WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
B. FAIN TUCKER, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The People of the State of Illinois have sued out a writ of error directed to the criminal court of Cook County to reverse an order of said court quashing four counts of an 18-count indictment and to remand the case for further proceedings pursuant to the indictment.
Ten defendants were indicted for the crimes of conspiracy to commit burglary and conspiracy to receive stolen property. The trial court quashed counts 1, 9, 10 and 18 of the indictment and denied motions to quash all other counts. After the trial court refused to vacate such order quashing the four counts, the People moved for a nolle prosequi of the 14 remaining counts, which was granted, and sued out the present writ of error.
Defendants attacked the counts in question as being vague, indefinite and uncertain and insufficient to apprise the defendants of the nature and cause of the accusation, and not specific enough for a plea of former jeopardy, all in violation of the defendants' rights under section 2, 9, and 10 of article II of the constitution of 1870 and the fourteenth amendment to the constitution of the United States. Thus a construction of the constitution is involved, and this court has jurisdiction directly (Ill. Rev. Stat. 1959, chap. 110, par. 75; People v. Watkins, 19 Ill.2d 11,) even though the indictment charges the defendants with a misdemeanor.
The People's theory of the case is that the counts of the indictment quashed are valid and will support a conviction because they charge the crime of conspiracy to commit a felony in the language of the statute; they state the charge plainly enough to be readily understood by the court and jury; that they are sufficiently specific to permit the defendants to prepare their defenses; and because they describe the felony to be committed with an exactness which apprises defendants of the charge they are to meet.
The first count of the indictment charges that the defendants, Beeftink, Brinn, Clements, Faraci, Groark, Mulea, Alex Karrass and Sol Karrass, were duly appointed, qualified and acting police officers in and for the city of Chicago, County of Cook, and State of Illinois, and that on or about October 1, 1958, they, with one Morrison and one Wilde "did unlawfully, feloniously, wilfully, fraudulently, and deceitfully conspire, combine, confederate and agree together and with each other with the fraudulent and malicious intent, unlawfully, wrongfully, wickedly, and deceitfully to commit a felony, to-wit: Burglary, to-wit: to feloniously, burglariously, wilfully, maliciously and forcibly break and enter into certain buildings then and there situate with the intent then and there feloniously and burglariously to steal, take and carry away the personal goods, chattels, money and property of divers persons contained in said building, contrary to the statute, and against the peace and dignity of the same People" etc.
Counts 2 through 8 charged the same defendants, in substantially the same language, with a conspiracy to commit a felony, to-wit, burglary, and further charged a specific felonious and burglarous breaking and entering into a specifically identified building with the necessary specific intent to feloniously steal, take and carry away personal goods, etc., all pursuant to such conspiracy and to effect the object thereof.
Count 9 is, in effect, a consolidation of counts 1 through 8 in that it charges each of the defendants on the specified date, in Cook County, in substantially the same language, with conspiring and agreeing with each other to commit a felony, to-wit, burglary, and that pursuant to said conspiracy and to effect the object thereof, they did do the following acts, and then recited the seven specific acts of alleged burglary referred to in counts 2 through 8.
Count 10 of the indictment charges that the same defendants, on or about the same date and in the same county, "did unlawfully, feloniously, wilfully, fraudulently and deceitfully conspire, combine, confederate and agree together and with each other, and with divers other persons whose names are unknown to the said Grand Jurors, with the fraudulent and malicious intent unlawfully, wrongfully, wickedly and deceitfully to commit a felony, to-wit: for their own gain and for the gain of each of them, and for the gain of each other, and to prevent the rightful owners from again possessing their goods and property, to buy, receive and aid in concealing stolen goods and property of and belonging to divers persons and corporations from whose rightful possession and ownership said goods and property were obtained by larceny and burglary, each of them well knowing the same to have been so obtained; contrary to the Statute" etc.
Counts 11 through 17 charge each of the same defendants, at the same time and place as aforesaid, in substantially the same language, with conspiracy with each other to commit a felony, to-wit, "receiving of stolen property," and in each of said counts specifies stolen goods and property of and belonging to a specifically named person or corporation obtained by larceny and burglary, the defendants allegedly knowing the same to have been so obtained.
Count 18 following the same pattern as count 9, charges the same defendants with conspiracy to commit a felony in substantially the same language as count 9, and then alleges that, pursuant to said conspiracy and to effect the object thereof, they did do the following acts, and specifies the receipt of stolen property of each of the persons or corporations detailed in counts 11 through 17.
Section 10 of article II of the constitution of 1870 provides, in pertinent part, as follows: "No person shall * * * be twice put in jeopardy for the same offense." Section 9 of article II provides in pertainent part: "In all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation and to have a copy thereof, * * *."
This court has construed the constitutional nouns "nature" and "cause" to mean: "such 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. Peters, 10 Ill.2d 577; People v. Braun, 375 Ill. 284.) Thus, a failure to furnish any defendant with the nature and cause of his accusation in a criminal prosecution is to deny such defendant his constitutional right of due process and his constitutional protection against double jeopardy.
Since 1827 the Illinois statutes have provided in pertinent part (Ill. Rev. Stat. 1959, chap. 38, par. 716) as follows: "Every indictment of accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or ...