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People v. Mass

SEPTEMBER 15, 1975.

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

v.

RONALD RICHARD MASS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

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

This is an appeal under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1). The defendant was convicted of attempted murder on May 20, 1971, and sentenced to a term of not less than 10 nor more than 15 years in the penitentiary. In October, 1971, the defendant filed a petition for rehearing on aggravation and mitigation. This court treated the petition as one for post-conviction relief and remanded the case to the circuit court of Winnebago County for an evidentiary hearing under the Post-Conviction Hearing Act.

The defendant filed a petition for writ of habeas corpus and a petition for relief under the Post-Conviction Hearing Act in the trial court. After a hearing, both petitions were denied by the trial court.

In this appeal the defendant contends (1) that his conviction is illegal and void because the information charging him with "Attempt, in that [he], with intent to commit the offense of Murder" did not allege that the defendant took any substantial step toward the commission of the offense; (2) that the defendant did not effectively waive his right to be prosecuted by indictment; (3) that the guilty plea entered by the defendant was not knowingly and voluntarily entered because the defendant was not properly admonished at the guilty plea hearing under Supreme Court Rule 402(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(b)).

As to the first contention, it is the defendant's theory that since the statute defining the crime of Attempt requires that a substantial step be taken toward the commission of the offense, the failure to state such substantial step was so taken is a fatal defect in the charge.

• 1 We think the defendant has misunderstood the effect of the wording defining the elements of the offense of attempt. The statute (Ill. Rev. Stat. 1973, ch. 38, par. 8-4(a)) reads:

"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."

It is clear that under this wording if the defendant did not, in fact, take any substantial step toward the commission of the offense he could not be guilty of the offense of attempt, but this does not mean that an information charging him with attempt must be in those precise words. Where, as here, the information describes an act or behavior which in itself is a substantial step toward the commission of the offense, it is sufficient. The purpose of requiring the charge to be in specific language is so that the defendant can properly respond to the charge and to bar any subsequent prosecution for the same offense. (People v. Patrick, 38 Ill.2d 255; People v. Hayes, 52 Ill.2d 170.) We believe the language of the information in this case, that the defendant, "with intent to commit the offense of murder, attempted to kill and murder Louis Cotti," is sufficient to inform the defendant of the charge against him so he could prepare his defense and to prevent his being subjected to another prosecution for the same crime. The fundamental purpose of the information was therefore fulfilled.

As to the sufficiency of the charge itself, the language was clearly sufficient to charge an attempt — it is not required that it be sufficiently detailed to support the actual crime itself. In People v. Williams, 52 Ill.2d 455, involving the charge of attempted kidnapping, the indictment was challenged in that it did not state that the confinement of the child was without the parents' consent. The supreme court in answer to this contention said:

"But the indictment was brought, not for kidnapping, but for the crime of attempt. As an indictment for conspiracy need not allege all the elements of the substantive offense which is the object of the conspiracy [Citation], in an indictment for attempt, the crime intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of the crime." 52 Ill.2d 455, 460-61.

Likewise, in People v. Lonzo, 59 Ill.2d 115, 116, involving an attempted theft, the court said in answer to the contention that the indictment was defective in not alleging ownership of the property, "Obviously, the elements of an inchoate offense cannot be charged with the particularity that is possible after the offense has been completed."

The case of People v. Fowler, 8 Ill. App.3d 927, 930, almost exactly parallels the facts of this case in that in an indictment for attempted murder the indictment merely recited that the defendant, "`with the intent to commit the offense of murder, intentionally and knowingly attempted to kill one Ronnie Fair, without lawful justification * * *.'" The court, in answer to the contention that the indictment was defective in not alleging the acts which constituted a substantial step toward the commission of the offense, said:

"Although the indictment did not describe the particular method of the attempt it was unnecessary for the State to plead such evidentiary details. [Citations.] The essence of the crime of assault with intent to murder, or `attempt * * * murder' as the indictment states, is the specific intent to take life [citation], and in a case of this kind the indictment need not set out the manner of the assault with any degree of particularity." 8 Ill. App.3d 927, 930.

We agree and hold that the information in the case before us was sufficient to sustain the conviction for attempted murder.

• 2 The defendant also contends that he did not constitutionally waive his right to be indicted by the grand jury. The record discloses that at the waiver of indictment proceeding the defense attorney moved the court to waive prosecution by indictment on behalf of "all three defendants." Following is the ...


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