Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. John Fitzgerald, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County defendants, Ruth Wallace and Katie Holloway, were convicted of attempting to bribe two police officers. (Ill. Rev. Stat. 1963, ch. 38, par. 8-4.) Mrs. Wallace was sentenced to three years probation conditioned upon the first three months being served in the county jail. Miss Holloway was sentenced to the penitentiary for a term of one to two years. A privately retained counsel then filed a "Section 72 motion to void judgment and sentence" (Ill. Rev. Stat. 1967, ch. 110, par. 72) contending that the indictment was void. The circuit court denied the petition and the appellate court affirmed. (People v. Wallace, 10 Ill. App.3d 580.) We granted leave to appeal.
Two Chicago police officers seized a large sum of money from defendants and placed them in custody. As they were being transported to the police station, they proffered the money to the officers in return for their release. Their offer was rejected and defendants were charged with attempted bribery. In their section 72 petition defendants asserted that the offense of attempted bribery did not exist and, even if the offer of money had been refused, as in this case, that act constituted bribery. (Ill. Rev. Stat. 1963, ch. 38, par. 33-1.) In effect they argued that the indictment failed to charge a criminal offense. The appellate court rejected their contention reasoning that the offense of attempted bribery was statutorily recognized prior to the adoption of the statutory provisions now at issue. The appellate court held that in the absence of contrary legislative intent, it would not construe section 8-4 (par. 8-4) as inapplicable to cases involving bribery. 10 Ill. App.3d at 582.
Several questions regarding the method of defendants' challenge to the validity of their indictment might exist although no party to this appeal has raised any issue related thereto. The appellate court reached the merits of defendants' contention, and possible defects in their petition will not be considered. Cf. People v. Sarelli, 55 Ill.2d 169, 171.
It is well settled that an indictment which fails to charge a criminal offense is void. (People v. Furman, 26 Ill.2d 334, 335.) As such, it does not confer jurisdiction upon a court (People ex rel. Kelley v. Frye, 41 Ill.2d 287, 290), and a conviction resulting therefrom may not be sustained (People v. Harris, 394 Ill. 325, 327; People v. Nickols, 391 Ill. 565, 571; People v. Fore, 384 Ill. 455, 458). A convicted defendant may challenge the validity of an indictment for failure to allege a criminal violation either by direct review or in collateral proceedings. People v. Edge, 406 Ill. 490, 494; People v. Buffo, 318 Ill. 380, 384.
People v. Peters, 265 Ill. 122, involved a bribery conviction under former law in which the defendant was arrested after he gave money to an agent of a State's Attorney in order to influence the conduct of a pending case. The official arranged to have the transaction witnessed and the arrest made after transfer of the funds. Defendant contended on appeal that his bribery conviction (section 31) could not be sustained under the facts and, at most, his actions constituted attempted bribery (section 32). (Hurd's Stat. 1911, ch. 38, pars. 31 and 32.) The court reasoned that enactment of the aforesaid provisions indicated that the legislature "did not intend that a person should be guilty of the offense of bribery unless the bribe was accepted." (265 Ill. at 130.) It reversed the bribery conviction because the State's Attorney had not truly accepted the money.
The Peters decision was overruled in People v. Lyons, 4 Ill.2d 396. That case involved facts similar to Peters, and the statutory provisions pertaining to bribery offenses were unchanged from those considered in Peters. (Ill. Rev. Stat. 1951, ch. 38, pars. 78 and 79.) In upholding the bribery conviction under section 31 (par. 78), the court in Lyons stated at page 399, "A reasonable construction of the provisions in the light of their evident purpose requires that any person who corruptly engages in such a transaction is guilty of bribery, regardless of the motive of the other party thereto."
In 1961 our present Criminal Code was adopted. Section 8-4, in pertinent part, provides:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." Ill. Rev. Stat. 1963, ch. 38, par. 8-4(a).
"A person commits bribery when:
(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept; or
(c) With intent to cause any person to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept." Ill. Rev. Stat. 1963, ch. 38, par. 33-1(a), (c).
Defendants contend that the general attempt provision is used in situations involving potential but incompleted violations of any section of the Criminal Code, and it has no application to cases ...