APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
James Jones was convicted of armed robbery following a jury trial in Macon County on November 16, 1970, and sentenced to imprisonment for a term of eight to twenty-four years. Claiming that he had been denied his constitutional right to be indicted by a grand jury, defendant appealed to the Appellate Court for the Fourth District. That court reversed his conviction (4 Ill. App.3d 870), and we granted the State's petition for leave to appeal.
On October 7, 1970, the Macon County grand jury returned an indictment charging defendant Jones and Michael Anderson with armed robbery. Its relevant portions are:
"The Grand Jurors * * * present, that MICHAEL ANDERSON and JAMES J. JONES, * * * the twenty-fourth day of September in the year of our Lord One Thousand Nine Hundred and Seventy, at and in the County of Macon aforesaid, in the State of Illinois, aforesaid, at 406 East Cantrell Street, City of Decatur, committed the offense of ARMED ROBBERY, in violation of Chapter 38, Section 18-2, Ill. Rev. Stat., 1969, in that they knowingly took an indeterminate amount of United States currency from the person and presence of Charles Mundy, by threatening the imminent use of force, while armed with a dangerous weapon, to-wit: a Winchester, single-barrel, sawed-off shotgun * * *."
On the morning of trial, November 16, 1970, the State's Attorney moved to amend the indictment by substituting the name "Delbert R. Mundy" for "Charles Mundy"; the motion was granted over defendant's objection. Testimony at trial established that Charles Mundy was Delbert R. Mundy's son. Defendant was found guilty of armed robbery under the amended indictment.
The sole issue before us is whether the misnomer of the armed-robbery victim in this case constituted a formal defect under our amendment statute, section 111-5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 111-5), which provides:
"111-5. 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:
(a) Any miswriting, misspelling or grammatical error;
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse or proviso contained in the statute defining the offense; or
(f) The use of alternative or disjunctive allegations as to the acts, means, intents or results charged."
It is, of course, clear from a reading of the statute that its enumeration of certain defects as "formal" is ...