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People v. Gilmore

APRIL 30, 1975.

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

v.

NORMAN GILMORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Grundy County; the Hon. ROBERT W. MALMQUIST, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 2, 1975.

Defendant Norman Gilmore appeals from a conviction and sentence following a guilty plea to four counts of an information charging burglary and three counts charging forgery. Following plea negotiations, he was sentenced to concurrent terms of not less than 3 years nor more than 9 years. On appeal in this court defendant asserts that the informations charging forgery were insufficient to charge an offense for the reason that the name of the payee was omitted from the purported description of the bank check.

The counts in question described each check by naming the drawer, the maker, the drawee bank, specifying the amount of each check and alleging that the document was "capable of defrauding another." There was, however, omitted from the description in each forgery count, the name or existence of a payee. At the hearing on the plea of guilty, defense counsel stipulated to a statement of facts wherein it was noted that the payee for all three checks was one C.D. Davis. No copy or tenor facsimile of the checks appeared in or with the information.

On appeal in this court, defendant asserts that the information charging forgery of the checks is insufficient to state an offense in view of the fact that it omits the name or existence of a payee. Defendant accordingly asserts that the trial court lacked jurisdiction to either accept the plea of guilty or to impose any sanction. Other issues are raised on appeal which we need not discuss in view of our disposition of this cause.

• 1-3 A plea of guilty admits the factual allegations contained in the indictment or information and thereby obviates the necessity of presenting supporting evidence (People v. Johnson, 28 Ill.2d 531, 193 N.E.2d 39). A plea of guilty generally waives, for the purposes of appeal, any non-jurisdictional defect (People v. Dunn, 52 Ill.2d 400, 288 N.E.2d 463). It is specifically noted, however, that the plea of guilty does not admit that the facts alleged in the indictment or information constitute an offense for which criminal sanction may be imposed. (People v. Nickols, 391 Ill. 565, 63 N.E.2d 759.) Such plea does not waive issues of a jurisdictional nature. (People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483.) In order to confer jurisdiction upon the court, the indictment or information must be sufficient to enable defendant to prepare a defense and it must state a criminal offense. (People v. Minto, 318 Ill. 293, 149 N.E. 241; People v. Nickols, 391 Ill. 565, 63 N.E.2d 759.) No conduct, consent or waiver of defendant can confer jurisdiction, in absence of an accusation which states an offense. If the information or indictment is not sufficient to state an offense, the conviction cannot stand, even where defendant voluntarily pleads guilty, and the defect can be raised for the first time on appeal. People v. Nickols, 391 Ill. 565, 63 N.E.2d 759; People v. Powell, 353 Ill. 582, 167 N.E. 419.

Section 111-3(a) of the Code of Criminal Procedure refers to the manner of charging an offense. (Ill. Rev. Stat. 1973, ch. 38, § 111-3(a).) It is specified therein that the indictment or information set forth the nature and elements of the offense, and that allegations therein be allegations of fact, not conclusions. People v. Crosson, 30 Ill. App.2d 57, 173 N.E.2d 552.

With respect to the offense of forgery, in the Criminal Code in section 17-3 (Ill. Rev. Stat. 1973, ch. 38, § 17-3) it is stated that a person commits the offense of forgery when he, with intent to defraud, 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 so made or altered; * * *."

It is contended by defendant that an instrument described as a check which fails to name a payee would not be a document capable of defrauding another and that, therefore, no criminal offense is alleged.

Our court in People v. Moats, 8 Ill. App.3d 944, 291 N.E.2d 285, held that an indictment charging forgery of a check which failed to state either a payee or an amount did not allege a criminal offense. We concluded that without an allegation showing how such an incomplete document was capable of defrauding another, no charge was stated. The same rule would apply to informations. The Second Appellate District of this State in People v. Teichler, 19 Ill. App.3d 292, 311 N.E.2d 422, held that a count charging forgery of a three-part check failed to state an offense where it omitted any reference to the drawee bank. The court in Teichler rejected the argument of the prosecution that the allegation that the forged document was a "check" was sufficient to allege that the document was capable of defrauding another. In both the Moats case and Teichler, the forgery convictions were reversed.

The State contends that both Moats and Teichler are incorrect in view of the trend away from formality traditionally embodied in criminal pleadings. This trend was noted in People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361 (an armed robbery case), where the court stated (at 464):

"This trend away from the formalism which characterized criminal pleading in the past is embodied in our section 111-5, as disclosed by the chief draftsman's commentary: `The committee felt that the practical limitations should overcome the conceptual ones ...


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