APPEAL from the Circuit Court of Pike County; the Hon. GUY R.
WILLIAMS, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Pike County, defendants Coy Meeks, Ronald Musso, and Donald Schuld, Jr., were each convicted of burglary. Meeks was sentenced to a term of 3 to 11 years' imprisonment. Musso and Schuld were each sentenced to a term of 2 to 8 years' imprisonment. On appeal, defendants raise questions concerning (a) the sufficiency of the information with which they were charged, (b) the sufficiency of the evidence to convict, (c) the correctness of rulings by the trial court denying their pretrial motions to quash a search warrant, to suppress evidence and requesting separate trials, (d) the admissibility of evidence offered by the State, and (e) the cross-examination of a prosecution witness.
The defendants were charged in a single-count information with burglary in that they, without authority, knowingly entered a railroad car, the property of Norfolk & Western Railroad Company, Inc., a Virginia corporation, with the intent therein to commit a theft. Each defendant entered a plea of not guilty to the charge. On the date of trial, prior to impaneling the jury, the trial judge, in his chambers, alerted the parties to the fact that the information did not, in its body, name the defendants as the alleged perpetrators of the offense. The State's Attorney immediately moved that the information be amended by inserting the names of the three defendants thereon. Counsel for the defendants objected to the timeliness of the amendment. The trial court permitted the amendment.
On appeal, defendants contend that the trial court acted improperly in suggesting that the information be amended. Defendants further maintain that it was error to proceed to trial upon the amended information, it not having been reverified nor resworn to and they not having entered a plea thereto.
1, 2 The original information named the three defendants in its caption but did not name them in the body of the charge. The amendment suggested by the court added their names to the body of the charge as well. The amendment neither added a new offense nor changed the particulars of the offense charged. Obviously, the defendants already knew that they were charged with the offense. Defendants did not cite this point as error in their lengthy post-trial motion. The failure to do so waived the point (People v. Rogers (1975), 32 Ill. App.3d 788, 336 N.E.2d 784) unless it constituted plain error (People v. Jones (1976), 40 Ill. App.3d 771, 353 N.E.2d 79). Under the circumstances, the suggestion by the court was clearly not plain error.
3 Similarly, the defendants' right to a reverification of the information as amended was waived by their proceeding to trial without specifically objecting thereto. People v. Bradford (1975), 62 Ill.2d 21, 338 N.E.2d 182.
In support of their contention that error occurred because they were not required to plead anew to the amended charge, the defendants cite the statement in People v. Evenow (1934), 355 Ill. 451, 189 N.E. 368, that the entry of a plea is mandatory and the decision in People v. Moore (1959), 21 Ill. App.2d 9, 157 N.E.2d 94.
In Moore, the information was amended during trial without a new plea being entered. On appeal, the court reversed the defendant's conviction, ruling that the amendment caused the defendant to be charged with a different offense from that originally charged and that therefore, the amended information should have been reverified and a new plea entered thereon. The court also noted that the defendant had objected to the amendment and had not been furnished with a copy of the amended information.
In People v. Clarke (1950), 407 Ill. 353, 358, 95 N.E.2d 425, 428, relied upon by the State, the supreme court ruled that "if the amendment [to the information] involves no material change in the averments of the original, the original information is not abandoned and trial may be had upon it as amended, without a renewal of the formalities originally observed." Subsequent cases have held that where the charge in the amended complaint is substantially the same as that in the original, a new plea is unnecessary (People v. Robinson (1974), 20 Ill. App.3d 152, 313 N.E.2d 213).
4 Here defendants had entered a plea of not guilty to the original information. They had been furnished a copy thereof and clearly were aware that they were the individuals charged therein. As previously discussed, the amendment to the information made no material change in the offenses charged. Therefore, a new plea to the amended information was not required.
The evidence supporting the convictions of the defendants was circumstantial. The State's case rested heavily upon the testimony of Charles T. McGuinty, a special agent for the Norfolk & Western Railroad, and Earl McFeeters, an Illinois State trooper. The substance of McGuinty's testimony was as follows: On September 10, 1976, he proceeded to Hadley, Illinois, to inspect train TC-1 which had stopped there due to its having improperly passed through a switch. Upon arriving and inspecting the train, he observed that the seal and the security clamp on car #56486, which contained a tobacco shipment, were missing. These devices were generally used to secure a car until arrival at its designated destination. While further investigating, he discovered cases of cigarettes stacked near a right-of-way fence a short distance from the unsecured railroad car. Upon this discovery, he radioed for assistance. This was at approximately 11:35 p.m.
While waiting for aid, McGuinty observed a dark colored, late model pickup truck with a white camper shell and a third headlight mounted on the front bumper between the other two headlights proceeding on the road near to where he was waiting on the railroad tracks. The time was approximately 12:35 a.m. This vehicle traveled a short distance beyond the railroad tracks, abruptly stopped, and then sped off at a high rate of speed following one or two subjects having entered it. These subjects had emerged from the weeds on the side of the road where the cases of cigarettes were stacked.
Upon the arrival of Trooper McFeeters, the two of them proceeded to where McGuinty had seen the individuals alight to the stopped truck, observed a path leading through a farm field back in the direction of the stacked cigarette cases and, upon coming upon the cases, found approximately 37 cases of tobacco products stacked in two locations near to each other.
Later upon returning to the crossing where the tracks crossed the road, McGuinty observed the same pickup truck which he had seen previously that night approaching. McFeeters stopped the vehicle which defendant Meeks was driving and containing defendants Musso and Schuld as passengers, advised the defendants of their rights, questioned each ...