Appeal from the Circuit Court of Champaign County; the Hon.
CHARLES E. KELLER, Judge, presiding. Reversed and remanded.
Rehearing denied March 8, 1965.
The People appeal from an order of the circuit court of Champaign County dismissing an indictment charging possession of burglar tools and from an order denying the state's attorney's motion for leave to amend the indictment by correctly stating the section of the Criminal Code alleged to have been violated.
Omitting formal portions, the indictment reads as follows:
". . . committed the offense of POSSESSION OF BURGLARY TOOLS in that they, the said Clarence L. Hall and Kenneth B. Gibson with intent to enter a certain building, to-wit: Men's Old Gymnasium, property of The Board of Trustees of The University of Illinois, a public corporation of the State of Illinois, located at the Northeast corner of Springfield and Wright in Urbana, Illinois, with intent to commit therein a theft, did possess certain keys, tools, instruments, and devices suitable for use in breaking into depositories designed for safe keeping of property, in violation of Section 9-2 of the Criminal Code of 1961 . . ."
Section 9-2 of the Criminal Code relates to voluntary manslaughter. Section 19-2 relates to possession of burglar tools. While it is a bit of a strain on our credulity to believe that either the defendant or his attorney were misled by this indictment into believing that voluntary manslaughter was the charge, this observation does not solve our problem.
Our Code of Criminal Procedure, § 111-3 (Ill Rev Stats 1961, c 38, § 111-3) reads as follows:
"(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 time and place 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."
It is the position of the People that this statute is directory only and not mandatory and that the legislature set up these five guideposts to help the prosecutor stay on the path towards allowing the accused to understand the nature of the charge, but is not the path itself. With this position, we cannot agree. As defined by § 102-8 of the Code (Ill Rev Stats 1961, c 38, § 102-8) a "`charge' means a written statement presented to a court accusing a person of the commission of an offense . . ." To reach this goal the People must follow the path outlined and delineated by the legislature. It is neither for this court nor for the People to say that another and a different path is sufficient or adequate to inform the accused of the nature and the cause of the accusation against him as the Constitution requires. (Ill Const Art II, Par 9.) It is neither for this court nor ...