¶1concurring in part, dissenting in part:
¶2Dissent I must on the pivotal issue of this appeal.
¶3My reading of Pujoue is not as narrow as that of my colleagues. In addition to the language from Pujoue set forth in the majority opinion, the supreme court went on to say:
“We are not here presented the question and we do not decide whether this complaint could withstand a pretrial motion filed pursuant to section 114 — 1 or a motion in arrest of judgment filed pursuant to section 116 — 2 of the Code of Criminal Procedure. While we do not approve of any failure to comply strictly with the explicitly stated requirements of section 111 — 3 of the Code of Criminal Procedure, the sufficiency of a complaint attacked for the first time on appeal must be determined by a different standard, and we do not agree with the appellate court that failure to allege an element of the offense in the complaint, per se, rendered it void.” 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.
¶4I do not read Pujoue as imposing a straitjacket upon this court that we must automatically reverse in this situation when a motion in arrest of judgment is filed. The court specifically declined to decide whether the complaint in Pujoue would withstand either a pretrial motion or a motion in arrest of judgment. Furthermore, the Pujoue court specifically disagreed with the intermediate appellate tribunal that “failure to allege an element of the offense in the complaint, per se, rendered it void.” In other words, the supreme court has not ruled on precisely the issue before this court, and — as the majority correctly points out — specifically declined to do so in Pujoue. And Lutz followed suit.
¶5More recently, in People v. Hall (1982), 96 Ill. 2d 315, 324, 450 N.E.2d 309, the supreme court again found it “unnecessary to consider whether the literal requirement of [the statute] or a lesser ‘actual prejudice’ standard should apply in assessing this challenge to the sufficiency of an information, raised for the first time by a motion in arrest of judgment.”
¶6Ergo, our court of last resort has not shut the door on this question.
¶7The charge in this appeal told the defendant exactly what he was charged with — “reckless homicide” — that he unintentionally killed an individual without lawful justification, by committing an act likely to cause death or great bodily harm, by driving a motor vehicle at an excessive speed, which resulted in a crash and a death. The four corners of that charge, read in its totality, fully apprised the defendant of the violation of our criminal laws with which he was charged. Indeed, the title of the charge itself — “reckless homicide” — furnishes the magic word, the very element, of which the majority complains.
¶8This case was called a “reckless homicide,” was treated as a “reckless homicide,” discovery was conducted as though it were a “reckless homicide,” it was tried before a jury as a “reckless homicide,” it was argued both to the court and to the jury as a “reckless homicide,” and all of the motion practice was phrased in the context of “reckless homicide.” The defendant knew all he needed to know to conduct his defense.
¶9To permit the defendant to literally lay in ambush in the weeds, wait until the trial is fully completed, then leap out to claim a pointless technicality for the purpose of avoiding conviction and just punishment is both a travesty and a miscarriage of justice. Even more important, it does serious violence to common sense and any reasonable definition of fairness — certainly fairness to the People.
¶10On this issue, I respectfully dissent.
¶11On the remaining issues, I concur.