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People v. Brausam

JUNE 14, 1967.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DONALD R. BRAUSAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the Nineteenth Judicial Circuit of Lake County; the Hon. EUGENE T. DALY, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways. (Ill Rev Stats 1965, c 95 1/2, par 145.1.)

The charge against the defendant was initiated by an unverified "Illinois Uniform Traffic Ticket and Complaint." It was in the form prescribed by Supreme Court Rule, par C, relating to "Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors." (SHA, c 110, par 102.1; also see: Ill Rev Stats 1965, c 16, pars 81-85 incl.) The defendant contends that the judgment should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of "drag racing."

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147, (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill Rev Stats 1965, c 16, pars 81-85 incl.; c 38, pars 107-9, 107-11, 107-12 and par 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483:

"The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill Rev Stats 1965, chap 38, par 107-9.) But it also provides for the use of a summons, or a notice to appear, as `procedures for getting persons into court with out the necessity and inconvenience of an immediate arrest.' (SHA, chap 38, pars 107.11; 107.12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill Rev Stats 1965, chap 38, par 111-3(b).

"In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

"The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged."

[2-5] The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill Rev Stats 1965, c 38, par 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. People v. Harding, supra, 482, 483; Village of Willowbrook v. Miller, 72 Ill. App.2d 30, 34, 217 N.E.2d 809, (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The traffic ticket and complaint charged the defendant with committing the offense of "drag racing in violation of section 48.1 of the UART, on July 25, 1966, at 9:35 p.m., at North Avenue — west of Trevor Rd. in Lake County, Illinois." (Ill Rev Stats 1965, c 95 1/2, par 145.1.)

Section 111-3(a) of the Criminal Code (Ill Rev Stats 1965, c 38, par 111-3(a)) sets forth the requisites for a valid criminal complaint:

"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 ...


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