Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE FIEDLER, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant, Robert Pronger, was found guilty in a non-jury trial of "the crime of concealing stolen property in manner and form as charged in the indictment." He was sentenced to the penitentiary for a term of not less than one year nor more than two years. Defendant prosecutes this writ of error, which was transferred to this court by the Supreme Court.
The determinative question is whether the indictment charged the crime for which defendant was tried and convicted. The indictment, captioned "Indictment for concealing stolen property," charged that defendant "committed the offense of possessing an engine for a motor vehicle with identification of the engine removed, in that he, knowingly had in his possession an engine for a motor vehicle, to wit: an engine for a 1962 Chevrolet automobile, with the identification number of said engine being removed."
The facts, as disclosed by the evidence, show that on May 5, 1962, police officers, with a search warrant, found under a blanket in the yard of defendant's home, a motor vehicle engine which had been taken from a stolen motor vehicle. It was an "original" 409 Chevrolet engine, without an identification number. "Replacement" engines do not have numbers but all "original" engines do. A special agent of the National Automobile Theft Bureau testified that he examined the engine, and "it was quite smooth and shiny. There were some markings indicating that the boss had been ground by one method or another. . . . The milling was ground off by grinding and filing. . . . We were unsuccessful in both attempts to raise numbers."
Defendant, a car racer and mechanic, testified that on May 3, 1962, a two-year acquaintance, named Freddie Hall, brought to him a 409 Chevrolet motor. Hall told him it was a new motor. Defendant looked for and found no serial number on the motor "there wasn't any number on it." He further testified, "Freddie Hall never told me that was a stolen motor. He told me he wanted me to put clearances in it. . . . The motor was visible from the sidewalk in my back yard. I never had a chance to work on this motor. . . . At the time I examined this motor, I thought it was a motor that was bought from a Chevvy dealer, a replacement motor."
The People contend that the indictment properly charged a crime, and that defendant was proved guilty beyond a reasonable doubt of violating the Illinois Motor Vehicle Act (Ill Rev Stats, c 95 1/2), either section 4-102(h) or 4-102(i), or both. These subsections relate to possessory offenses. Subsection (h) proscribes the possession "of a motor vehicle, knowing that an identification number of the motor vehicle or engine has been removed or falsified." Subsection (i) declares that it shall be unlawful for a person to possess "a motor vehicle or an engine for a motor vehicle, with knowledge that an identification number of the motor vehicle or engine has been removed or falsified and with intent to conceal or misrepresent the identity of the motor vehicle or engine."
A violation of subsection (h) is declared to be a misdemeanor, punishable by a fine or imprisonment in the county jail for a term not to exceed one year, or both. A violation of subsection (i) is declared to be a felony, punishable by a fine or imprisonment in the penitentiary for a period not to exceed three years, or both, Ch 95 1/2, § 4-106.
[1-5] Initially, we agree with the People that a caption is not part of an indictment and has no bearing upon the sufficiency of the charge. (People v. Shaw, 300 Ill. 451, 452, 133 N.E. 208 (1921).) 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 defendant is charged. (People v. Sellers, 30 Ill.2d 221, 223, 196 N.E.2d 481 (1964).) An indictment need not state specifically the statute violated by the acts alleged to be a crime, and this holds true where there are several statutory provisions under which the charge might fall. (People v. Crosson, 30 Ill. App.2d 57, 60, 173 N.E.2d 552 (1961).) Also, an indictment is sufficient if it informs an accused of the charge, enables him to prepare a defense, and protects from further prosecution (People v. Rosenfeld, 25 Ill.2d 473, 185 N.E.2d 236 (1962)), and it is not necessary that an indictment contain all the language of the statute on the subject. People v. Love, 310 Ill. 558, 567, 142 NE 204 (1924).
We agree with defendant's contention that the indictment does not charge a crime under either subsection (h) or (i). Subsection (h) proscribes the possession of a "motor vehicle," while subsections (f), (g) and (i), all relating to identification number violations, refer specifically to "a motor vehicle or an engine for a motor vehicle." The omission of "or an engine for a motor vehicle" in subsection (h) is significant. Violations of subsection (h), regardless of criminal intent, are limited to "a motor vehicle, knowing that an identification number of the motor vehicle or engine has been removed or falsified."
We are not persuaded by the People that this is a situation where a court "may supply words inadvertently omitted in a statute to effectuate legislative intent." (Secco v. Chicago Transit Authority, 2 Ill. App.2d 239, 119 N.E.2d 471 (1954).) Nor is this a situation where the legislature "palpably omitted" a phrase and where the court may read into a section a "plainly implied" phrase to prevent the legislative purpose from failing in one of its material aspects. (People v. Anderson, 398 Ill. 480, 76 N.E.2d 773 (1947).) Although a statute must be interpreted according to its object, intent and meaning, and not always according to the letter (People v. McEldowney, 308 Ill. 575, 140 N.E. 12 (1923)), a criminal statute must be strictly construed in favor of the accused. (People v. McGowan, 415 Ill. 375, 114 N.E.2d 407 (1953).) The plain implication is that the legislature intended to omit "or an engine for a motor vehicle" in subsection (h). Therefore, we conclude that subsection (h) applies only to the possession of a motor vehicle and not to an "engine," the subject of the instant alleged crime.
As to subsection (i), the indictment does not allege that defendant possessed the engine "with intent to conceal or misrepresent" its identity. We find no merit in the contention of the People that this offense is not a specific intent crime, and that the omitted clause was not essential to the indictment. Nor do we believe that the use of the word "knowingly" in this indictment implies "intent to conceal or misrepresent." "Where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged." (People v. Edge, 406 Ill. 490, 493, 94 N.E.2d 359 (1950).) In the absence of the allegation in the indictment of the phrase "with intent to conceal or misrepresent the identity of the . . . engine," or other appropriate words, the indictment failed to charge defendant with the violation of subsection (i).
Finally, we find no merit in the contention of the People that "the defendant waived any right to object to the indictment by a failure to present a motion to quash." (People v. Meaderds, 21 Ill.2d 145, 171 N.E.2d 638 (1961); People v. Barney, 15 Ill.2d 503, 507, 155 N.E.2d 615 (1959).) The cases upon which the People rely hold that it is only the technical objections to the indictment which cannot be heard for the first time subsequent to the trial. Here, the motion in arrest of judgment preserved for review the question of defects in the indictment and opens up the entire record for examination in this court for any apparent defect, even though there was no motion to quash or such motion was not made in apt time. (People v. Plocar, 411 Ill. 141, 146, 103 N.E.2d 612 (1952); People v. Edge, 406 Ill. 490, 494, 94 N.E.2d 359.) In People v. Fore, 384 Ill. 455 (1943), it is said (p 458), 51 N.E.2d 548:
"Where an indictment is insufficient, as here, to charge a public offense we must reverse the judgment of conviction notwithstanding the point was not raised in the trial court, as no waiver or consent by the defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law."
We believe this indictment was insufficient to charge a crime, and it could not be helped by a bill of particulars. (People v. Flynn, 375 Ill. 366, 371, 31 N.E.2d 591 (1941).) An accused should know precisely what he is to defend against. (People v. Brown, 336 Ill. 257, 262, 168 N.E. 289 (1929).) If an indictment is insufficient, it is error to overrule a motion in arrest of judgment, and on review the proper order is one of reversal without remanding. (People v. Green, 368 Ill. 242, 251, 13 N.E.2d 278 (1938); People v. ...