Appeal from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding. Affirmed.
[1-4] Appeals involve, as we know, a review of errors said to have been committed by the trial court. However, not every error will be reviewed generally only those that have been committed wittingly, so to speak. This means that somehow the happenstance complained of must have been brought to the attention of the court, for in many instances this gives it an opportunity to avoid or otherwise obviate the mishap. A common way of doing so is by objection, ideally, ahead of time, but in any event, at the first opportunity. But, a party can waive erroneous (in his view) happenings and he does so by not objecting. Take the rule against hearsay. A party might wish to waive it in a given situation. He does so by doing nothing. Conversely, if he opts to enforce the rule, he signals his non-waiver by objection, thus giving notice of an issue of law and its terms.
[5-7] But this is not precisely our problem. Here, we are asked to remand for errors which would generally not be reviewable because they were not brought to the attention of the trial court, at least at the time they should have been. We say "generally," however, because if the errors are plain and they affect substantial rights we can indeed notice them and act thereon. The occurrences now complained of, other than as to two instructions, passed unnoticed at the trial. They are said to be "plain error."
The statutory definition of the rule reads:
". . . Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill Rev Stats 1967, c 110A, § 165(a), Supreme Court Rule 615.
As is apparent, the "plain error" rule has the effect of giving a defendant the right to get his foot in the door for appellate review even though the happenings as to which he feels aggrieved were not "perfected," "saved," or "preserved," as it is said. We make this statement not to question the wisdom of the rule but rather to emphasize that its invocation will be effective so far as we are concerned only when the happening really is plain error and really does affect substantial rights and is capable of causing a miscarriage of justice. In supplying the adverbs, we do not change meaning, rather supply it. If we do not articulate the rule in this fashion we debase the system. Without belaboring the point the administration of public justice is not subserved by new trials, the more so when the errors that might command just that could have been avoided say by letting the court in on it at the time. Our procedure contemplates a single occasion one trial not successive occasions until the perfect-error-free trial is achieved. What is more, the rule that errors must be preserved, saved or perfected, works against a tactic lamentably still extant when a defendant's only interest is in "collecting error" for use here if the result goes badly. We would not want to be a party to giving aid and comfort to those so inclined by inadvertently broadening the rule to the point that error, not amounting to plain error, can be collected in silence and then be used to obtain that second occasion, which, as we have said, should be eschewed. In saying this, we are not implying that such was the case here. At this juncture, the observations of Judge Learned Hand in United States v. Brown, 79 F.2d 321, 326 (2nd Cir 1935) is most apt:
"When the very merits of the case are clear; when only one result can honestly emerge; and when the jury has in fact been satisfied, we no longer look upon criminal procedure as a sacred ritual, no part of which can be omitted without breaking the charm. Trial by jury is a rough scales at best; the beam ought not to tip for motes and straws."
With this foreword we take up the matter before us an appeal from a conviction of burglary. The facts can be succinctly put. Defendant attended an all-night beer party at a friend's apartment where it was decided to procure a television set from a nearby house conveniently vacant for the weekend this happened early Easter morning. The set was indeed obtained. Five boys were involved, three did the actual breaking and entering, one stayed out in front, and defendant in back. After the three reappeared from the house with the television, all five returned to the apartment. Whoever instigated the adventure, or rather misadventure, had forehandedly telephoned the house just to make sure that it was empty. All of them knew this. The intake of beer had been considerable and no doubt contributed to an omnipresent lack of self-restraint, to put it mildly. Indeed, as to one, constraint was passe he had passed out and luckily missed what turned out to be not very much fun at all. Defendant gave the police a statement which differed very little from the above recitation and his testimony at the trial. The same can be said as to his two co-defendants who do not appeal and as to the one who became a so-called accomplice witness. The defense was lack of intent in short, a prank.
The first point urged and for outright reversal does not involve the plain error rule as might be expected after all we have said. It involves the very charge itself. Here for the first time (other than in the post-judgment motion) it is argued that the information failed to charge the requisite intent necessary to sustain a conviction, specifically, that the information failed to charge that defendant intended to promote or facilitate the burglary either before or during its commission by aiding and abetting the others in its commission.
[8-10] We will assume as basic that one can't be convicted of an offense not charged. The point can certainly be asserted at any time. The information charged that defendants "entered without authority a building occupied and possessed . . . with intent to commit therein a theft" an adequate charge for burglary. Defendant in arguing its inadequacy states that the proof showed him to be, at best, an aider and abettor and refers us to § 5-2 of the Criminal Code, Ill Rev Stats 1967, c 38, § 5-2, which, he says, requires a more expanded intent for those who are "mere" aiders and abetters. Such section reads:
"A person is legally accountable for the conduct of another when:
"(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. . . ."
Assuming proof of the intent called for in this section was necessary to support the conviction, does it have to be set forth in the charge? In other words, assuming that he was an aider and ...