Appeal from the Circuit Court of the 17th Judicial Circuit of
Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Judgment affirmed.
MR. PRESIDING JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 29, 1965.
The defendants, James G. Marks and Charles Miles, were indicted by the grand jury of Winnebago County on June 30, 1964, for the offense of forgery. Both defendants entered pleas of not guilty and waived their right to trial by jury. Thereafter, the matter proceeded to trial on November 4, 1964, and on November 20, 1964, the court adjudged them guilty as charged in the indictment and sentenced them each to a term of not less than two years nor more than seven years in the Illinois State Penitentiary. The defendants urge several grounds for reversal, contending, 1) that the form of the indictment did not meet the requirements of statutory enactments; 2) that an amendment to the indictment permitted by the court during the trial was of a material nature and not a formal defect; 3) that a void instrument is not the subject of forgery, and, 4) evidence of subsequent similar offenses is not admissible.
The defendants urge denial of their constitutional right in that the caption of the indictment failed to contain the suggested first paragraph provided for under Illinois Revised Statutes, 1963, chap 38, par 716. The section referred to was repealed as of January 1, 1964. We deem it unnecessary to make further comment.
Defendants also urge that the indictment fails to contain on the face thereof some words to the effect that the Grand Jury was duly chosen, selected and sworn and made the presentment of the indictment. The record discloses full compliance with Criminal Law and Procedure, chap 38, sec 112, par 1-4, Illinois Revised Statutes, 1963. We find no necessity of reciting on the face of an indictment compliance with these sections, nor does the Legislature so require. Prior to the adoption of the Code of Criminal Law and Procedure it was held in People v. Shaw, 300 Ill. 451, 452, 133 N.E. 208, that the caption is no part of the indictment and has no bearing on the sufficiency of the charge.
It is next contended that the trial court erred in permitting the State's Attorney to amend the indictment on its face by substituting Grayce Cockerill, the owner of the tavern known as "The Office" for William Alkire, an employee thereof, when the evidence so disclosed this fact at the trial, claiming this is an amendment of substance rather than a formal defect.
The Illinois Code of Criminal Procedure provides under paragraph 111-5 of Title IV as follows:
"111-5. Formal Defects in a Charge. An indictment, information or complaint which charges the commission of an offense in accordance with Section 111-3 of this Code shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects, including: . . . (d) the presence of any unnecessary allegation; . . ." (Ill Rev Stats, 1963, c 38, par 111-5.)
The State contends that this provision supports the decision of the trial court since the allegation in the indictment purportedly identifying the person that the defendants intended to defraud was unnecessary.
It is well established that an intention to defraud is an essential element of the crime of forgery. People v. Bailey, 15 Ill.2d 18, 153 N.E.2d 584; People v. Ciralsky, 360 Ill. 554, 196 NE 733. It was formerly held that it was necessary to prove that the forgery was committed with the intention to defraud some particular person and that the particular person be identified in the indictment. People v. Ernst, 306 Ill. 452, 457, 138 N.E. 116; People v. Fox, 95 Ill. 71.
A later case discussed the distinction between a general intent to defraud and a specific intent to defraud a particular person. The case does not elaborate on the basis of the distinction but does infer that it is necessary to identify the particular person in the indictment in cases involving a specific intention to defraud. People v. Fore, 384 Ill. 455, 51 N.E.2d 548.
However, it is on the recent Supreme Court case of People v. Crouch, 29 Ill.2d 485, 194 N.E.2d 248, decided in November of 1963, that the State relies for its contention that it is unnecessary to identify the person intended to be defrauded in an indictment charging forgery. The court said in that case:
"It is apparent from the later decisions of this court that the implications of the earlier Fox and Ernst cases that the indictment must identify the person intended to be defrauded have been abandoned, even though not expressly overruled, and such action accords with the demands of modern commerce in negotiable instruments. The gist of the offense of forgery is the intent to defraud involved in the making of a forged instrument or knowingly uttering the same. The offense is not less inimical to society, nor any more or less harmful, by reason of the identity of the party defrauded or intended to be defrauded."
We conclude, and since it is unnecessary in an indictment to identify the person intended to be defrauded, that such an averment made in error is in the category of a formal defect which can be amended ...