Opinion
No. 71-48 Judgments reversed.
November 30, 1971.
APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM P. FLEMING, Judge, presiding.
Melvin W. Trotier, of East St. Louis, for appellant.
Robert H. Rice, State's Attorney, of Belleville, for appellee.
The defendant was charged by two indictments, one dated April 30, 1970, and the other dated May 8, 1970, with pandering, in violation of section 11-16(a) (2) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 11-16(a) (2).) The defendant filed a motion to dismiss under section 114-1(a) (8) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 114-1(a) (8)) for failure of each indictment to charge an offense within the meaning of Section 111-3(a) (3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 111-3(a) (3).) Both motions were denied and the defendant proceeded to trial on the second indictment. Midway through the trial the defendant entered a plea of guilty to both charges, and was given concurrent six-month sentences on each offense.
The only issue involved is whether or not each of the indictments charged the crime of pandering within the purport of section 111-3 of the Code of Criminal Procedure. This section states:
"A charge shall be in writing and allege commission of an offense: (1) by stating name of offense; (2) citing the statutory provision alleged to have been violated; (3) setting forth the nature and the elements of the offense charged; (4) stating the date and county of offense; (5) stating the name of the accused, if known."
We are concerned with whether the requirements in part (3) of the above section has been met.
Section 11-16(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 11-16(a)) states:
"Any person who performs any of the following acts for money commits pandering; (1) compels a female to become a prostitute; or (2) arranges or offers to arrange a situation in which a female may practice prostitution."
The indictment charges:
"That on the 30th day of April, 1970 in said county, Willard Ford, committed the offense of pandering in that he, for money, arranged or offered to arrange a situation in which a female might practice prostitution in violation of Paragraph 11-16(a) (2), Chapter 38."
• 1, 2 The general rule is that it is adequate to allege an offense in the language of the statute when the statute particularizes the offense sufficiently for defendant to know the precise offense of which he is accused, but where the statute does not describe the acts which constitute the crime or where by its generality it may embrace acts which the statute does not intend to punish, a charge solely in the language of the statute is insufficient, ( People v. Billingsley, 67 Ill. App.2d 292, 213 N.E.2d 765, 768), and an offense must be charged with such clarity and particularity as to enable defendant to fully prepare for his defense and plead the judgment in bar of subsequent prosecution for the same offense. People v. Mowen, 109 Ill. App.2d 62, 248 N.E.2d 685, 688.
• 3 In People v. Mansfield, 181 Ill. App. 710, an indictment charging the defendant with pandering was held insufficient for failing to designate the female person procured by the defendant. This indictment was based upon the old Illinois pandering statute, Section 57, ch. 38, Hurd's Stat., 1911, but that statute is sufficiently similar to the one involved here to meet the same requirements. Both statutes specifically require that the defendant, in order to violate the statute, commit some act which is directed to, or against, a female. Therefore, when the female is known, her name must be included in the indictment as the reference to the female is an element of the offense.
The state relies on two cases involving violations of the Narcotics Drug Act. Chap. 38, Sec. 22-3, in which the Supreme Court held that it was unnecessary to name the buyer involved and that the indictment was sufficiently stated in the words of the statute. ( People v. Allen, 263 N.E.2d 495; People v. Adams, 263 N.E.2d 490.) However, the court expressly stated concerning the statute involved: "The statute creating the offense makes no reference to the purchaser of the drug and his identity is not an element of the crime." People v. Adams, supra. Chapter 38, Sec. 22-3, reads:
"It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized by this act. No person may unlawfully use narcotic drugs."
It can readily be seen that this statute, unlike the statute in the instant case, does not make any reference to another person and therefore does not require the name of the buyer as an element of the offense.
In light of the foregoing, we find the indictments to be insufficient and the judgments are therefore reversed.
Judgments reversed.