APPEAL from the Circuit Court of Jefferson County; the Hon.
LEHMAN D. KRAUSE, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with theft of an automobile having a value in excess of $150, in violation of section 16-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)). Following a jury trial, defendant was convicted as charged and sentenced to five years imprisonment. He appeals, contending that (1) the trial court improperly granted the State leave to amend the information during its case in chief to conform to the proof that the owner of the automobile alleged to have been stolen was an individual rather than a corporation, as alleged; and (2) his sentence was excessive.
The facts are largely undisputed. The incident in question occurred in the late evening of December 31, 1978, and the early morning of January 1, 1979. That evening defendant, his brother Larry, and David Artis, who testified for the State, drove around the Mt. Vernon area drinking beer in defendant's brown Plymouth Duster. Between 1:30 and 2, they drove to Family Car & Truck Sales at the corner of Tenth and Vaught Streets. There, Larry Mick produced the ignition key to a 1973 Malibu. Artis unlocked the Malibu, started it, and drove it from the lot. Larry Mick was a passenger in the Malibu while defendant remained in the Duster.
They drove around Mt. Vernon together, stopping once so the defendant could put gasoline in the tank of the Malibu from a can defendant carried in the trunk of the Duster. The two cars drove east out of Mt. Vernon on Illinois Route 15, and defendant, in his car, was in the lead. When defendant neared the intersection of Route 15 and the Bluford road, he indicated a right turn. Artis, in the Malibu, attempted to pass the Duster; however the Duster turned left, not right, and the two cars collided. When the cars stopped, all three men got out. They started the stalled Duster and drove toward Bluford, but a flat tire forced them to stop.
Trooper David Turner testified that when he arrived, he found the Malibu, with its right side damaged, and the Duster both unoccupied. A passing motorist who had given the three men a ride dropped them off at the Duster soon afterward.
The original information in this cause alleged that the Malibu was the property of "Family Car & Truck Sales, Inc." At trial, however, Mr. Arch Tenhaeff testified for the State that he was the owner of Family Car & Truck Sales, and that its proper name did not include "Inc." According to Mr. Tenhaeff, the Malibu was titled in the name of Family Car & Truck Sales.
After Mr. Tenhaeff testified to the above facts, and before the State completed its case in chief, the State's Attorney moved to amend the information to conform to the proof by alleging "Family Car & Truck Sales, a sole proprietorship owned by Arch Tenhaeff" to be the owner of the Malibu. The motion was allowed over objection and an amended information was filed.
Defendant did not testify, and he called no witnesses in his own behalf.
Defendant argues on appeal that the proof adduced as to the ownership of the Malibu revealed a substantive defect in the information which could not be corrected under section 111-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111-5). That section provides that an indictment, information, or complaint "shall not be dismissed and may be amended on motion by the State's Attorney or defendant at any time because of formal defects * * *."
Before the merits of the issue are considered, it is necessary to address the State's contention that this issue has been waived by defendant because of his failure to file a post-trial motion. Relying on People v. Billingsley (1966), 67 Ill. App.2d 292, 213 N.E.2d 765, defendant contends that the error committed by the trial court cannot be waived. In Billingsley, the information was defective because it failed to allege the intent requisite to establish the offense charged.
1 Failure to raise an issue in a post-trial motion results in the waiver of the issue unless it constitutes plain error. (People v. Meeks (1978), 59 Ill. App.3d 521, 375 N.E.2d 1001.) However, the court in People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437, permitted a complaint to be attacked for the first time on appeal; therefore, we conclude that defendant did not waive the issue by failing to file a post-trial motion.
It is conceded that the allegation in the original information that the Malibu's owner was "Family Car & Truck Sales, Inc." was incorrect. The position taken by each of the parties requires that we determine whether or not the error was a formal defect which may be amended any time under section 111-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 111-5). The State does not contend that the error falls within one of the categories listed in section 111-5 but urges that list is not intended to be exclusive. We agree. The Illinois Supreme Court expressly so held in People v. Jones (1973), 53 Ill.2d 460, 292 N.E.2d 361.
Defendant concedes that certain amendments to the allegation of ownership in an information are permissible; however, he maintains that where the proof disclosed an owner other than the one alleged in the information, the trial court was required to enter judgment for defendant rather than permit the State's amendment.
Unless an information sets forth the elements of the offense charged, the court may order its dismissal. (Ill. Rev. Stat. 1977, ch. 38, pars. 111-3(a), 114-1(a)(8).) Further, proof that someone other than defendant owns the allegedly stolen property is an essential element of the ...