People v. Jones , 4 Ill. App. 3d 870 ( 1972 )

Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was indicted for armed robbery, the indictment charging that he and another took an indeterminate amount of currency from the person and presence of one Charles Mundy. On the morning of trial, over objection by the defendant, the court allowed the prosecution to amend the indictment changing the alleged victim from “Charles Mundy” to “Delbert R. Mundy”. The record indicates that Charles Mundy and Delbert R. Mundy are two different persons, Charles being Delbert’s adult son. The basis for the defendant’s objection was that the amendment deprived him of his constitutional right to indictment by grand jury. The defendant persisted in his objection at all stages in the trial and at a motion for a new trial. A jury trial resulted in a verdict of guilty of the offense charged in the amended indictment and the court sentenced the defendant to a term of not less than 8 nor more than 24 years in prison. This appeal is from that conviction and sentence.

The only issue in this case is whether or not an indictment for armed robbery may be amended in the manner indicated changing the identity of the victim from one person to another, although both bear the same surname.

Section 111 — 2, ch. 38, Ill. Rev. Stat. 1969, implements the constitutional right to grand jury indictment by providing that all prosecutions for felonies shall be by indictment unless indictment is waived. At common law and historically in this State, an indictment returned by a grand jury could not be amended except by grand jury action. (Patrick v. People, 132 Ill. 529, 24 N.E. 619.)

Section 111 — 5, ch. 38, Ill. Rev. Stat. 1969, is, as we noted in People v. Hall, 55 Ill.App.2d 255, 204 N.E.2d 473, a legislative effort to break away from the strict formalism of the common law and to permit of amendment where formal as distinguished from substantive defects in indictments are involved. This statute provides for amendment because of formal defects and enumerates six instances wherein amendment is permitted. None of the six is applicable to the facts in this case. Sub-paragraph (a) of the section does permit of amendment to correct any miswriting or misspelling or grammatical error. The committee comments with reference to section 111 — 5 notes that it was the intent that this section to permit of amendment to cure formal defects as distinguished from substantive ones, such as failure to charge a crime. The legislative enactment was described as one provided for efficient amendment of formal defects. Thus, if the amendment is a matter of formality, it is permissible; if it is a matter of substance, it is not.

Section 1877, Wharton’s Criminal Procedure, states as follows:

“Under the rule precluding amendments of indictments in matters of substance, an indictment cannot be amended in order to permit a trial upon a crime not charged by the grand jury or to supply the omission of an allegation, proof of which is necessory to a conviction and without which the indictment is fatally defective * * *. It is the

general rule, too, that the amendment of an indictment by substituting therein the name of another person as the one injured, when working a change of identity, is an amendment in substance which the courts are not authorized to make.”

In this case, the amendment did not merely correct a misspelling or other defect in the name of the victim but it actually changed the victim’s identity.

Some of the Illinois cases discussing the amendment process permit of amendment under certain circumstances. Thus, in Hall, this court held that it was permissible to amend an indictment to state the correct section of the criminal code allegedly violated. Such was deemed to be a formal defect. In People v. Nelson, 17 Ill.2d 509, 162 N.E.2d 390, the court permitted an amendment to correct a misspelling of a name. The victim before and after amendment was one and the same person and phonetically the name was the same. Likewise, in People v. Jankowski, 391 Ill. 298, 63 N.E.2d 362, while not strictly an amendment matter, the court indicated that a variance between “Catherine Valenta” and “Katherine Balenta” was not substantial within the contemplation of a variance between identity of a victim charged in the indictment and proof produced at the trial.

While there is no specific Illinois authority on the exact issue before us, the annotation at 14 A.L.R.Sd 388, sec. 7, collects the cases. The scope of permissible amendment turns on the statutory authorization for amendment. However, it appears to us that the distinction between formal or substantive defect is maintained. See State v. Gould, 229 Ind. 288, 98 N.E.2d 184, and Dye v. Sacks, 173 O.St. 422, 183 N.E.2d 380.

In State v. Sims, 154 La. 907, 98 So. 415, the defendant was indicted for shooting at one “H. O. Jeff”. A motion was made to amend the indictment by substituting the name of “Charlie Clark” as the victim. Over defendant’s objection, the court allowed the amendment. Upon appeal this was reversed. This was under a statute permitting of amendment if such was not material to the matters of the case.

While we recognize the desirability of departing from the rather strict prohibition against amendment of indictments, we must recognize the limitations that now exist in the Illinois statute permitting of amendment to correct formal defects only. When, as here, the indictment is amended to change the name of the victim from one person to another entirely different person, such is more than correcting a formal defect. It is a matter of substance and it is not within the scope of section 111 — 5 of ch. 38, Ill. Rev. Stat. 1969. The circuit court was in error in permitting the amendment and this case must be and is reversed.

Judgment reversed.

SIMKINS, J., concurs.