APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
523 N.E.2d 684, 169 Ill. App. 3d 232, 119 Ill. Dec. 928 1988.IL.733
Appeal from the Circuit Court of Madison County; the Hon. Charles Romani, Judge, presiding.
JUSTICE LEWIS delivered the opinion of the court. KARNS and LEWIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS
On December 19, 1984, a 46-count indictment was filed in the circuit court of Madison County charging defendant, Gerald Bassett, with official misconduct, bribery, and conspiracy. Defendant was tried before a jury and was ultimately convicted of 10 counts of official misconduct and two counts of conspiracy.
Prior to sentencing defendant filed a motion in arrest of judgment, arguing that the counts of the indictment upon which he was convicted failed to charge an offense; that the "count convicting [ sic ] [him] of conspiracy to commit official misconduct, being the inchoate offense, should be dismissed because of the conviction of the defendant on the substantive counts of official misconduct"; and that his conspiracy to commit bribery conviction should be vacated as "inconsistent factually and legally with verdicts of not guilty as to the substantive offenses of bribery."
The trial court granted defendant's motion in part, vacating the "judgment of guilty as to Count I" and vacating the "verdict as to Count II." The court denied defendant's motion as it pertained to the 10
Defendant appeals the official misconduct convictions, claiming that the indictment did not properly charge the offenses and that the evidence at trial was insufficient to prove him guilty beyond a reasonable doubt.
The counts charging official misconduct were substantially similar in their factual allegations. Each count charged that James Barton, a public officer, and Gerald Bassett, a public employee, committed the offense of official misconduct in that
"Barton, as Supervisor of Assessments for Madison County, Illinois, and Bassett, as a Deputy Assessor for Madison County, Illinoiswith intent to obtain a personal advantage for [another], performed in their official capacity an act in excess of their lawful authority in that they caused the reduction in the 1982 real estate tax assessment . . . on a parcel of property [in which another had an interest] . . . and which assessment had been certified as correct by James Barton on or about July 14, 1982and which reduction was not pursuant to a hearing or official action by the Madison County Board of Review."
Following presentation of the State's case, the prosecutor moved to amend the indictment, deleting, inter alia, the phrase "or official action" from the counts now on appeal.
In order to properly charge official misconduct under subsection (c) of section 33-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 33-3(c)), the State must allege that a public officer or employee, in his official capacity and with intent to obtain a personal advantage for himself or another, knowingly performed an act in excess of his lawful authority. Cases interpreting this section have held that the indictment must specify facts indicating a violation of a statute, rule, regulation or tenet so as to demonstrate how a defendant exceeded his lawful authority. (People v. Weber (1985), 133 Ill. App. 3d 686, 689, 479 N.E.2d 382, 384; People v. Samel (1983), 115 Ill. App. 3d 905, 911, 451 N.E.2d 892, 896.) The indictment must allege, at a minimum, facts which would show that defendant violated an identifiable statute, rule, regulation or tenet.
If the charging instrument fails to set forth the elements of the offense, then a motion in arrest of judgment, if made, must be granted by the trial court. (People v. Lutz (1978), 73 Ill. 2d 204, 212, 383 N.E.2d 171, 173-74; People v. Sherman (1982), 110 Ill. App. 3d 854, 858, 441 N.E.2d 896, 899.) Defendant's challenge must be sustained even without a showing that the defect in the indictment prejudiced the defense. People v. Smith (1984), ...