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People v. Dzielski

NOVEMBER 25, 1970.

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

v.

FRANK DZIELSKI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. J. DAVIS, Judge, presiding.

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

The defendant, Frank Dzielski, plead guilty to the charge of forgery. On appeal, he contends that the indictment did not state an offense; that his post-trial motion, although not filed within 30 days following the entry of a verdict or finding of guilt, was timely filed; that the trial court erred in refusing to grant a hearing on the post-trial motion; and lastly, that the sentence of from two to six years was excessive.

Count 2 of the indictment charged that the defendant, also known as Edward P. Davis, on February 7, 1969, in Lake County, Illinois, "committed the offense of forgery, in that he, with the intent to defraud, he knowingly delivers to the First National Bank of Waukegan, * * * a check dated February 4, 1969, made payable to Edward P. Davis in the sum of Four Hundred Eighty Dollars ($480.00), drawn on The First National Bank of Waukegan, * * * and the said check is apparently capable of defrauding another in such manner that it purports to have been made by and to have been signed as drawer by Marjorie Porter and the said Frank T. Dzielski a/k/a Edward P. Davis knowing that the said check to have been made and to have been signed as drawer by another other than Marjorie Porter, in violation of Chapter 38, Section 17-3, Illinois Revised Statutes of 1967; * * *."

• 1, 3 In order to confer jurisdiction upon the court, an indictment must be sufficient to enable the defendant to prepare his defense, and to sustain a plea of judgment in bar to any further prosecution for the same offense. (People ex rel. Miller v. Pate (1969), 42 Ill.2d 283, 285; People v. Peters (1957), 10 Ill.2d 577, 580.) If the indictment is not sufficient to charge an offense, a judgment of conviction may not be upheld even though on a plea of guilty; and such defect may be raised for the first time on appeal. People v. Minto (1925), 318 Ill. 293, 296; People v. Billingsley (1966), 67 Ill. App.2d 292, 299, 300.

Section 111-3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 111-3(a)), prescribes the manner of charging an offense. It provides that the charge shall be in writing; that it must state the name of the offense; cite the statutory provision supposedly violated; set forth the nature and elements of the offense; state the time and place of the offense as nearly as can be done; and state the name of the accused, if known.

Sections 17-3(a)(1),(2) and (3) of the Criminal Code defines the offense of forgery as one committed by a person, when, with intent to defraud, he knowingly:

"(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or

(2) Issues or delivers such document knowing it to have been thus made or altered; or

(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered." Ill. Rev. Stat. 1969, ch. 38, par. 17-3(a)(1), (2) and (3).

• 4 The indictment in this case depicts the forged instrument by a "purport description," or in narrative form. If it explicitly identifies and describes the instrument, it is not necessary that there also be a "tenor description." People ex rel. Miller v. Pate, supra 287.

• 5 The indictment here describes the check as being dated February 4, 1969, made payable to Edward P. Davis in the sum of $480,000, drawn on The First National Bank of Waukegan, and purportedly made and signed as drawer by Marjorie Porter. This description is sufficient. The number of the check and the color, the number of the account or other descriptive features, are not necessary to explicitly identify the check in question.

• 6, 7 The contention of the defendant that the indictment is defective because it makes no mention of the unlawfulness relating to the signature of the purported drawer is without merit. He argues that the signature may have been made with the consent of Marjorie Porter, and that the indictment requires one to presume that Marjorie Porter did not give her consent. In this regard, we think that the indictment was sufficient in charging that the check purports to have been signed by Marjorie Porter, as drawer, and that the defendant knew the check was made and signed by another. The charge was in the language of the statute, and set forth the essential elements of the offense sufficiently to inform the defendant of the charges against which he must defend, and to bar a second prosecution for the same offense. The old requirement of pleading technicalities in an indictment, has yielded to the command that the substance of the charge be stated. (People ex rel. Miller v. Pate, supra 287, 288; People v. Billingsley, supra 299. Whether the various requirements of Section 111-3(a) of the Code of Criminal Procedure are met, must be determined by the substance of the charge and not by the technicalities of its language. (People v. Billingsley, supra.) We believe that the indictment charged an offense.

The defendant entered his plea of guilty on June 30, 1969, and judgment was entered on the plea on that date. The hearing in aggravation and mitigation and with respect to probation was set for July 24, 1969, and on that date, the court sentenced the defendant to the penitentiary for a term of from three to six years, and denied his application for probation. The defendant moved for and was granted a stay of execution and mittimus. On August 5, 1969, he filed his motion for a new ...


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