APPEAL from the Circuit Court of Cook County; the Hon. RONALD
J. DeMARCO, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Delores Estell Hall, was found guilty on each of 18 counts of violating section 13 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 452), in that as a "person engaged in the business of selling tangible personal property at retail" she failed to file the Retailers' Occupation Tax returns required by section 3 of the Act (Ill. Rev. Stat. 1973, ch. 120, par. 442). The 18 counts covered the 18 months from June, 1973 to November, 1974. Also, defendant was found not guilty of violating section 13 on the charge of engaging in the business of selling tangible personal property at retail after her Certificate of Registration had, in accordance with section 2b (par. 441b), been revoked on October 1, 1974.
Defendant raises four issues on appeal. First, she claims the wording of the section of the statute under which she was convicted, which was also used verbatim in the complaint, was indefinite because it failed to define "person engaged in the business of selling tangible personal property at retail." The State construes this argument to mean that defendant is contesting the sufficiency of the charge and claims the issue has been waived because it is raised for the first time in this court and, if not waived, the charges were specific enough to enable defendant to prepare a defense and allow a conviction on the charge to be pleaded in bar of subsequent prosecutions for the same offense.
1 Addressing the issue as we believe defendant has presented it, the statute is not invalid because of vagueness. The words "person" and "sale at retail" as used in sections 13 and 3 are clearly defined in section 1 (par. 440) of the same act. These sections are part of the Retailers' Occupation Tax Act and are to be read together. The legislature need not repeat the definition of a term, once defined, each and every time that term is used in an act. To require otherwise would be illogical, needless repetition.
2 Defendant's specific objection to the wording of the section is that it is not clear whether one isolated sale of personal property would require the filing of a return. This somewhat frivolous argument is negated by the words "business of selling" and by the title of the Act, "Retailers' Occupation Tax Act." One isolated sale is not a "business" nor an "occupation" as those words are commonly understood. Section 1 (par. 440) specifically provides that "The isolated or occasional sale of tangible personal property at retail by a person who does not hold himself out as being engaged (or who does not habitually engage) in selling such tangible personal property at retail * * * does not constitute engaging in a business of selling such tangible personal property at retail within the meaning of this Act." Ill. Rev. Stat. 1973, ch. 120, par. 440.
3 Whether the charges were stated sufficiently in the complaint is a separate question. It was not waived by defendant as the State claims. The State relies on section 114-1(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-1(b)):
"The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time * * * shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived."
Subsection (a)(8), not quoted or referred to by the State, reads: "The charge does not state an offense." Under subsection (a)(8), defendant's claim that the complaint, by using the words of the statute, ambiguously describes the charge against defendant, is not waived.
4 But defendant's failure to raise the question below requires the sufficiency of the complaint to be judged by a different standard.
"We are not here presented the question and we do not decide whether this complaint could withstand a pretrial motion filed pursuant to section 114-1 or a motion in arrest of judgment filed pursuant to section 116-2 of the Code of Criminal Procedure. While we do not approve of any failure to comply strictly with the explicitly stated requirements of section 111-3 of the Code of Criminal Procedure, the sufficiency of a complaint attacked for the first time on appeal must be determined by a different standard, * * *.
When attacked for the first time on appeal 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. People v. Grant, 57 Ill.2d 264; People v. Harvey, 53 Ill.2d 585." (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437. See also People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456.
The record clearly shows that the wording of the complaint did not hinder defense counsel in preparing a defense. Throughout the pretrial motions to suppress, the trial itself and the post-trial motion for a new trial, defendant and defense counsel treated the complaint as charging defendant with failure to file Retailers' Occupation Tax returns. The ambiguity in the statute that defendant complains of here was never made an issue at trial. No claim was made by defendant that she only made one sale. Her defense impliedly admitted otherwise. She only claimed she did not run the business any longer. A complaint
"* * * which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged." People v. Patrick (1967), 38 Ill.2d 255, at 258, 230 N.E.2d 843.
The complaint was also sufficient to be pled in bar to any future prosecution. Each count covered a specific month, which was clearly stated. This and the record of the evidence at the trial are sufficient to bar any future attempt to prosecute for the same ...