also dissenting:
My departure from the majority stems from a fundamental disagreement as to the meaning of the phrase “intent to commit the offense of murder.” The majority claims that such phrase is synonymous with “intent to kill.” I disagree. In murder, death of a person occurs. To sustain a conviction for such offense the State may prove any one of three mental states: intent to kill, intent to cause great bodily harm, or knowledge that the act would create a strong probability of death or great bodily harm. This is not true when the person survives and the perpetrator is charged with attempted murder. The offense of attempt is a specific intent crime. Where the offense is attempted murder, one and only one mental state must be charged and proved — intent to kill. It is not sufficient that a defendant intentionally or knowingly caused great bodily harm, for then he would be chargeable with aggravated battery — not attempted murder. (See Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a); People v. Muir (1976), 38 Ill. App. 3d 1051, 1057.) This court has repeatedly held that intent to kill is the necessary mental state to be proved where the offense charged is attempted murder. (People v. Trinkle (1977), 68 Ill. 2d 198; People v. Harris (1978), 72 Ill. 2d 16; People v. Roberts (1979), 75 Ill. 2d 1; People v. Jones (1979), 81 Ill. 2d 1.) Thus, when an indictment states that a defendant acted with the “intent to commit the offense of murder,” the charge not only fails to eliminate the other two mental states which can constitute murder — intent to cause great bodily harm or knowledge that the act will create a strong probability of death or great bodily harm — but also fails to charge a necessary element of the offense of murder.
The sixth amendment to the Constitution of the United States and article I, section 8, of the Constitution of Illinois require that, in criminal prosecutions, a defendant has the right to be apprised of the nature and cause of the accusations against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8.) This constitutional requirement is embodied in section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963, which directs that a criminal charge set forth “the nature and elements of the offense charged” (Ill. Rev. Stat. 1977, ch. 38, par. Ill — 3(a)(3)).
The question of when an indictment sufficiently informs a defendant of “the nature and cause of the accusation” had been painstakingly reiterated by the United States Supreme Court. In 1850 that court confronted the issue of whether an indictment for forgery is fatally defective for failure to charge that the crime was committed with a felonious intent. The court stated:
“The general rule is, that the charge must be laid in the indictment so as to bring the case within the description of the offence as given in the statute, alleging distinctly all the essential requisites that constitute it. Nothing is to be left to implication or intendment. ***
In all cases of felonies at common law, and some, also, by statute, the felonious intent is deemed an essential ingredient in constituting the offence; and hence the indictment will be defective, even after verdict, unless the intent is averred. The rule has been adhered to with great strictness; and properly so, where this intent is a material element of the crime.” (United, States v. Staats (1850), 49 U.S. (8 How.) 41, 44, 12 L. Ed. 979, 981.)
See United States v. Heller (6th Cir. 1978), 579 F.2d 990, 998-99; United States v. Morrison (9th Cir. 1976), 536 F.2d 286, 287-89; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320, 1324; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 4; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755, 761.
In United States v. Cook (1872), 84 U.S. (17 Wall.) 168, 21 L. Ed. 538, the court again addressed the question of when an indictment will be found insufficient to charge a defendant. The court stated:
“[T] he rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested, or reversed on error.” (United States v. Cook (1872), 84 U.S. (17 Wall.) 168, 174, 21 L. Ed. 538, 539.)
See United States v. Vesaas (8th Cir. 1978), 586 F.2d 101, 103-04; United States v. Camp (8th Cir. 1976), 541 F.2d 737, 741; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 3-4.
In United States v. Carll (1882), 105 U.S. 611, 26 L. Ed. 1135, the court ruled that an indictment for forgery failed to charge the defendant with any crime when it did not allege that the defendant knew the instruments in question to be false, forged, counterfeited, and altered. “The omission is a matter of substance, and not a ‘defect or imperfection in matter of form only,’ ***.” United States v. Carll (1882), 105 U.S. 611, 613, 26 L. Ed. 1135, 1136.
The court again emphasized:
“No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital.
* * *
*** Such particulars are matters of substance, and not of form, and their omission is not aided or cured by the verdict.” (United States v. Hess (1888), 124 U.S. 483, 486-89, 31 L. Ed. 516, 517-18, 8 S. Ct. 571, 573-74.)
Russell v. United States (1962), 369 U.S. 749, 765, 8 L. Ed. 2d 240, 251, 82 S. Ct. 1038, 1047-48; United States v. Heller (6th Cir. 1978), 579 F.2d 990, 999; United States v. King (9th Cir. 1978), 587 F.2d 956, 963; United States v. Camp (8th Cir. 1976), 541 F.2d 737, 739-40; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320, 1324; United States v. Huff (5th Cir. 1975), 512 F.2d 66, 69; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1, 3-4; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755, 761.
Indictments which fail to allege an essential element must be distinguished from indictments which are defective only as to matters of form. Defects which are merely matters of form and not of substance are cured by verdict, and objections after verdict come too late, regardless of the fact that they might have rendered an indictment bad if timely raised. Joplin Mercantile Co. v. United States (1915), 236 U.S. 531, 536, 59 L. Ed. 705, 708, 35 S. Ct. 291, 293; United States v. Huff (5th Cir. 1975), 512 F.2d 66, 69.
It is clear that all fundamental rules above set forth have retained “their full vitality under modern concepts of pleading.” Russell v. United States (1962), 369 U.S. 749, 765-66, 8 L. Ed. 2d 240, 252, 82 S. Ct. 1038, 1048; Hamling v. United States (1974), 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887; United States v. Vesaas (8th Cir. 1978), 586 F.2d 101; United States v. Heller (6th Cir. 1978), 579 F.2d 990; United States v. King (9th Cir. 1978), 587 F.2d 956; United States v. Camp (8th Cir. 1976), 541 F.2d 737; United States v. Morrison (9th Cir. 1976), 536 F.2d 286; United States v. Huff (5th Cir. 1975), 512 F.2d 66; United States v. Wabaunsee (7th Cir. 1975), 528 F.2d 1; United States v. Mekjian (5th Cir. 1975), 505 F.2d 1320; United States v. Musgrave (5th Cir. 1971), 444 F.2d 755.
The defendant’s right to know the nature and cause of the offense is guaranteed not only by the Constitution of the United States, but also by the Constitution of the State of Illinois. It “is no empty technicality, but a substantial provision that may not be ignored.” People v. Green (1938), 368 Ill. 242, 254, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Abrams (1971), 48 Ill. 2d 446, 458-59.
Illinois cases have shown a long history of treating the “nature and elements” requirement of an indictment in conformance with the dictates of the United States Supreme Court. In People v. Sowrd (1938), 370 Ill. 140, 143-44, it was stated:
“No rule of law is better settled than that an indictment or information must charge all the elements of the offense. As we said in People v. Sheldon, 322 Ill. 70: ‘An 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. ’ The information here, put to that test, does not charge the defendant with any offense known to the law.
We said in People v. Green, 368 Ill. 242: ‘It is a rule, even in civil pleading, that if a complaint fails to state a cause of action the defect may be reached and the question raised on writ of error, even if there has never been any demurrer, motion for a new trial or motion in arrest of judgment. * * * The same rule applies to criminal pleading, and if an indictment is void the error may be reached in this court even though there has been a plea of guilty in the trial court.’ ”
See People v. Patrick (1967), 38 Ill. 2d 255, 257; People v. Furman (1962), 26 Ill. 2d 334, 336; People v. Harris (1946), 394 Ill. 325, 327; People v. Chiafreddo (1942), 381 Ill. 214, 219-20.
Technical objections to matters of form are waived by a defendant’s failure to present a motion to quash. (People v. Barney (1959), 15 Ill. 2d 503, 507; People u. Harris (1946), 394 Ill. 325, 327; People v. Pond (1945), 390 Ill. 237, 239;People v. Novotny (1939), 371 Ill. 58, 61.) However, if an indictment fails to allege an essential element of the offense charged, the sufficiency of the indictment may be attacked by a motion to quash, motion in arrest of judgment, or an appeal. (People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 425; People v. Gregory (1974), 59 Ill. 2d 111, 112; People v. Edge (1950), 406 Ill. 490, 494; People v. Nickols (1945), 391 Ill. 565, 571; People v. Sword (1938), 370 Ill. 140, 143-44; People v. Green (1938), 368 Ill. 242, 250-51, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Minto (1925), 318 Ill. 293, 295.) Such an indictment will be subject to attack even if the accused has submitted a plea of guilty. “ ‘The effect of a plea of guEty is a record admission of whatever is weU aUeged in the indictment. If the latter is insufficient it confesses nothing.’ ” Klawanski v. People (1905), 218 Ill. 481, 484. See also People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Nickols (1945), 391 Ill. 565, 571; People v. Pond (1945), 390 Ill. 237, 239; People v. Green (1938), 368 Ill. 242, 251, overruled in part on other grounds in People v. Griffin (1967), 36 Ill. 2d 430; People v. Minto (1925), 318 Ill. 293, 295; People v. Wallace (1925), 316 Ill. 120, 122.
Since the indictment here faEs to clearly and unambiguously set forth the essential element of specific intent to kEl, it is fatally defective and cannot support a conviction. This is true despite the fact that the defendant submitted a plea of guEty, because such a plea only confesses that which is clearly charged in the indictment. Since the indictment charges no offense, the plea of guEty cannot cure the defect.
The majority in the present case found the indictment valid by a strained interpretation of People v. Trinkle (1979), 68 Ill. 2d 198, People v. Harris (1978), 72 Ill. 2d 16, People v. Roberts (1979), 75 Ill. 2d 1, and People v. Jones (1979), 81 Ill. 2d 1. The majority emphasized that the defect in each of the those cases was in the jury instructions. It concluded that since there was a guilty plea tendered by the defendant here, there was no danger of misinforming a jury. However, the basic thrust of those cases was to discard forever the notion that the mental states of intent to do great bodily harm and knowledge that such act would cause death or great bodily harm could suffice to constitute attempted murder. The necessity that the “intent to kill” be clearly set out is even more crucial when the defendant submits a plea of guilty to assure that the defendant’s rights are not lightly cast aside. He must know, after all, the exact offense to which he admits guilt. Moreover, the fact that, in the series of cases beginning with Trinkle, the reversible error was in the instructions does not support the conclusion that a similarly fatal error cannot be contained in an indictment.
The majority also discounts the Trinkle series of cases by pointing out that in each the alternative definition of murder was recited in the instructions, which included the mental states of “intent to do great bodily harm” and “knowledge that such acts create a strong probability of death or great bodily harm.” In the present case because the defendant tendered a plea of guilty, the problem of erroneous instructions was necessarily absent. Moreover, the majority points out that the indictment and admonishment did not include the language found to be troublesome in the Trinkle series of cases — “intent to do great bodily harm” and “knowledge that such acts create a strong probability of death or great bodily harm.” However, this misses the point completely. It is the failure to include the essential element of “intent to kill” that is the problem. The simple absence of other erroneous language cannot cure this flaw.
The majority’s statement that “the indictment could have been in more detail” (83 Ill. 2d at 326) is a gross understatement. The inclusion of intent to kill is not a detail. It is the cornerstone of the indictment and without it the indictment is void. The majority’s claim that the inclusion of the intent to kill would have been “redundant” (83 Ill. 2d at 326) is obviously absurd, since there was never mention of any specific intent in the first instance.
The majority attempts to bolster its holding by stating that “[i] f the indictment had only charged the defendant with the intent to kill and did not include the allegation that the defendant acted with the intent to commit murder, it would have been defective *** in that it would not have charged the defendant with an intent to commit a specific offense.” (83 Ill. 2d at 327.) This adds nothing to the argument as to the correctness of the instant indictment, since a converse proposition cannot be used, logically, to prove the reverse premise.
The end result is that nowhere in the indictment is the defendant notified that he must have had the intent to kill in order for his act to constitute the offense of at-temped murder. The legal term “murder” does not and cannot supply this omission. Consequently, the indictment is void and cannot support a conviction.
The majority rejects defendant’s argument that the trial court’s failure to admonish him with respect to the necessary element of “intent to kill” rendered his plea involuntary. By citing People v. Krantz (1974), 58 Ill. 2d 187, it points out that Supreme Court Rule 402 “requires only substantial and not literal compliance with its provisions.” (83 Ill. 2d at 329.) I agree that substantial compliance is generally necessary when a court admonishes a defendant prior to accepting a tendered guilty plea. However, it is constitutionally mandatory that a defendant be specifically informed of each and every essential element of the offense to which he confesses guilt. This requirement must be followed to the letter. I find the question to be controlled by Henderson v. Morgan (1976), 426 U.S. 637, 49 L. Ed. 108, 96 S. Ct. 2253. In Henderson, the defendant collaterally attacked his conviction, claiming that his plea of guilty was involuntary because he had never been informed that intent to cause death was a necessary element of second-degree murder. The defendant was indicted for first-degree murder after allegedly stabbing the owner of a farm on which he lived and worked. The indictment charged that he “willfully” stabbed the victim. Defendant tendered a plea of guilty to the lesser included offense of murder in the second degree. Although he was admonished as to the consequences of his guilty plea, he was at no time informed that the intent to cause the death of the victim was an element of the offense of second-degree murder. At the sentencing hearing, the defendant stated that he “meant no harm to that lady.”
The Supreme Court accepted the prosecutor’s assertion that the evidence pointing to the guilt of the defendant was overwhelming, yet stated:
“Nevertheless, such a plea cannot support a judgment of guilt unless it was voluntary in a constitutional sense. And clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” (Henderson v. Morgan (1976), 426 U.S. 637, 644-45, 49 L. Ed. 2d 108, 114, 96 S. Ct. 2253, 2257.)
The court found that the failure of the court to inform the defendant of the essential element of “intent to cause death” deprived the accused of his constitutional right to receive “real notice of the true nature of the charge against him” and rendered his plea involuntary. The court reiterated:
“There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. ***
***
*** [I] t also forecloses the conclusion that the error was harmless beyond a reasonable doubt, for it lends at least a modicum of credibility to defense counsel’s appraisal of the homicide as a manslaughter rather than a murder.” (Henderson v. Morgan (1976), 426 U.S. 637, 646-47, 49 L. Ed. 2d 108, 115-16, 96 S. Ct. 2253, 2258-59.)
As a result, the court affirmed the district court’s decision to set aside the guilty plea as it was involuntary and violated due process of law.
In the present case, the defendant was never informed by the court before his plea of guilty was accepted that the “intent to kill” was an essential element of attempted murder. He was informed of the nature of the charge against him by the reading of the indictment, which, as we have already stated, failed to contain the essential element of “intent to kill.” Consequently, the defendant’s plea, like that in Henderson, was involuntary, and the judgment of conviction was entered without due process of law. As in Henderson, too, the error cannot be claimed as harmless. The defendant was observed by police running from the scene of a recently reported crime. He was pursued by five police officers. The defendant, at the sentencing hearing, related his version of the transaction:
“I started running. They were firing. They shot me four times. I turned around and fired. I don’t know why I fired. They was firing at me, and I was hit. I just lost my head. *** I never had no intention of taking no one’s life. I was just scared that night and trying to get away.”
As in Henderson, the testimony of the defendant as to his state of mind at the time of the commission of the offense “lends at least a modicum of credibility” to his claim that he lacked the specific intent to kill. This error was not harmless and requires a reversal of his conviction.
The majority viewed the testimony of defendant protesting his lack of intent to kill as irrelevant in view of his decision to plead guilty and in view of the factual basis supporting such guilt. The majority cites North Carolina v. Alford (1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160, for the proposition that a court may validly accept a plea of guilty from a defendant who simultaneously asserts his innocence. I believe that this case is inapposite, since in Alford the defendant knew all of the essential elements of the offense to which he pleaded guilty. Under the circumstances there the defendant could make an intelligent and informed decision to elect to plead guilty. Such a plea was obviously voluntary.
In the present case, the defendant did not know that the “intent to kill” was necessary to constitute the offense of attempted murder. Because he confessed to an offense without knowing that he must have intended to kill the victim, his plea admitted to nothing and was involuntary.
For the reasons stated, I would reverse.