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People v. Mahoney

APRIL 10, 1974.




APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.


Defendant pleaded guilty to the offense of indecent liberties with a child in violation of Ill. Rev. Stat. 1969, ch. 38, par. 11-4. Sentence of 4 to 8 years was imposed.

Upon appeal it is urged that the conviction must be reversed because the indictment did not allege the name of the injured party or, in the alternative, that "the order denying probation be reversed and he be granted probation". The challenged allegation of the indictment is in the language:

"[K]nowingly and lewdly fondled and touched the vaginal area of a female child under the age of 16 years, to-wit: one year of age, whose name will be revealed at a trial of this cause, he doing said act with the intent to arouse and satisfy his sexual desire."

The guilty plea was negotiated by defendant, his counsel and the State's Attorney and was tendered to the court upon the case being called for trial. There was no motion to quash the indictment. The record shows that prior to such tender of plea, counsel had moved for and obtained the items of discovery provided in Supreme Court Rule 412. Upon counsel's motion, psychiatric examination was ordered to ascertain his competence to stand trial. The psychiatrist's examination found defendant to be without delusions, correctly oriented with no history of mental illness and of average intelligence. The defendant waived jury trial on the issue and the court entered an order finding defendant competent to stand trial.

In People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182, it was said:

"Where an indictment charges an offense either against persons or property, the name of the person or property injured, if known, must be stated, and the allegation must be proved as alleged. * * * The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. * * * Since the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and not a mere technical rule." 7 Ill.2d at 161.

Succeeding opinions have stated that the essential function of such allegation is to permit the defendant to prepare his defense and to prevent surprise at trial, and to establish such a record as would permit him to plead a conviction or an acquittal in bar of a subsequent prosecution. (People v. Nelson, 17 Ill.2d 509, 162 N.E.2d 390; People v. Johnson, 20 Ill.2d 336, 169 N.E.2d 776; People v. Harden, 42 Ill.2d 301, 247 N.E.2d 404, and People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361.) In each of these cases the court analyzed the allegation and the facts of record in terms of the function served by the Rule, and the court determined the issues in the light of whether defendant was, in fact, unable to prepare his defense or was unable to plead in bar of subsequent prosecution.

Defendant urges that the case is controlled by the opinion in People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 263 N.E.2d 27. There defendant entered a plea of guilty to burglary. The language of the indictment was ambiguous in terms of ownership of the dwelling. Such plea was entered in 1969 prior to the effective date of Supreme Court Rule 412 (October 1, 1971), providing extensive discovery, and the effective date of Supreme Court Rule 402, requiring that the record show a factual basis for the plea (September 1970).

Without reference to an indictment's function of supplying information for a preparation for trial or establishing facts of record to support a plea in bar which are discussed in Walker and Harden, the court held the indictment void upon the authority of People v. Picard, 284 Ill. 588, 120 N.E. 546. There was no reference to the function of an indictment in the context of procedural access to facts which permitted defendant to prepare his defense, or a record which would support a plea in bar as discussed in Walker.

Since Ledford some appellate opinions have followed strictly the requirements that the person or property affected by the offense be identified in the indictment. (People v. Wolf, 7 Ill. App.3d 739, 288 N.E.2d 688; People v. Allsop, 6 Ill. App.3d 688, 286 N.E.2d 387, People v. Moyer, 1 Ill. App.3d 245, 273 N.E.2d 210.) Other appellate opinions have reviewed the matters of record to ascertain whether or not the accused was, in fact, misled in any way in the preparation of his defense. People v. Springs, 2 Ill. App.3d 817, 277 N.E.2d 764; People v. Viar, 131 Ill. App.2d 983, 268 N.E.2d 872; People v. Cicchetti, 2 Ill. App.3d 535, 275 N.E.2d 661; People v. Kaprelian, 6 Ill. App.3d 1066, 286 N.E.2d 613; People v. Palmer, 4 Ill. App.3d 309, 280 N.E.2d 754.

In People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361, the indictment named Charles Mundy as the victim of armed robbery. Upon the date of trial, the court permitted amendment of the indictment to show the name of the victim as Delbert Mundy, a different individual. The court affirmed the trial court's allowance of the amendment as a formal defect within the ambit of Ill. Rev. Stat. 1969, ch. 38, par. 111-5. The court said:

"The liberation of criminal pleading also reflects a lessening in importance of the indictment's secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense. Similarly, the time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record. (See, e.g., People v. Jankowski (1945), 391 Ill. 298, 302, 63 N.E.2d 362.) The primary safeguard of indictment by ...

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