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People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

Appellate Court of Illinois, Second District.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Donald R. BRAUSAM, Defendant-Appellant.

Gen. No. 66-149 M.

 

June 14, 1967.

 

Prosecution for drag racing. From a judgment of conviction of the Circuit Court, Lake County, Eugene T. Daly, J., the defendant appealed. The Appellate Court, Davis, P.J., held that the defendant, who was charged under an unverified uniform traffic ticket and complaint, waived the failure to verify complaint by proceeding to trial without objection to form of complaint, and that the complaint, which merely charged defendant with drag racing in violation of specified statute and gave time and place of offense, was sufficiently precise to apprise accused of nature and elements of offense charged.

 

Affirmed.

Key Issues Decided:

Although code of criminal procedure requires that a complaint be verified in order to sustain a criminal prosecution, lack of verification does not affect jurisdiction of the court. S.H.A. ch. 38, par. 111-3(b).

The right to be charged by a properly verified complaint can be waived and is waived unless accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. S.H.A. ch. 38, par. 111-3(b).

Defendant charged with drag racing by an unverified uniform traffic ticket and complaint waived right to be tried upon a verified complaint where no pretrial motion was made and defendant proceeded to trial without objection to form of complaint. S.H.A. ch. 16, ‚§‚§ 81-85; ch. 38, ‚§ 111-3(b); ch. 95 1/2 , ‚§ 145.1; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, ‚§ 102.1, par. C.

Although defendant contended that complaint failed to set forth nature and elements of the offense charged as required by statute, reviewing court was required to decide only if complaint was so defective that it did not charge an offense, where that was issue raised by defendant’s motion in arrest of judgment. S.H.A. ch. 38, ‚§ 111-3(a).

The purpose of statute and constitutional provision requiring complaint to set forth nature and elements of offense charged is to make certain that accused will be adequately informed of nature and elements of offense charged against him so that he may prepare his defense and protect himself from double jeopardy. S.H.A. ch. 38, ⤠111-3(a); S.H.A.Const. art. 2, ⤠9.

Whether accused is adequately informed of nature and elements of the offense charged must be determined by substance of charge and not by mere technicalities of its language. S.H.A. ch. 38, ⤠111-3(a); S.H.A.Const. art. 2, ⤠9.

Statutory requirement that complaint set forth nature and elements of offense charged is met if indictment, information or complaint charges offense in language of statute when that statute sufficiently particularizes offense so that defendant is notified with reasonable certainty with what he is charged. S.H.A. ch. 38, ⤠111-3(a).

A charge solely in language of statute is insufficient only where statute does not describe acts which constitute crime or where by generality of statute it may embrace acts which statute does not intend to punish. S.H.A. ch. 38, ⤠111-3(a).

Legislative enactments providing procedures for getting persons into court without necessity and inconvenience of immediate arrest, and court rule implementing such procedures, being pari materia were to be construed together in determining intent of Legislature. S.H.A. ch. 38, ‚§‚§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, ‚§ 102.1, par. C.

Primary object of statutory construction is to ascertain and give effect to legislative intent, and court should consider reason or necessity for enactment, contemporaneous conditions, existing circumstances and object sought to be obtained by statute.

Court was required to presume that statutes and court rule relative to procedures for judicial processing of minor offenses related to one subject and were governed by one policy and spirit and that Legislature intended the several statutes and court rule to be consistent and harmonious. S.H.A. ch. 16, ‚§‚§ 81-85; ch. 38, ‚§‚§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, ‚§ 102.1, par. C.

Traffic ticket and complaint charging defendant with drag racing in violation of specified statute was sufficiently precise to apprise accused of nature and elements of offense charged. S.H.A. ch. 38, ⤠111-3(a), ch. 95 1/2 , ⤠145.1.

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors, where accused is brought into court by notice or summons, and without necessity of arrest, need not be set forth with the same technical precision required in an indictment, verified complaint or information. S.H.A. ch. 16, ‚§‚§ 81-85; ch. 38, ‚§‚§ 107-11, 107-12, 111-3(a, b).

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors must inform accused of nature and elements of the offense with which he is charged, but charge may be simply stated by reference to commonly used name for offense along with reference to statute or ordinance allegedly violated and time and place of violation. S.H.A. ch. 16, ‚§‚§ 81-85; ch. 38, ‚§‚§ 107-11, 107-12, 111-3(a, b).

If charge in traffic and other minor criminal cases sets forth nature and elements of offense charged against accused so that he may prepare his defense and be assured of constitutional privilege against double jeopardy statutory provision requiring that charge set forth nature and elements of offense has been complied with under informal procedure for traffic violations, quasi criminal cases and other misdemeanors. S.H.A. ch. 16, ‚§‚§ 81-85; ch. 38, ‚§‚§ 107-11, 107-12, 111-3(a, b).

Case:

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways.‚ ‚  (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

The charge against the defendant was initiated by an unverified ‚Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‚Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment *358 should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‚drag racing.’

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors,**536 does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

‚The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‚procedures for getting persons into court without*359 the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

‚In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

‚The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The *360 right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.‚ ‚  People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The **537 traffic ticket and complaint charged the defendant with committing the offense of ‚drag racing in violation of section 48.1 of the U.A.R.T., on July 25, 1966, at 9:35 P.M., at North Avenue-west of Trevor Rd. in Lake County, Illinois.’ (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

Section 111-3(a) of the Criminal Code (Ill.Rev.Stat.1965, ch. 38, par. 111-3(a)) sets forth the requisites for a valid criminal complaint:

‚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 time and place 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 *361 any name or description by which he can be identified with reasonable certainty.’

Defendant’s contention is that the requirements of sub-paragraph (3) above are not met, as the necessary element of racing or competition is not alleged.‚ ‚ In answering defendant’s contention, we must keep in mind that the question before this court is whether the complaint was so defective that it did not charge an offense.‚ ‚ That was the issue raised by defendant’s motion in arrest of judgment and it is all that we are called upon to decide.‚ ‚  People v. Blanchett, 33 Ill.2d 527, 530, 531, 212 N.E.2d 97 (1965).

The purpose of section 111-3(a) of the Criminal Code, as that of section 9 of Article II of the Illinois Constitution, S.H.A., is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense.‚ ‚  People v. Griffin, 36 Ill.2d 430, 432, 223 N.E.2d 158 (1967); People v. Peters, 10 Ill.2d 577, 580, 141 N.E.2d 9 (1957); People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967); People v. Laczny, 63 Ill.App.2d 324, 330, 331, 211 N.E.2d 438 (1965).‚ ‚ Whether this objective is attained and the requirements of the section met must be determined by the substance of the charge and not by mere technicalities of its language.‚ ‚  People v. Billingsley, 67 Ill.App.2d 292, 299, 213 N.E.2d 765 (1966). ‚It is clear that many of the old pleading technicalities are no longer required under the existing law. Centuries ago, the punishment was severe and the courts attempted to compensate by strictly construing the pleading requirements. The main requirement today is simplicity in order that the accused will understand the charge against him.’‚ ‚  People v. Blanchett, supra, 33 Ill.2d 532, 533, 212 N.E.2d 100.

*362It is sufficient for the purposes of section 111-3(a), and the safeguard it is designed to protect, that the indictment, information or complaint charge the offense in the language of the statute when that statute sufficiently particularizes the offense so that the defendant is notified with reasonable certainty with what he is charged.‚ ‚  People v. Sims, 393 Ill. 238, 241, 66 N.E.2d 86 (1946); People v. Billingsley, supra, 67 Ill.App.2d 298, 213 N.E.2d 765. It is only where the statute does not describe the acts which constitute the crime. ( People v. Griffin, supra, 36 Ill.2d 432, 433, 223 N.E.2d 158; People v. Green, 368 Ill. 242, 254, 255, 13 N.E.2d 278, 115 A.L.R. 348 (1938)), or where, by the generality of the statute it may embrace acts which the statute does not intend to punish, that a charge, solely in the language of the statute, is not sufficient.‚ ‚  People v. Peters, supra, 10 Ill.2d 580, 581, 141 N.E.2d 9; People v. Billingsley, supra, 67 Ill.App.2d 299, 213 N.E.2d 765.

**538 However, cases arising under the U.A.R.T., seldom come before reviewing courts.‚ ‚ Section 137 of the Act provides that it is a misdemeanor for any person to violate any of the provisions of the Act, unless by said Act, or other law of this State, such violations are declared to be a felony.‚ ‚  (Ill.Rev.Stat.1965, ch. 95 1/2, par. 234.) Ordinarily, the amount of the fine is small and the offense is not of a serious nature.‚ ‚ Such circumstance is true with reference to certain other misdemeanors and quasi-criminal offenses.

To expedite the handling of such cases, the Supreme Court adopted the Rule in question which sets forth the form of the ‚Illinois Uniform Traffic Ticket and Complaint’ and the Rule related generally to traffic cases, quasi-criminal cases and certain misdemeanors. Contemporaneously, the legislature provided ‚procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A. ch. 38, pars. 107-11, 107-12 Committee Comments.) It also designated officers to let persons charged with quasi-criminal offenses and misdemeanors to bail and to accept*363 and receipt for fines on pleas of guilty in minor offenses, in accordance with schedules established by Court Rule. (Ill.Rev.Stat.1965, ch. 16 pars. 81-85 incl.) The Court Rule which the legislature referred to was the Rule heretofore cited.

This Rule and these legislative enactments indicate that a less formal procedure is necessary in the handling of such minor offenses, whereby the person accused may get into court by the traffic ticket, notice to appear or by summons, and without the necessity of arrest. If the person does not obey the notice or summons, then an arrest warrant may issue.

The statement of the issue before us for decision, and the statutes and Court Rule involved, disclose that the overall legislation and Rule are not without ambiguity.‚ ‚ The legislative enactments and the Court Rule, being in pari materia, should be construed together to determine the intent of the legislature.‚ ‚ The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes.‚ ‚  People ex rel. Krapf v. Hayes, 13 Ill.2d 143, 147, 148 N.E.2d 428 (1958).‚ ‚ We must presume that the several statutes and the Court Rule relative to procedures for the judicial processing of minor offenses within the area herein defined, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes and the Court Rule to be consistent and harmonious.‚ ‚  Scofield v. Board of Education, 411 Ill. 11, 20, 103 N.E.2d 640 (1952); Ashton v. County of Cook, 384 Ill. 287, 298, 51 N.E.2d 161 (1943).

The population increase in Illinois over the past decade, a deeper understanding of the use of sanctions in law enforcement, and the increase in the use of automobiles over our improved highways in an effort to meet the *364 necessity for travel in our complex and growing society are, in part, the reason for getting persons into court without the necessity and inconvenience of an arrest, for letting persons charged with traffic violations, other misdemeanors and quasi-criminal offenses to bail, and for the informal receipting for fines on pleas of guilty in such minor offenses.

From the pertinent legislation and rule, we believe that the legislature intended to create, within our criminal procedure, an expeditious method for the enforcement of traffic offenses, misdemeanors and quasi-criminal offenses, which would relax the rigidity of the requirements of our criminal law for the convenience of the individual, without an impingement upon his rights and without sacrifice of the welfare of society generally. We believe that within the **539 area thus defined by these legislative enactments and the Court Rule, the legislative purpose should be effectuated; and that the principles of construction must not be too literal.

The complaint charged the defendant with ‚drag racing’ as heretofore specified. Under our construction of the aforesaid pertinent statutes and the Court Rule, we find that the charge was sufficiently precise to apprise the accused of the nature and elements of the offense charged. Section 48.1 of the statute clearly defines the meaning of ‚drag racing’ as used in the complaint, as follows:

‚For the purpose of this Section ‚drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State.’

*365 The charge of ‚drag racing’ does not include the multitude of different acts which would leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of ‚reckless driving.’‚ ‚  People v. Griffin, supra, 36 Ill.2d 431, 432, 223 N.E.2d 158; People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967) and cases cited therein. Under the ‚reckless driving’ charge, the nature and elements of the offense are left to doubt.

However, the offense of ‚drag racing’ as defined by the statute is not fragmented into many separate and different acts, any one of which may constitute the offense. The statute defines one total offense, the essence of which is the act of competing or racing on any street or highway. We believe that the charge as specified on the U.A.R.T. form clearly apprised the accused of the particular acts on which the charge was based. We hold that the traffic ticket and complaint was not so defective as to fail to charge an offense.

While a person accused of a traffic violation has every right to be informed of the nature and elements of the offense charged against him, we are not unmindful of the circumstances under which traffic tickets are normally issued, and we recognize that they are drafted by laymen and may not be drawn with the care and precision of an indictment, information or complaint charging a more serious offense.

The charge made on the Uniform Traffic Ticket and Complaint form and the charge in quasi-criminal cases and misdemeanors where the accused is brought into court by notice or summons-and without the necessity of arrest-need not be set forth with the same technical precision required in an indictment, verified complaint or information. The charge under the informal procedure for handling these minor offenses must inform the accused of the nature and elements of the offense with which he is charged, but the charge may *366 be simply stated by reference to the commonly used name for the offense, along with reference to the statute or ordinance alleged to have been violated and the time and place of the violation. If the charge stated sets forth the nature and elements of the offense charged against the accused so that he may prepare his defense and be assured of his constitutional privilege against double jeopardy, then we believe that section 111-3(a)(3) of the Criminal Code has been complied with under this informal procedure for processing traffic violations, quasi-criminal cases and other misdemeanors.

**540 The machinery of government cannot adequately function without a little play in its joints. Without such procedures, the rigid technicalities of the Criminal Code would overtax our judicial system. With the flexibility of our criminal procedures in this limited area of law enforcement, we can adapt the wisdom and experience of the past to these complex problems of the present. Any person may enjoy all of the protective benefits of our Criminal Code by demanding that he be prosecuted by a verified complaint, or he may waive such rights. If an accused elects to proceed to trial under these informal procedures, he is still entitled to be adequately informed of the nature and elements of the offense, but the charge need not be stated with the specificity required in an indictment, verified complaint or information.

In Miranda v. State of Arizona, 384 U.S. 436, at page 467, 86 S.Ct. 1602, at page 1624, 16 L.Ed.2d 694, at page 720 (1966), the court stated:

‚We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.’

Thus, Miranda not only sets forth mandatory guidelines for the administration of criminal justice, but also exhorts*367 the States to exercise their own creative methods to bring about independent and constitutionally permissible solutions of such problems. If adequately solved through the construction of existing legislation and court rule, such problems may never reach the federal constitutional level. Such is our intent and purpose herein.

Accordingly, the judgment is affirmed.

Judgment Affirmed.

ABRAHAMSON and THOMAS J. MORAN, JJ., concur.

Ill.App. 1967.

People v. Brausam

83 Ill.App.2d 354, 227 N.E.2d 533

Citizens of the Constitution: Citizen of the United States

CITIZENS OF THE CONSTITUTION OF SEPTEMBER 17, 1787: CITIZEN OF THE UNITED STATES

The first citizens mentioned in the Constitution of September 17, 1787 are the members of Congress.  That Constitution requires Representatives in Article I Section 2 Clause 2 and Senators in Article I Section 3 Clause 3 to be Citizens of the United States. A Representative must be a Citizen of the United States for 7 years and a Senator must be a Citizen of the United States for 9 years.


The Constitution of September 17, 1787, also, requires a Representative to "be an Inhabitant of that State in which he shall be chosen," which precludes any requirement that a Representative, also, be a citizen of that State in which he shall be chosen. A Senator must, also, "when elected be an Inhabitant of that State for which he shall be chosen."


What is a Citizen of the United States? As any State citizen must owe exclusive allegiance to a State, members of Congress must owe allegiance to the Confederacy above anyone of thirteen original States. A Representative or Senator must declare himself and be only a Citizen of the United States of America. Such a declaration is never made by any member of Congress, because the Constitution of September 17, 1787 is never adopted by a legitimate Congress and first President, who must reside within the United States for 14 Years, which would be July 4, 1790.


The Confederacy known as the United States of America was established on March 1, 1781, when Maryland became the thirteenth and last State of the original thirteen to ratify the Articles of Confederation of November 15, 1777, and is, thereafter recognized by other nation States of the world. Nine years from March 1, 1781 the first Senators would be able to meet the qualifications for Senators set out in Article I Section 3 Clause 3.


The Constitution of September 17, 1787 was established between the first nine States ratifying that Constitution, which occurred on June 21, 1788. No Representative or Senator could satisfy the citizenship requirements set out in Article I of the Constitution of September 17, 1787.


A "Citizen of the United States," which both a Representative and a Senator must be, can only owe allegiance to the Articles of Confederation of November 15, 1777, as the Constitution of September 17, 1787 can only be adopted by Senators taking a written oath after March 1, 1790. The person who is to fill the Article II Section 1 Clause 5 Office of President can only do so 14 Years after July 4,
1776, which would be July 4, 1790.


Although the Constitution of September 17, 1787 clearly requires Representatives and Senators to be Citizens of the United States, which would mean owing allegiance to the Confederacy and the Articles of Confederation of November 15, 1777. No member of Congress and no President is ever held to that requirement. The failure of Congress and the President to meet and qualify pursuant to the Constitution of September 17, 1787 prevents the adoption of that Constitution.


Dr. Eduardo M. Rivera