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People v. Tyler

OPINION FILED JANUARY 20, 1977.

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

v.

LOUISE TYLER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The State appeals from the pretrial order of the Sangamon County Circuit Court dismissing the information filed against defendant, Louise Tyler.

On October 29, 1973, a 16-count information was filed charging defendant with violations of section 13 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 452). The first 15 counts alleged that defendant, doing business as Louise's Dress Shop, "* * * committed the offense of FILING A FRAUDULENT RETAILERS' OCCUPATION TAX RETURN with the Department of Revenue of the State of Illinois * * *" for the months of February, 1972, through and including April, 1973. The last count alleged that defendant "* * * committed the offense of FAILING TO KEEP BOOKS AND RECORDS AS REQUIRED BY THE RETAILERS' OCCUPATION TAX ACT, for the year 1972 * * *." The information is cast in the language of the statute which provides:

"Any person engaged in the business of selling tangible personal property at retail in this State who fails to file a return, or to keep books and records as required herein, or who files a fraudulent return * * * is guilty of a misdemeanor * * *." Ill. Rev. Stat. 1971, ch. 120, par. 452.

On March 25, 1974, defendant moved to dismiss all the counts in the information alleging: that each count fails to state a cause of action; that counts 1 through 15 fail to allege any specific act or acts of the defendant which constitute the offense; that count 16 lacks the requisite degree of specificity to advise defendant of the nature and cause of the accusation, and that the information is vague and violates due process and does not give defendant sufficient information to prepare his defense, would not act as a bar against further prosecution and fails to allege with specificity the time, place, nature and elements of the offense.

On August 15, 1974, the State moved to amend counts 1 through 15 by adding the following phrase after the statutory citation alleged to have been violated "in that said LOUISE TYLER filed or caused to be filed a Fraudulent Relevant [sic] Occupational Tax Return with the Department of Revenue for the previously stated month."

After hearing arguments on September 4, 1974, the trial court granted defendant's motion to dismiss with leave for the State to amend. The State appealed to this court, said appeal being dismissed December 10, 1974, in a Rule 23 order (Supreme Court Rule 23, 58 Ill.2d R. 23) on the ground that the September 4 order was not final and appealable.

At a February 26, 1976, hearing, the State chose to stand on the information as originally drafted. The trial court ruled again that the information was insufficient as a matter of law and issued a final order dismissing the information with prejudice.

• 1 The State contends on appeal that the information against defendant complied with the requirements of section 8 of article I of the Illinois Constitution which provides in part:

"In criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation * * *." (Ill. Const. 1970, art. I, § 8.)

The State cites People v. Patrick (1967), 38 Ill.2d 255, 230 N.E.2d 843, and People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269, which support the general proposition that an indictment 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 the defendant is apprised with reasonable certainty of the precise offense charged. In People v. Aud (1972), 52 Ill.2d 368, 288 N.E.2d 453, however, it was held that where a statute uses general and generic terms defined in the offense, it is not sufficient to charge the crime in the same general or generic terms used in the statutory definitions; the particular offense or acts which the accused is charged with having committed must be alleged.

An indictment or information must set forth the nature and elements of the crime charged with reasonable particularity so to meet the requirements of section 111-3(a) if the Code of Criminal Procedure which provides:

"(a) A charge shall be in writing and allege the commission ...


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