Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Ford County,
the Hon. William Roberts, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This appeal presents two questions for resolution: Must a one-count information captioned "Reckless Homicide" set forth the element of recklessness in the body of the information? If so, must a challenge to an information which does not allege recklessness be sustained pursuant to People v. Lutz (1978), 73 Ill.2d 204, when raised for the first time in a timely motion in arrest of judgment?
An information filed against the defendant, Robert H. Smith, charged:
"That on the 26th day of July, 1981, in [Ford] County, Robert Smith AKA Snyder committed the offense of Reckless Homicide, in violation of Section 9-3, Chapter 38, Illinois Revised Statutes, in that above defendant did unintentionally kill an individual without lawful justification by committing an act which was likely to cause death or great bodily harm to an individual, said act consisting in the driving of a motor vehicle at an excessive rate of speed resulting in a crash which resulted in the death of Christopher Gulliford Age 22 of Gibson City, said act occurring within the Corporate limits of the City of Gibson Ford County, Illinois."
At trial, counsel for the defendant did not present an opening or closing statement and offered no witnesses or evidence. At the jury-instruction conference, defense counsel's motion to strike all references to recklessness in the instructions offered by the State was denied. However, his tendered instructions concerning speeding and failure to reduce speed to avoid an accident were accepted on the theory that these were lesser-included offenses of reckless homicide.
The jury found defendant guilty of both reckless homicide and failure to reduce speed to avoid an accident. Defendant thereupon filed a motion in arrest of judgment, asserting for the first time that the information failed to charge reckless homicide because it did not allege that he acted recklessly. The trial judge denied the motion and sentenced him for the offense of reckless homicide. The trial judge also entered a judgment of guilty of failure to reduce speed but imposed no sentence for that offense. The appellate court, with one judge dissenting, reversed the conviction of reckless homicide and remanded the cause for sentencing for failure to reduce speed. (112 Ill. App.3d 1033.) We granted the State's petition for leave to appeal; in this appeal the defendant does not seek a reversal of his conviction for failure to reduce speed, but requests merely that we affirm the appellate court.
A defendant has the fundamental right, under both the Federal (U.S. Const., amend. VI) and State constitutions (Ill. Const. 1970, art. I, sec. 8), to be informed of "the nature and cause" of criminal accusations made against him. In Illinois this general right is given substance by section 111-3 of the Code of Criminal Procedure of 1963, which states:
"Form of Charge. (a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty." (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(a).)
Accordingly, it is not sufficient for an information merely to set forth the name of an offense and cite the statute which defines it as an offense; it must set forth in addition the nature and elements of the offense. (E.g., People v. Pujoue (1975), 61 Ill.2d 335, 338; People v. Sirinsky (1970), 47 Ill.2d 183.) The statute is phrased conjunctively, and in mandatory language: it requires substantial compliance with each of the five steps it enumerates. While the cases in this State have stopped short of requiring absolute compliance with each step, they nonetheless require that a charging instrument give notice of the elements of a charge and particularize it sufficiently with allegations of the essential facts to enable the accused to prepare a defense which, if successful, would bar further prosecution for the same offense. (People v. Hall (1982), 96 Ill.2d 315; People v. Heard (1970), 47 Ill.2d 501; People v. Shelton (1969), 42 Ill.2d 490.) This requirement may be satisfied by proper allegations in the body of the charging instrument even when they vary from the statement of the offense in its caption. (People v. Sirinsky (1970), 47 Ill.2d 183, 187; People v. Sellers ...