APPEAL from the Circuit Court of McHenry County; the Hon.
CHARLES S. PARKER, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This appeal presents only one question the sufficiency of the indictment charging the defendant with the crime of which he was convicted. The defendant was charged with theft of property worth over $150. After a jury trial he was convicted and sentenced to the penitentiary for a term of not less than 1 nor more than 3 years.
In this appeal the defendant contends his conviction is void because the indictment charging him with the offense of theft omitted the word "unauthorized" in charging that he had obtained control over the 1973 automobile in question.
Section 16-1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)) defines theft as follows:
"A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; [and]
(1) Intends to deprive the owner permanently of the use or benefit of the property;"
The actual indictment having omitted the word "unauthorized" from the above language, it is contended by the defendant that the indictment did not charge a crime, inasmuch as the manner of obtaining control over the property in question is an essential element of the offense of theft.
The circumstances related by the defendant in his statement to the police show that the defendant and two other youths, younger than himself, traveled from Chicago to Woodstock on the train on the day of the crime and that at least one of the other two had the intention of stealing an automobile when they started out. After they arrived in Woodstock they inquired of a police officer the directions to a place known as Pleasant Farm. Sometime after receiving these directions one of the boys noticed a car on the street with the ignition key in it. He got into the car, picked up the defendant and the other boy and proceeded toward Wisconsin in the car. They were apprehended by the police near Walworth, Wisconsin, and returned to Woodstock. Subsequently, the defendant's attorney entered into plea negotiations with the State and indicated a plea of guilty would be entered, but at the hearing on the guilty plea the defendant's statements to the court as to his guilt were so equivocal that the trial court refused to accept the guilty plea and defendant was ordered to stand trial. At his trial the defendant contended he did not know the automobile had been stolen but the jury quite logically believed otherwise and he was found guilty.
• 1 The requisites for the sufficiency of an indictment are enunciated in section 111-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 111-3). The Illinois Supreme Court has held that the indictment must apprise the defendant clearly of the charge against him so he may prepare his defense accordingly and to guard against the possibility of double jeopardy by describing the particular offense so precisely that the defendant could not be tried again for the same crime. (People v. Ross (1968), 41 Ill.2d 445, 448; People ex rel. Miller v. Pate (1969), 42 Ill.2d 283, 285; People v. Harvey (1973), 53 Ill.2d 585.) Indictments must, therefore, be exact in charging the particular crime and also must, by their language, charge an act which is defined by the State as being a crime. In the case before us it is clear that if the defendant and his companions had been authorized to use and control the automobile in question they would not be guilty of theft. Therefore, since the indictment does not state they were not authorized, it is the defendant's contention the indictment does not charge a crime and no valid conviction can be had under such indictment.
While the fundamental purposes of an indictment remain the same, court decisions have reflected relaxations as to the niceties of pleadings generally over the past few years, including the technicalities dispensed with by the Civil Practice Act and have had their effect on the more technical aspects of indictments, so that the fundamental purposes thereof have been emphasized at the expense of traditional but nonessential wording. This trend is noticeable in recent decisions of our Supreme Court, e.g., People v. Harvey (1973), 53 Ill.2d 585 (where the court decided an indictment for aggravated battery was valid although it omitted the statutory words "without legal justification"); People v. Mahle (1974), 57 Ill.2d 279 (where an indictment for deceptive practices was upheld against a contention that it was defective in not sufficiently identifying the persons deceived); People v. Gallo (1973), 54 Ill.2d 343 (in which an indictment for intimidation was not held void although it omitted the phrase "without legal justification" in stating the communication of a threat); People v. Gregory (1974), 59 Ill.2d 111 (where a burglary indictment omitted to state the ownership of the building and that entry was "knowingly" made); People v. Pujoue (1975), 61 Ill.2d 335 (in which the Supreme Court held that when attacked for the first time on appeal (as is the case here), a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct).
While the Supreme Court cases noted above are not on the precise point raised here as to the omission of the word "unauthorized" in a theft indictment, they confirm a trend noted in the opinion of the First Appellate District in People v. Wade (1970), 131 Ill. App.2d 415, which involved the exact point raised in the case before us. There the defendants were charged with theft under section 16-1(a)(1) of the Criminal Code, exactly as here and, as here, they indicated the indictment omitted the word "unauthorized" in stating that the defendants "knowingly obtained control" over the property stolen. After noting the State's argument that "the trend today is to be concerned more with the substantive rights of the accused and less with rigid technicalities, especially those dealing with pleading, and that the complaints here adequately informed the defendants of the nature and elements of the offense charged," the court said:
"We conclude that the complaint herein did state the offense of theft in compliance with Chapter 38, section 16-1(a)(1), sufficiently for defendants to know the nature and elements of the offense and to be able to prepare their defense. Here, the failure to include the word `unauthorized,' while not desirable, was not a substantial defect and was not a necessary element so as to render the complaint fatally defective." 131 Ill. App.2d 415, 418.
In People v. Miller, 24 Ill. App.3d 504, in reversing its previous opinion expressed in People v. Stewart, 3 Ill. App.3d 699, the court (5th Dist.) noted the increasingly liberal trend as to pleadings in indictments and said, in ...