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People v. Dawdy

ILLINOIS APPELLATE COURT — FOURTH DISTRICT.


NOVEMBER 1, 1967.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GEORGE SAMUEL DAWDY, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Greene County; the Hon. L.A. MEHRHOFF, Judge, presiding. Reversed.

TRAPP, J.

Upon a jury trial defendant was convicted of the offense of forgery of a bank check. An issue upon this appeal is whether or not the indictment was sufficient to state an offense.

In People v. Tilden, 242 Ill. 536, 90 N.E. 218, it is stated that at common law an indictment must profess, on its face, to set out an exact copy of the forged instrument and that in the absence of a statute providing otherwise, an indictment which fails to do so is fatally defective. In People v. Brown, 397 Ill. 92, 72 N.E.2d 859 (1947), the Supreme Court states the rule to be that an indictment for forgery must profess to set out the instrument according to its tenor, i.e., in exact copy, except where the instrument is in the possession of the accused, destroyed, or for some other reason is not accessible to the grand jury, in which event the reason for not setting it out must be distinctly averred. In People v. Crouch, 29 Ill.2d 485, 194 N.E.2d 248 (1963), the Supreme Court reiterates the rule and applied it to an indictment drawn under our present Criminal Code, chapter 38, § 17-3 (Ill Rev Stats 1965).

In this case the indictment did not undertake to set out the forged instrument in haec verba, as words and figures, or by attaching a photo, or other form of exact copy. There is no distinct, or other averment, that the instrument is in the possession of the accused, destroyed or otherwise not accessible to the grand jury.

No statute altering this rule of the Supreme Court has been cited and we have found none.

The insufficiency of the indictment in charging the offense may be raised by writ of error, People v. Furman, 26 Ill.2d 334, 186 N.E.2d 262, or upon appeal, People v. Stringfield, 37 Ill. App.2d 344, 185 N.E.2d 381.

Where the indictment is insufficient to charge an offense, the reviewing court must reverse. People v. Pronger, 48 Ill. App.2d 477, 199 N.E.2d 239; People v. Stringfield, 37 Ill. App.2d 344, 185 N.E.2d 381.

Reversed.

CRAVEN, P.J. and SMITH, J., concur.

19671101

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