Error to the County Court of Winnebago County; the Hon. FRED
J. KULLBERG, Judge, presiding. Affirmed.
Rehearing denied May 16, 1963.
The defendant, Antonia Howard, entered a plea of guilty to an information consisting of three counts charging her, along with Melvin E. Hogan, Allen L. Boldridge and James Howard, with the offenses of conspiracy, attempt and petty theft. The court sentenced the defendant on the third count of the information charging her with petty theft to the Illinois State Reformatory for Women at Dwight, Illinois, for a term of one year.
A writ of error was filed in the Supreme Court of Illinois to review this judgment in which the defendant contended among other things that the statute under which she was sentenced was unconstitutional. The Supreme Court, having determined that the case was wrongfully appealed to that court, transferred the case to this court.
A number of errors are assigned but the defendant only contends for two before this court. 1. That the information is fatally defective. 2. That the trial court erred in not permitting the defendant to withdraw her plea of guilty since she was not represented by counsel at the time of her arraignment and plea.
The record shows that on January 4, 1962, the Assistant State's Attorney of Winnebago County filed an information against the defendant, Antonia Howard, and others for the offenses of conspiracy, attempt and petty theft. The third count of the information charges that Melvin E. Hogan, Allen L. Boldridge, James Howard and Antonia Howard on the 2nd day of January, 1962, at and within the County of Winnebago in the State of Illinois, "committed the offense of Petty Theft, in that they knowingly obtained or exerted unauthorized control over lawful money of the United States, having a value not exceeding One Hundred Fifty Dollars ($150), the property of Piggly Wiggly Midwest, Inc., a corporation, thereby intending to deprive Piggly Wiggly Midwest, Inc., a corporation, permanently of the use or benefit of said property, in violation of Chapter 38, Section 16-1, Illinois Revised Statutes, 1961, 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, Antonia Howard, on the 4th day of January, 1962, appeared in open court and was furnished with a copy of the information, list of people's witnesses and jurors and filed a written waiver of trial by jury and entered a plea of guilty, and after being fully advised by the court as to the consequences of her plea and the penalty that might be imposed by reason of said plea, the defendant still persisted in her plea of guilty. Whereupon, her plea of guilty was accepted by the court and judgment was entered finding the defendant guilty as charged in the information and the cause was continued for sentencing.
On January 27, 1962, prior to being sentenced, the defendant, Antonia Howard, filed a motion in the trial court to vacate and set aside the judgment of conviction and for leave to withdraw her plea of guilty and waiver of trial by jury.
On February 14, 1962, the defendant appeared in open court with her attorney, and the court after having considered defendant's motion to vacate and set aside the judgment of conviction and for leave to withdraw her plea of guilty and waiver of trial by jury, overruled the motion and sentenced the defendant to the Illinois State Reformatory for Women at Dwight, Illinois, for a term of one year.
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 2, Sec 9.) The purpose of this provision is to secure to the accused 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, 141 N.E.2d 9; People v. Barnes, 314 Ill. 140, 145 N.E. 391 and People v. Covitz, 262 Ill. 514, 104 N.E. 887.
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 statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. (Ill Rev Stats 1961, c 38, § 716.) The statute further provides that every information shall set forth the offense with reasonable certainty, substantially as required in an indictment. (Ill Rev Stats 1961, c 37, § 289.)
The information in the instant case in the language of the statute, we believe, clearly and plainly states what the defendant did or was accused of doing in violation of the statute. The third count of the information on which the defendant was sentenced told her that she, together with the other defendants, on January 2, 1962, in the County of Winnebago, State of Illinois, committed the offense of petty theft by knowingly obtaining unauthorized control of money which was the property of Piggly Wiggly Midwest, Inc., a corporation, and that she intended to permanently deprive the owner of its property. It stated the property was lawful money of the United States having a value of less than $150.
It is the general rule that an indictment or an information which states the offense in the language of the statute is sufficient in those cases where the statute clearly defines the offense. Gallagher v. People, 211 Ill. 158, 71 NE 842. However, where the statute does not define or describe the act or acts constituting the offense created, such acts must be specifically alleged. People v. Peters, supra; People v. Potter, 5 Ill.2d 365, 125 N.E.2d 510 and People v. Green, 368 Ill. 242, 13 N.E.2d 278.
We hold that count three of the information in the instant case, the one on which the defendant was sentenced, which is in the words of the statute, fully, directly and expressly, without any uncertainty or ambiguity sets forth all of the elements necessary to constitute the offense intended to be punished, and that the count of the information is free from all ...