaries of such assistants shall be paid out of the county treasury, such assistant state's attorneys to be named by the state's attorney of the county and, when so appointed, shall take the oath of office in like manner as state's attorneys and shall be under the supervision of the state's attorney. There is no merit in the contention of plaintiff in error that this information is void because not signed by the state's attorney. The statute was complied with, and counsel furnish us with no authority to sustain his contention."

The information is based on Section 6-303 of Chapter 95 1/2, Ill. Rev. Stat., 1957, which provides as follows:

"Any person who drives a motor vehicle on any highway of this State at a time when his operator's or chauffeur's license or permit or privilege so to do or his privilege to obtain a license or permit under this Act is revoked or suspended as provided by this Act or any other Act, except as may be allowed by a restricted driving permit issued under this Act, shall be punished by imprisonment for not less than 7 days nor more than 1 year and there may be imposed in addition thereto a fine of not more than $1,000."

The Illinois Criminal Code provides that every indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. (Ill. Rev. Stat., 1957, chap. 38, par. 716.) Every information shall set forth the offense with reasonable certainty, substantially as required in an indictment. Ill. Rev. Stat., 1957, chap. 37, par. 289.

[3-5] The Illinois constitution provides that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him. (Const. art. II, sec. 9, S.H.A.) The purpose of this guaranty is to secure to the accused such a specific designation of the offense charged against him as will enable him to fully prepare for his defense, and to plead the judgment in bar of a subsequent prosecution for the same offense. People v. Barnes, 314 Ill. 140, 145 N.E. 391. As a general rule, it is sufficient in an indictment or information to state the offense in the language of the statute in those cases where the statute clearly defines the offense. However, where the statute does not define or describe the act or acts constituting the offense created, such acts must be specifically alleged. It is essential that criminal pleadings be sufficiently specific, first, that the defendant may know the ...

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