APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
A. SULLIVAN, Judge, presiding.
MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:
Defendant, Albert Reed, was arrested on March 28, 1976 and was charged by complaint with the offense of unlawful use of weapons in violation of section 24-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1976 Supp., ch. 38, par. 24-1(a)(4)). Specifically, the original complaint alleged as follows:
"That Albert Reed has on or about 28 March 76, at 6255 S. May, Cook County, Illinois, committed the offense of unlawful use of weapons in that he knowingly carried concealed on his person a firearm to-wit: .38 caliber revolver charter arms serial number #183903 in violation of Chapter 38, Section 24-1(a)(4), Ill. Rev. Stat."
On the date of trial, after both parties answered ready for trial, the State made a motion to amend its complaint. Over the objections of defense counsel, the trial court stating that "it certainly does not take the defendant by surprise," allowed the State to amend its complaint to read as follows:
"That Albert Reed has on or about 28 March 76, at 6255 S. May, Cook County, Illinois, committed the offense of unlawful use of weapons in that he knowingly carried a loaded firearm to-wit: .38 caliber revolver charter arms serial number #183903 not on his own fixed place of business or abode or his own land, while within the corporate limits of the City of Chicago in violation of Chapter 38, Sec. 24-1(a)(10), Ill. Rev. Stat."
The defendant did not ask for a continuance, waived trial by jury and entered a plea of not guilty. The court found the defendant guilty as charged in the amended complaint and sentenced him to a term of nine months in the custody of the Illinois Department of Corrections.
On this appeal, the defendant presents as the sole issue his contention that the trial court abused its discretion by improperly allowing a substantive amendment of the original complaint in open court, prior to trial, over his timely objection.
Officer White of the Chicago Police Department testified that on March 28, 1976, at approximately 9 p.m., he and his partner, Officer Moore, were on routine patrol when they noticed 12 or 13 people gathered together on the corner of 6255 S. May, in Chicago. Officer White also observed two men backing northbound on the west side of the street with their hands in the air. At the same time, he observed a man who he later identified as the defendant, standing with a pistol in his hand facing the men with their hands up. Officer White testified that he then pulled over, alighted from his squad car, and pursued the defendant on foot for approximately 50 feet, whereupon he apprehended the defendant at the door of a tavern. Subsequently, Officer White retrieved the weapon from the defendant and found it to be loaded with five rounds of ammunition.
On cross-examination, defense counsel elicited testimony from Officer White to the effect that he and his partner had described the pistol they retrieved from the defendant as an "object" in both the arrest report and case report filled out subsequent to the arrest. At trial, Officer White testified that he knew that this object was a gun from the moment he first saw it in the defendant's hand.
Defendant, Albert Reed, and defense witnesses Robert Walker and Diane Walker all testified that they were standing outside the tavern talking, but that there were two men arguing outside the tavern when the police pulled up in their patrol car. They, along with 12 or 15 other people who were standing outside the tavern, were told to "get up on the wall" by Officer White. Everyone was searched by Officer White; no pistol, revolver or weapon of any kind was recovered from the defendant or anyone else at the scene. These witnesses testified further that Officer White then entered the tavern, came back with a revolver in his hand and asked "whose pistol is this"? Since the defendant was closest to the door of the tavern at that time, he was handcuffed by Officer White.
Following his conviction, the defendant filed a motion for a new trial stating eight allegations of error, none of which made reference to the trial court's alleged abuse of discretion in allowing the State to amend the complaint. Section 615(a) of the Illinois Supreme Court Rules (Ill. Rev. Stat. 1975, ch. 110A, par. 615(a)), provides however, that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Our supreme court further expounded upon this rule in People v. Burson (1957), 11 Ill.2d 360, 370, 143 N.E.2d 239, wherein it stated:
"* * * `The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.' * * *"
In this regard, our supreme court also enunciated a rule in People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856, that the failure by a defendant to raise an issue in a written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review. The court specified that this waiver rule applies to constitutional questions as well as to other issues. In discussing Rule 615(a), the court stated at page 282, "* * * This rule does not mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court. * * *"
In the case at bar, the State contends that there were no allegations of error nor were there in fact any plain errors or defects affecting substantial rights, and that accordingly this court need not reach the issue now raised by the defendant on appeal. Thus, while it is not necessary for us to do so, a careful examination of the defendant's contention would disclose that it ...