{ "id": 5586055, "name": "The People of the State of Illinois, Defendant in Error, v. Sam O'Brien, Plaintiff in Error", "name_abbreviation": "People v. O'Brien", "decision_date": "1929-01-30", "docket_number": "Gen. No. 32,886", "first_page": "314", "last_page": "320", "citations": [ { "type": "official", "cite": "251 Ill. App. 314" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "322 Ill. 70", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5173573 ], "opinion_index": 0, "case_paths": [ "/ill/322/0070-01" ] }, { "cite": "218 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3352061 ], "opinion_index": 0, "case_paths": [ "/ill/218/0481-01" ] }, { "cite": "295 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5067645 ], "opinion_index": 0, "case_paths": [ "/ill/295/0058-01" ] }, { "cite": "104 La. 224", "category": "reporters:state", "reporter": "La.", "case_ids": [ 305013 ], "opinion_index": 0, "case_paths": [ "/la/104/0224-01" ] }, { "cite": "97 N. C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650835 ], "opinion_index": 0, "case_paths": [ "/nc/97/0465-01" ] }, { "cite": "60 Me. 410", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 661132 ], "opinion_index": 0, "case_paths": [ "/me/60/0410-01" ] }, { "cite": "59 N. H. 85", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4470613, 4471430 ], "opinion_index": 0, "case_paths": [ "/nh/59/0085-02", "/nh/59/0085-01" ] }, { "cite": "282 Fed. 731", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 5703064 ], "opinion_index": 0, "case_paths": [ "/f/282/0731-01" ] }, { "cite": "318 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5151977 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/318/0293-01" ] }, { "cite": "314 Ill. 110", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5132764 ], "weight": 5, "pin_cites": [ { "page": "158" }, { "page": "140" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill/314/0110-01" ] }, { "cite": "237 Ill. 204", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3387766 ], "opinion_index": 0, "case_paths": [ "/ill/237/0204-01" ] }, { "cite": "45 La. Ann. 1182", "category": "reporters:state", "reporter": "La. Ann.", "case_ids": [ 2534449 ], "opinion_index": 0, "case_paths": [ "/la-ann/45/1182-01" ] }, { "cite": "147 Ill. App. 393", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2649565 ], "opinion_index": 0, "case_paths": [ "/ill-app/147/0393-01" ] }, { "cite": "261 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4742658 ], "opinion_index": 0, "case_paths": [ "/ill/261/0197-01" ] } ], "analysis": { "cardinality": 550, "char_count": 10615, "ocr_confidence": 0.519, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3937633043470874 }, "sha256": "096feff007c1f26bf5587c4f00f40f6ce9f037690f17d9c5b71c99bbfa212c20", "simhash": "1:a17bbc3e94bf38a2", "word_count": 1846 }, "last_updated": "2023-07-14T21:56:15.181192+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, v. Sam O\u2019Brien, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Justice Ryner\ndelivered the opinion of the court.\nThe defendant was convicted in the county court of Cook county upon an information charging that in the City of Chicago, on a certain date, he \u201cdid unlawfully aid and abet a certain person, to-wit, Frank Perkins, not legally qualified to vote at a primary election, in attempting to vote at a primary election, contrary to the form of the statute,\u201d etc. and was sentenced to one year\u2019s imprisonment in the county jail. He has sued out this writ of error and says that the information wholly fails to charge any offense.\nOn behalf of the State it is contended that the information is sufficient because it is substantially in the language of the statute and reference is made to Ca-hill\u2019s St. ch. 46, If 96; section 84, chaper 46, Smith-Hurd Statutes. The principle of law stated is sound but we cannot agree with the conclusion that the information states in substance the language of the statute. Neither can we agree that the provision of the statute referred to has any application, except whatever aid may be derived from it in construing the statute which does control. The reference is to the Election Act of 1872 relating to elections, as distinguished from primary elections, and, even as to elections, it is not applicable to the City of Chicago. The Act of 1885 governs the conduct of elections in Chicago.\nThe statute under which the primary election, referred to in the information, was held, is an act of the General Assembly of this State entitled, \u201cAn act to provide for the making of nominations by, and the organization of political parties. Approved July 6, 1927.\u201d Section 65 of this act, Cahill\u2019s St. ch. 46, ff460(65), reads as follows:\n\u201c(1) Whoever unlawfully votes more than once at any primary or offers to vote after having once voted at such primary, or knowing that he is not a qualified elector at a primary, wilfully votes at such primary, shall, on conviction thereof, be fined in a sum not exceeding one thousand (1,000) dollars, or imprisoned in the county jail not exceeding one (1) year, or both in the discretion of the court.\n\u201c(2) Whoever wilfully aids or abets any one not legally qualified to vote at a primary in voting or attempting to vote at such primary, or,\n\u201c(3) By unlawful means prevents or attempts to prevent any primary elector from attending or voting at a primary; or,\n\u201c(4) Gives or offers to give any valuable thing or bribe to any judge or clerk of a primary, as a consideration of some act to be done or omitted to be done contrary to his official duty in relation to such primary, shall, on conviction thereof, be fined in a sum not exceeding one thousand (1,000) dollars, or imprisoned in the county jail not exceeding one (1) year, or both, in the discretion of the court; any judge or clerk who shall receive, request or demand any bribe or reward, forbidden by this Act shall, on conviction, be liable to the same penalties as prescribed in this Act for giving or offering to give such bribe or reward.\u201d\nIt will be seen that the information charges the defendant with having \u201cunlawfully\u201d aided and abetted a certain person in an attempt to illegally .vote at a primary election. The statute says that such aiding or abetting constitutes an offense only when it is \u201cwilfully\u201d done. The question then arises whether the omission of the word \u201cwilfully\u201d in the information is fatal.\nIt has been held that where a word, such as \u201cknowingly,\u201d is used in a statute as part of the description of the offense, the word must be used in any information based upon such statute. People v. Tait, 261 Ill. 197. An information charging the obtaining of property by false pretenses which omits the statutory words, \u201cwith intent to cheat and defraud,\u201d is fatally defective. This was held to be so because the words omitted were used in the statute to describe an essen, tial element of the crime. People v. Cohen, 147 Ill. App. 393. In the case of State v. Langston, 45 La. Ann. 1182, it was held that the word \u201cwilfully\u201d has a significance, and where used in the statute as descriptive of the offence denounced, its employment in the indictment is essential. In the case of Peterson v. Pusey, 237 Ill. 204, the Supreme Court of this State held that the word \u201cwilful,\u201d when used in connection with a violation of the law, means that the act constituting the violation was done knowingly and deliberately.\nThe facts are not before us because there is no bill of exceptions in the record. But to test the significance of the word \u201cwilful\u201d as descriptive of part of the offense, let us assume that defendant was reliably informed that the person whom he aided in the attempt to vote illegally was a duly qualified voter. Can it be said that his act, under such circumstances, was done wilfully or knowingly? We think not. Certainly it cannot be said that he aided the voter in question knowing that he was not qualified to vote if he had reasonable grounds to believe the contrary. The information is fatally defective unless the defect is cured by the use of the word \u201cunlawfully.\u201d\nThe word \u201cunlawfully\u201d when used in an information or an indictment is a mere legal conclusion of the pleader, unless the word is used in the statute to describe one of the elements of the offense. It has no more efficacy than the concluding words of the pleading that the acts complained of were done contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois. If the facts set out in the information do not show that an offense has been committed the word \u201cunlawfully\u201d adds nothing and apprises the defendant of nothing except that in some manner he .has unlawfully done certain acts, not, in themselves, constituting a violation of any law.\nIn the case of People v. Martin, 314 Ill. 110, the court, in considering the sufficiency of an information under the Prohibition Act, Cahill\u2019s St. ch. 43, said:\n\u201cThe use of the. word \u2018unlawfully\u2019 in connection' with the allegation of possession does not have any effeet, inasmuch as the use of this word represents merely the conclusion of the pleader and does not state any fact from which the inference of unlawfulness would arise.\u201d See also People v. Minto, 318 Ill. 293, and United States v. Horton, 282 Fed. 731.\nThere are numerous authorities in other jurisdictions to the same effect.\nIn State v. Concord Railroad, 59 N. H. 85, the court said:\n\u201cThe word \u2018unlawfully,\u2019 which is not used in describing the offence in the indictment, is not found in the statute description of the offence. When the word is not made a part of the statute description of the of-fence, if used in criminal pleading, the word asserts only a conclusion of law; and if the conclusion arises out of the facts set forth, its express averment is unnecessary; if not, its omission leaves the indictment insufficient. If the language of the indictment describes acts in themselves unlawful, it adds nothing to their unlawfulness to say they, were \u2018unlawfully\u2019 done. \u2019 \u2019\nIn State v. Hussey, 60 Me. 410, the language of the opinion on this point is:\n\u201cUnlawfully doing a thing is not synonymous with wilfully doing it. A man may do many things wilfully, which are not unlawful, and he may do things unlawfully which are not wilfully done. \u2019 \u2019\nLikewise in State v. Massey, 97 N. C. 465, it was said:\n\u201cNo offense is charged under the statute before it was amended, because the indictment charges the offense to have been committed subsequent to that time. None is sufficiently charged under the statute as amended, because the offense is not charged to have been done \u2018wantonly and wilfully, \u2019 and these words are not supplied in substance by the words \u2018unlawfully and maliciously, \u2019 which are employed in the indictment. The term \u2018unlawfully\u2019 implies that an act is done or not done as the law allows or requires; but the term \u2018wantonly\u2019 implies turpitude; that the act done is of wilful, wicked purpose. The term \u2018wilfully\u2019 implies that the act is done knowingly, and of stubborn purpose, but not of motive.\u201d\nIn State v. Robinson, 104 La. 224, the court said: \u201cThe words \u2018unlawfully\u2019 and \u2018feloniously,\u2019 used in this court, were not necessary, and neither takes the place of \u2018willfully,\u2019 employed in the statute. Neither has the same meaning and import as \u2018willfully\u2019; neither is the equivalent of \u2018willfully.\u2019 \u201d\nCounsel for the State finally urge that the sufficiency of the information cannot be questioned here because, in the trial court, the defendant made no motion to quash but went to trial without objection and asked for no bill of particulars. This is not the law. People v. Minto, 318 Ill. 293. There the court said:\n\u201cAn indictment or information charging a crime is a necessary preliminary to a conviction by the court for that crime. No waiver or consent by defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law. (People v. Pilewski, 295 Ill. 58.) A verdict of guilty is of no more force than a plea of guilty, and neither establishes guilt if the indictment or information charges no criminal offense, but in either case the defendant may question the indictment or information by a motion in arrest of judgment or on writ of error. (Klawanski v. People, 218 Ill. 481; People v. Wallace, 316 id. 120.)\u201d\nIn the case of People v. Sheldon, 322 Ill. 70, the court expounded the rul\u00e9 applicable in testing the sufficiency of an information or indictment charging a statutory offense, saying:\n\u201cAn indictment or information charging an offense defined by statute should be as descriptive of the offense as is the language.of the statute and should allege every substantial element of the offense as defined by the statute. People v. Martin, 314 Ill. 110; Cannady v. People, 17 id. 158; People v. Barnes, 314 id. 140; Sokel v. People, 212 id. 238.\u201d\nThe information in question, put to this test, falls short of charging the defendant with any offense known to the law.\nFor the foregoing reasons, the judgment of the county court of Cook county is reversed.\nReversed.\nHoldom, P. J., and Wilson, J., concur.", "type": "majority", "author": "Mr. Justice Ryner" } ], "attorneys": [ "Louis Greenberg and Frank G. Marshall, for plaintiff in error.", "Robert E. Crowe, State\u2019s Attorney, for defendant in error; Edward E. Wilson, Assistant State\u2019s Attorney, of counsel." ], "corrections": "", "head_matter": "The People of the State of Illinois, Defendant in Error, v. Sam O\u2019Brien, Plaintiff in Error.\nGen. No. 32,886.\nHeard in the third division of this court for the first district at the October term, 1928.\nOpinion filed January 30, 1929.\nLouis Greenberg and Frank G. Marshall, for plaintiff in error.\nRobert E. Crowe, State\u2019s Attorney, for defendant in error; Edward E. Wilson, Assistant State\u2019s Attorney, of counsel." }, "file_name": "0314-01", "first_page_order": 376, "last_page_order": 382 }