APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This cause is an appeal from a judgment of conviction entered by the circuit court of St. Clair County, pursuant to a jury verdict against the defendant, Larry Mager, on an indictment for forgery under section 17-3(a)(3) of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 17-3(a)(3)).
A brief statement of the facts underlying this alleged crime are required for an understanding of the various points raised on this appeal.
The defendant was taken into custody shortly after presenting a prescription to a Belleville pharmacy. It was uncontroverted at trial that the physician's signature appearing thereon was a forgery as was the prescription for the drug, an amphetamine, itself, although both signature and prescription were on a printed prescription blank. The prescription was made out to Jerry Leroy. It was also uncontroverted at trial that the defendant, when initially questioned about the prescription, stated that he was getting the prescription filled for Leroy, whom he had just left at Leroy's apartment. The defendant later admitted that he had lied about where he had received the prescription.
A true bill of indictment was returned by the St. Clair County Grand Jury which, in pertinent part, stated,
"That on the 2nd day of April, 1973, in said county Larry Mager committed the offense of FORGERY in that he with intent to defraud did knowingly possess with intent to deliver to Harold Smith Pharmacy, Belleville, Illinois, a document apparently capable of defrauding another in that it purported to have been made by another, Dr. Agustine V. Paredes, a copy of which document is attached to, incorporated in and made a part of this indictment by reference thereto, said document being a prescription the defendant knowing said document to have been thereby made, in violation of paragraph 17-3, Chapter 38, Illinois Revised Statutes."
The defendant was thereafter tried under section 17-3(a)(3) of the Illinois Criminal Code (Ill. Rev. Stat., ch. 38, par. 17-3(a)(3)) which provides in pertinent part:
"(a) A person commits forgery when, with intent to defraud, he knowingly:
(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered."
The words "knowing it to have been thus made or altered" in subparagraph (a)(3) refer to subparagraph (a)(1) of section 17-3, which provides in pertinent part:
"(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another * * *." Ill. Rev. Stat. 1971, ch. 38, par. 17-3(a)(1).
It is defendant-appellant's contention on this appeal that this indictment, on which defendant was convicted, failed to properly charge the offense of forgery. The insufficiency of the indictment is contended on the ground that it failed to allege the distinctive mental state required in subparagraph (a)(3) of this statute, i.e., that the defendant knew the prescription bore a forged signature.
• 1 As we held in People v. Pruden, 25 Ill. App.3d 47, 49, 322 N.E.2d 501:
"The test of sufficiency of an indictment is whether it: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant to enable him to prepare a defense, and (3) would sustain a plea of acquittal or conviction in bar of any further prosecutions of the same offense. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Grieco, 44 ...