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People v. Lee

OPINION FILED FEBRUARY 23, 1978.

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

v.

RUSSELL LEE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. JAMES FITZGERALD, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

In September 1975 the grand jury of Du Page County returned two indictments against defendant, Russell Lee, the first charging him with two counts of bribery and one count of official misconduct and the second charging him with one count each of bribery and official misconduct. On defendant's motions the trial court dismissed both indictments on the ground that they did not sufficiently state the nature and cause of the offenses sought to be charged and were too indefinite and uncertain as to the times and places of such offenses. The two causes have been consolidated for purposes of this appeal which the State brings from the orders of dismissal.

Count I of the first indictment, returned September 19, 1975, charges in pertinent part that:

"* * * from on or about the 1st day of January, A.D., 1973, to on or about the 30th day of April, A.D., 1973, at and within Du Page County, Illinois, RUSSELL LEE committed the offense of BRIBERY in that he did retain an amount of United States Currency received from CRAIG A. BRAUN which he is not authorized by law to accept, knowing that said money was tendered with the intent to influence the performance of an act related to the employment of RUSSELL LEE, a police officer and public employee, being the placement of CRAIG A. BRAUN'S name on the DuPage County Sheriff's Office towing list, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 33-1(d), * * *."

Count III of this indictment also charges defendant with the offense of bribery, using substantially the same language, except that the offense allegedly occurred from on or about January 1, 1973, to on or about December 31, 1974, and the specific act alleged was "the granting of DuPage County Sheriff's Office towing business to CRAIG A. BRAUN." Finally, count II of this indictment charges in pertinent part that:

"* * * from on or about the 1st day of January, A.D., 1973, to on or about the 30th day of April, A.D., 1973, at and within Du Page County, Illinois, RUSSELL LEE committed the offense of OFFICIAL MISCONDUCT in that RUSSELL LEE, a public employee acting in his official capacity knowingly accepted a fee from CRAIG A. BRAUN for the performance of an act which he knows is not authorized by law in that he did retain an amount of United States Currency received from CRAIG A. BRAUN which he is not authorized by law to accept, knowing that said money was tendered with the intent to influence the performance of an act related to the employment of RUSSELL LEE, a police officer and public employee, being the placement of CRAIG A. BRAUN'S name on the Du Page County Sheriff's Office towing list, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 33-3(d) * * *."

The second indictment, returned September 25, 1975, charges defendant in count I with having committed the offense of bribery in substantially the same language as the bribery counts in the first indictment except that the offense allegedly occurred on or about January 1, 1973, to on or about August 1, 1975, the person defendant allegedly retained the money from was Robert A. Qualkenbush, and the act involved was "the granting of DuPage County Sheriff's Office towing business" to Qualkenbush. Count II of this second indictment charged defendant with the offense of official misconduct in terms similar to that charged in the first indictment except that the date was stated as from on or about January 1, 1973, to on or about August 1, 1975, the person defendant allegedly retained the fee from was Qualkenbush, and the act involved was "the granting of DuPage County Sheriff's Office towing business" to Qualkenbush.

Before moving to dismiss the indictments as insufficient and indefinite, defendant sought further, more specific, information regarding the charges by both a discovery motion and a demand for a bill of particulars. The State responded by furnishing to defendant all investigative reports of this matter together with transcripts of the testimony before the grand jury of Craig A. Braun and Robert A. Qualkenbush, the persons named in the indictments as having given money as bribes to defendant. The transcripts reflected thorough examinations of these witnesses in which the specific times and places when sums of money allegedly given by them to defendant were sought to be ascertained. It would appear that there was a continuing relationship between each witness and defendant during the time intervals alleged in the indictments during which it was stated they met at various places within Du Page County for financial transactions. The testimony of these witnesses before the grand jury, as reflected in the transcripts provided to defendant, was not specific as to exact locations or dates of each such meeting but generally did demonstrate a claim of an ongoing relationship between these parties for these purposes. In its bills of particulars, the State referred to the transcripts of the testimony of the witnesses, which we have described, stating it was unable to provide any particulars more definite and certain as to the specific times and places of the alleged offense charged in each count of the indictments than that shown by the transcripts. The State thus tendered to defendant the transcripts as its bills of particulars in this case.

The trial court seemed to be of the opinion that the State had furnished defendant all the particulars available to it regarding the specific dates and times of the various transactions claimed by the witnesses to have occurred, but because that still left the indictments too indefinite and uncertain, they must be dismissed and it did so.

The State contends on appeal that the indictments do sufficiently set forth the nature and elements as well as the date and county of the offense charged in each count, as is required by law, while defendant contends, first, that they are too indefinite as to when the alleged offenses occurred and, secondly, that they are vague and uncertain as to the number of offenses alleged by each count to have been committed.

In approaching the issues raised in this case we will first note that there is no relationship between the legal sufficiency of an indictment and a bill of particulars supplementing the allegations of an indictment to aid defendant in better understanding the charge he must defend against. The purpose of a bill of particulars "is to provide more specificity of detail to supplement a sufficient indictment so as to enable an accused better to understand the nature of the charge against him or better to prepare his defense" (People v. Patrick (1967), 38 Ill.2d 255, 260, 230 N.E.2d 843, 846) and not to cure a void indictment (People v. Tyler (1977), 45 Ill. App.3d 111, 115, 359 N.E.2d 240, 243). The bill of particulars cannot supply deficiencies in the allegations of an indictment which must stand on its own terms. We will consider the indictments here in this light.

• 1 It is well established that due process requires that an indictment or information must apprise the defendant of the nature and cause of the offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar to future prosecution arising out of the same conduct. (People v. Gilmore (1976), 63 Ill.2d 23, 344 N.E.2d 456; People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437; People v. Tyler (1977), 45 Ill. App.3d 111, 359 N.E.2d 240.) Accordingly, section 111-3 of the Code of Criminal Procedure of 1963 states, in part, that "(a) A charge shall be in writing and allege the commission of an offense by: * * * (3) Setting forth the nature and elements of the offense charged; * * *." (Ill. Rev. Stat. 1973, ch. 38, par. 111-3.) Section 114-1 relates to section 111-3 by providing that "(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds: * * * (8) The charge does not state an offense; * * *." Ill. Rev. Stat. 1973, ch. 38, par. 114-1.

• 2 Section 33-1 of the Criminal Code of 1961 provides, in part, that "[a] person commits bribery when: * * * (d) He * * * retains * * * any property * * * which he is not authorized by law to accept knowing that such property * * * was * * * tendered with intent to cause him to influence the performance of any act related to the employment * * * of any public officer [or] public employee * * *." (Ill. Rev. Stat. 1973, ch. 38, par. 33-1.) Section 33-3 of the Code provides, in part, that "[a] public officer or employee commits misconduct when, in his official capacity, he * * * (d) * * * knowingly accepts for the performance of any act a fee * * * which he knows is not authorized by law." Ill. Rev. Stat. 1973, ch. 38, par. 33-3.

It is apparent that the present indictments are framed substantially in the language of these statutes. The bribery counts set out above charge that defendant "committed the offense of BRIBERY in that he did retain [property] which he is not authorized by law to accept, knowing that [such property] was tendered with the intent to influence the performance of an act related to the employment of * * * a police officer and public employee * * *." The official misconduct charges state that defendant "committed the offense of OFFICIAL MISCONDUCT in that * * * a public employee acting in his official capacity knowingly accepted a fee * * * for the performance of an act which he knows is not authorized by law * * *." In addition to being framed in the language of the statute, each count of the indictments specifically sets forth certain particulars of the charge involved. The three bribery counts particularly charge defendant with retaining United States currency received from two named individuals in Du Page County at times within the applicable statute of limitations period (see Ill. Rev. Stat. 1973, ch. 38, par. 3-5) for the purposes of placing each of their names on the sheriff's office towing list and granting sheriff's office towing business to them. The two official misconduct counts particularly charge defendant with accepting United States currency from two named individuals in Du Page County, at a time within the statute of limitations, for the performance of the acts of ...


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