APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
On May 13, 1976, Guy Strait (hereinafter "defendant") was charged with the March 3, 1972 offense of indecent liberties with a child. Steven Kavadas (hereinafter "Kavadas") was 14 years old at the time of the incident in question. After a bench trial in Winnebago County, the defendant was found guilty of this offense and was sentenced to 10 to 20 years imprisonment.
The defendant raises three arguments on appeal: (1) Whether the information charging him with the offense of indecent liberties with a child is void because the prosecution was not commenced within three years of the time of the offense, and the State failed to allege sufficient facts in the information which would extend the limitation period beyond the three years; (2) Whether defendant was proved guilty beyond a reasonable doubt; and (3) Whether defendant's sentence was excessive.
On January 29, 1976, Officer Klaus Price took a statement from Kavadas in which Kavadas alleged that he and the defendant had engaged in sexual activity on March 3, 1972. On the basis of his statement, a warrant was obtained for the defendant's arrest on February 6, 1976, and he was arrested by the F.B.I. a day or two before April 24, 1976, in Phoenix, Arizona. He was taken into custody by Officer Price on that day and brought back to Illinois a couple of days later. A preliminary hearing was held on May 13, 1976, and at the hearing, Officer Edward Miller testified that the defendant had advised them that he had been in Illinois on only two occasions during the last 25 years. Probable cause was found, and the information was issued on that date and reads as follows:
"That on the 3rd day of March, 1972, in the County of Winnebago and the State of Illinois, Guy Strait, a person of the age of seventeen (17) and upwards, committed the offense of indecent liberties with a child, in that he performed an act of deviate sexual conduct with Steve Kavadas, a child under the age of sixteen (16) years, in violation of Paragraph 11-4, Chapter 38, Illinois Revised Statutes."
The facts surrounding the above offense are that the defendant came to the Holiday Inn in Rockford, Illinois, in March of 1972, to shoot a pornographic movie. Kavadas was one of three participants, and during the movie sessions he engaged in various homosexual activities with two other young males over a two-day period. Kavadas, who was 14 years old at the time, received $150 for his role in the movie. Kavadas testified that this was the last film he ever made.
On the night of March 3, 1972, Kavadas returned to the Holiday Inn at defendant's invitation for a dinner engagement. However, the two went straight to the defendant's bedroom where the defendant asked Kavadas if he would mind "going to bed with him." Kavadas testified that he did not question the defendant as to what he meant by "going to bed." Kavadas testified that the defendant then performed anal intercourse on him. Afterwards, the defendant apologized for not taking Kavadas to dinner and gave Kavadas $5 or $10 and told him to go home and get something to eat. Kavadas testified that he turned the defendant down on his request for Kavadas to "go down on him." It is the defendant's activities on the evening of March 3, 1972, for which the information was returned.
On October 12, 1976, the defendant filed a motion to dismiss the information based upon the bar of the statute of limitations (Ill. Rev. Stat. 1975, ch. 38, par. 3-5). The State did not amend its information, nor did the State file any additional pleadings with respect to the issue of limitations raised in defendant's motion to dismiss. Thereafter, the trial court denied defendant's motion to dismiss the information. Defendant renewed his motion to dismiss the information in his post-trial motion for a new trial. This motion was again denied by the trial court.
Defendant's first argument is that the information should be dismissed because the prosecution was not commenced within three years of the time the offense allegedly occurred and the State failed to allege facts in the information which would extend the limitation period beyond the three years.
• 1 Defendant's crime of indecent liberties with a child allegedly occurred on March 3, 1972, but the complaining witness did not notify the police until January 29, 1976. The information was issued after a hearing on May 13, 1976. The applicable general limitations statute (Ill. Rev. Stat. 1975, ch. 38, par. 3-5(b)) provides that prosecution for a felony must be commenced within three years after its commission, unless the statute which describes the offense provides otherwise or the period of limitations is extended by section 3-6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3-6). Section 11-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-4), which describes the offense of indecent liberties with a child, does not contain a separate period of limitations which would extend the limitation period beyond the statutory three-year period for this felony. In addition, this crime was easily discoverable if Kavadas had reported it immediately to the authorities. However, Kavadas did not do so, and because of that, section 3-6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3-6), which extends the period of limitations for offenses which are difficult to discover, will not operate to extend the period of limitations in this instance.
On appeal, the State contends the trial court properly denied defendant's motion to dismiss the information in light of the recent changes in Illinois law, which, they contend, changed the requirement that the State allege an exception to the statute of limitations in the charging document. The State argues that the recent decisions of the Illinois Supreme Court in People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437, and People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456, indicate a shift by the supreme court away from a formalistic ritual interpretation of charging documents towards an approach more compatible with the realities of today's criminal practice. We disagree.
People v. Pujoue is inapplicable to the present factual situation because in Pujoue the sufficiency of the complaint was attacked for the first time on appeal. The supreme court found that where an information or indictment is "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 * * *." (61 Ill.2d 335, 339.) Likewise, in People v. Gilmore, the sufficiency of the informations and indictments were attacked for the first time on appeal. The supreme court held that an information or indictment is sufficient when attacked for the first time on appeal where the charging document properly apprised the defendant "of the precise offense charged with sufficient specificity [to enable him] to prepare a defense, or, * * * to know without question the precise charge" of which he is accused. 63 Ill.2d 23, 30.
• 2 Neither Pujoue nor Gilmore are dispositive of the case at bar. The charging documents in Pujoue and Gilmore were challenged for the first time on appeal. In our case a timely pretrial motion pursuant to section 114-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-1) and a timely motion for a new trial pursuant to section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 116-1) were filed by the defendant. The trial court's denial of these motions constitutes reversible error. Thus, although the supreme court in Pujoue and Gilmore has somewhat relaxed the requirements for the sufficiency of informations and indictments when attacked for the first time on appeal, the supreme court has not diminished the prosecution's required responsibility that its charging documents state an offense or be subject to dismissal on a proper pretrial motion pursuant to section 114-1 of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1975, ch. 38, par. 114-1.
• 3, 4 It has been the law in Illinois for over 100 years that when an indictment or information discloses on its face that the offense charged is barred by the statute of limitations, such information is totally insufficient at law. (People v. Rhodes (1923), 308 Ill. 146, 139 N.E. 53; People v. Hallberg (1913), 259 Ill. 502, 102 N.E. 1005; Garrison v. The People (1877), 87 Ill. 96.) In addition, this court specifically found in ...