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People v. Troutt

OPINION FILED JULY 13, 1977.

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

v.

RANDY M. TROUTT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jefferson County; the Hon. HARRY L. ZIEGLER and the Hon. CLARENCE PARTEE, Judges, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant-Appellant Randy M. Troutt was convicted in the Circuit Court of Jefferson County of the unlawful possession of phencyclidine (PCP), a controlled substance. On his appeal, we find it necessary to decide only whether the information by which he was prosecuted was sufficient.

The information, filed March 30, 1976, charged defendant with unlawful possession of less than 30 grams of a controlled substance, amphetamine. (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b).) The information was signed by Donald E. Irvin, the State's attorney, and sworn to before a notary public by Irvin, as follows: "The undersigned, on oath, says that the facts set forth in the foregoing Information are true in substance and matter of fact." Defendant was arrested that same day, March 30, and held in the Jefferson County jail until April 5, when he was released on bail.

On April 7 defendant appeared, represented by the public defender, for preliminary hearing. The court read the information and asked defendant if he understood the charge, to which defendant answered in the affirmative. The assistant State's attorney then moved to amend the information because chemical analysis at the crime laboratory in DeSoto had revealed that the substance was not amphetamine, as indicated by the "field test," but phencyclidine. He thus requested that the information be amended to read: "* * * in that said Randy Troutt did knowingly and unlawfully have in his possession less than 300 grams of a substance containing phencyclidine * * *." (Emphasis added.) The assistant State's attorney stated that the amendment would not change the statutory provision alleged to have been violated: the information would still charge a violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), a Class 3 felony. The assistant State's attorney further argued in support of the amendment that the "field test" would not indicate whether the substance was amphetamine or phencyclidine, only that it was a controlled substance. He apologized for any surprise but argued that defendant was not prejudiced by the amendment.

The public defender objected to the oral motion to amend. He stated that he was surprised by the motion, and argued that the effect of the amendment was to change the nature of the substance and that defendant had been arrested and jailed on the basis of an inaccurate field test. The public defender requested that the court continue the preliminary hearing, require the State's attorney to file a written motion for amendment and permit the public defender to respond to the written motion. After the assistant State's attorney told the court that nothing would prevent the State from dismissing the information and filing a new charge, the court overruled the defense objections and permitted the information to be amended by interlineation. The court itself made the changes in the body of the information, which was not reverified.

After the jury returned a verdict of guilty of unlawful possession of phencyclidine, defendant filed post-trial motions, which included a motion in arrest of judgment pursuant to section 116-2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 116-2), alleging, inter alia, that defendant was prosecuted on an unverified information.

• 1 Defendant has not argued this issue extensively on appeal, although he did mention in his brief and at oral argument that "the corpus delicti underwent a material amendment without any reverification." We think that by objecting to the amendment at the preliminary hearing and by raising and arguing the issue in his post-trial motion in arrest of judgment, defendant has sufficiently preserved the issue for purposes of review.

• 2 Our constitution guarantees to every person accused of a crime the right to demand the nature and cause of the accusation against him and to have a copy of the writing accusing him of committing a crime. (Ill. Const. 1970, art. I, § 8; cf. U.S. Const., amend. VI.) This right of long standing "is no empty technicality, but a substantial provision that may not be ignored." (People v. Green, 368 Ill. 242, 254, 13 N.E.2d 278, 284 (1938).) Section 111-3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 111-3) was enacted to insure compliance with this constitutional requirement (see People v. Chitwood, 42 Ill. App.3d 680, 681-82, 356 N.E.2d 404, 406-07 (5th Dist. 1976)), and it has been held that a charge which conforms to that section satisfies the constitutional guarantee. People v. Tammen, 40 Ill.2d 76, 237 N.E.2d 517 (1968); People v. Billingsley, 67 Ill. App.2d 292, 213 N.E.2d 765 (2d Dist. 1966).

Section 111-3 reads in pertinent part as follows:

"(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 ...


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