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People v. Chitwood

OPINION FILED OCTOBER 7, 1976.

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

v.

CARMON R. CHITWOOD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Edwards County; the Hon. BRUCE SAXE, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Defendant, Carmon R. Chitwood, was tried before the Circuit Court of Edwards County on a charge of reckless driving. After a bench trial, he was convicted and sentenced to six months periodic imprisonment. Defendant contends, for the first time on appeal, that the complaint upon which he was tried and convicted was insufficient because it failed to set forth the nature and elements of the offense charged, as required by section 111-3(a)(3) of the Code of Criminal Procedure. Ill. Rev. Stat. 1975, ch. 38, par. 111-3(a)(3).

Defendant was charged on an "Illinois Uniform Traffic Ticket and Complaint," provided for in Supreme Court Rule 552. (Ill. Rev. Stat. 1975, ch. 110A, par. 552.) The uniform traffic ticket is a preprinted form which provides inadequate space for stating the nature and elements of the offense charged. The common practice, therefore, is to charge the offense by name and statutory citation only. In line with this common practice, the ticket issued to defendant merely charged him with "reckless driving" in violation of section 11-503 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-503) and stated the time and location of the alleged offense.

• 1 The United States and Illinois constitutions both afford a criminal defendant the right to be informed of the nature and cause of the accusation against him (U.S. Const., amend. VI; Ill. Const., art. I, § 8). The purpose of this guarantee is to allow defendant to prepare his defense and to plead a subsequent judgment as a bar to future prosecution arising out of the same conduct. (People v. Griffin, 36 Ill.2d 430, 223 N.E.2d 158 (1967).) Section 111-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-3) was enacted to insure the accomplishment of this purpose. It provides that:

"(a) A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the date and county of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty."

The ticket issued to defendant clearly failed to comply with section 111-3(a)(3). If defendant had raised this defect in the trial court, reversal of his conviction would now be required. (People v. Walker, 20 Ill. App.3d 1029, 314 N.E.2d 641 (1974).) In People v. Tammen, 40 Ill.2d 76, 237 N.E.2d 517 (1968), however, the Illinois Supreme Court held that a conviction based on a uniform traffic ticket, when attacked for the first time on appeal, will not be set aside for failure to comply with section 111-3(a)(3). In reaching this decision, the court reasoned that:

"Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State's Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged. Under section 111-6 (Ill. Rev. Stat. 1967, chap. 38, par. 111-6) the accused may request a bill of particulars which will enable him `to prepare his defense.'" 40 Ill.2d 76, 78-79, 237 N.E.2d 517, 518-19.

The Supreme Court has recently held that an information or indictment which does not comply precisely with section 111-3 is sufficient, when attacked for the first time on appeal, if it allows the defendant to prepare his defense and to plead a resulting judgment as a bar to future prosecution arising out of the same conduct. (People v. Gilmore, 63 Ill.2d 23, 344 N.E.2d 456 (1976); People v. Pujoue, 61 Ill.2d 335, 335 N.E.2d 437 (1975).) These decisions demonstrate the Supreme Court's continued reluctance to void a charging instrument on review where the alleged deficiency has not been raised in the trial court. They also persuade us that Tammen remains a correct statement of the law.

• 2 In People v. Ryant, 41 Ill. App.3d 273, 354 N.E.2d 395, we relied upon Tammen in upholding the sufficiency of a uniform traffic ticket against the argument that it failed to comply with section ...


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