APPEAL from the Circuit Court of Mercer County; the Hon. L.E.
ELLISON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant Robert Allen Myers from the conviction in a bench trial of the offense of forgery in violation of section 17-3(a)(2) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 17-3(a)(2)). Following conviction, defendant was sentenced to a term of imprisonment of not less than 1 nor more than 5 years.
The defendant Robert Allen Myers was charged by information with the offense of forgery. There was no indictment. The offense occurred on or about December 21, 1973. On appeal in this court, defendant challenges the procedure, and contends that the application of the amendment to section 111-2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-2), was improperly applied retroactively to allow the State to proceed by information where the law at the time the offense was committed, and at the time defendant was originally charged, required all felonies to be prosecuted by indictment. It is contended that the procedure violated the ex post facto provisions of the United States and Illinois Constitutions and contravened principles of statutory construction.
It appears from the record that prior to or during the month of April 1975, an indictment was returned charging defendant Myers, but the Circuit Court of Mercer County refused to accept the indictment because the grand jury was tainted. In April 1975, subsequent to the return of the indictment, the State filed an information which charged defendant had committed the offense of forgery, in violation of the Criminal Code as hereinabove specified, by executing a document capable of defrauding. Defendant, acting without counsel, waived preliminary hearing on the information. Defendant was admitted to bond and in June 1975, filed a motion for discovery and a bill of particulars, which were answered in November.
On October 1, 1975, an amendment to section 111-2 of the Code of Criminal Procedure became effective, and authorized the commencement of felony prosecutions by either indictment or information. On October 30, 1975, the State filed an information, on which the conviction is based, and charged the offense of forgery based on the same acts as alleged in the earlier information. The information last filed differed from the prior information in that it charged a violation of section 17-3(a)(2) of the Criminal Code based on delivery of a document capable of defrauding. Defendant was arraigned on the later information and a preliminary hearing was held on November 5, 1975, on that information.
On November 12, 1975, defendant filed a motion to quash arraignment on the old information on the ground that at the time the offense was allegedly committed and at the time the information was filed, the prosecution for a felony could proceed only by indictment, unless waived by the defendant. That motion, as well as others filed by the defense in the earlier information proceeding, was, by order of the trial court, considered as filed in the proceeding involving the second information which was filed on October 30, 1975. In the hearing on November 12, 1975, the two causes were consolidated for trial on the State's motion. On November 17, 1975, after a hearing on defendant's motion to suppress a confession, the trial court ruled that the State could not proceed on the earlier information, since that information was filed prior to the effective date of the amendment to section 111-2 of the Code of Criminal Procedure to which we have referred. The court also ruled that the prosecution on the later information, which was filed on October 30, 1975, could proceed, since that information was filed subsequent to October 1, 1975, the effective date of the statutory change. The cases were then severed and the State was ordered to and did proceed to trial on the later information filed on October 30, 1975.
Sometime in the month of November 1975, the State filed a bill of particulars which alleged that the date of the offense involved was on or about January 10, 1974, whereas the information had alleged that the offense was committed on or about December 21, 1973. A bench trial was begun on November 24, 1975. The evidence for the State established that during the holiday season, in December of 1973 or January 1974, defendant presented an Iowa welfare check (payable in the sum of $166 to Estafana Perales) to a cashier at LeRoy's Jack and Jill. Although the check was not signed in the cashier's presence, it was endorsed with the name Perales and with defendant's name. Both signatures on the back of the check were written by the same person. The writing on the back of the check matched defendant's handwriting specimen. The cashier cashed the check for the defendant (who had entered the store alone and did not purchase anything). The store could not obtain payment on the check.
The evidence for the State included testimony by a postal inspector, who, on October 17, 1974, had taken a statement from the defendant at defendant's home. In that statement, defendant first denied that he had endorsed the name of the payee, Estafana Perales, but later admitted that he had done so. By way of explanation, defendant asserted that he first saw the welfare check at the apartment of Shirley Garcia, who told defendant that she had received the check from an aunt in return for a debt owned to Garcia. Garcia, he stated, asked defendant if he could get the check cashed. Defendant agreed to help, and drove to Jack and Jill with Garcia, where he cashed the check. Defendant told the postal inspector that, in return for his aid, Garcia gave him $10. The statement disclaimed any knowledge on the part of defendant that the check was stolen.
No evidence was presented on behalf of the defense, but a motion for a directed verdict was made on the ground that there was no evidence of intent to defraud and no evidence that defendant did not have authority to endorse and deliver the check. The trial court took the case under advisement, and thereafter on November 26, 1975, found defendant guilty as charged.
A motion in arrest of judgment was filed on December 19, 1975, which again urged that the State was required to proceed by indictment rather than information. On February 13, 1975, the court heard arguments on the motion and denied the motion, and thereafter sentenced defendant to a term of not less than 1 nor more than 5 years imprisonment.
The first consideration involved in the instant case is whether the legislature intended the statutory change to apply to prosecutions for offenses which were committed prior to the effective date of the amendment to section 111-2 of the Code of Criminal Procedure. Section 4 of the Statutory Construction Act (Ill. Rev. Stat. 1975, ch. 131, par. 4) provides in part:
"No new law shall be construed to repeal a former law * * * as to any * * * right accrued, or claim arising under the former law, or in any way whatever to affect any * * * right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding."
In People v. Anderson (1973), 53 Ill.2d 437, 292 N.E.2d 364, the Illinois Supreme Court considered the retroactive application of an amendment to section 103-5(b) of the Code of Criminal Procedure. At the time the defendant in Anderson was charged, section 103-5(b) of the Code of Criminal Procedure provided:
"Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless ...