¶1dissenting:
¶2The majority here errs in its assessment of the standard to be used to determine if an information is void. The opinion correctly states the basic rule that “the argument that a charge is void is one that can be raised at any time, regardless of whether the alleged error is properly preserved for review.” (83 Ill. 2d at 313.) However, the majority, citing People v. Pujoue (1975), 61 Ill. 2d 335, proceeds to test the information by a different and lesser standard than that applied to a charge attacked by a motion to quash or by a post-trial motion.
¶3In Pujoue, this court stated:
“[T]he 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.)
¶4The court went on to recite the rule applicable to indictments which are attacked for the first time on appeal and found that an indictment is sufficient “if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Pujoue (1975), 61 Ill. 2d 335, 339.) While the above rule as stated is correct, and may be used to defeat a defect which is a matter of form only, it cannot be applied to save any indictment or information which has failed to include an essential element of the offense, as such omission can never be regarded a matter of form. This is true regardless of when the indictment is first attacked, be it before trial, after trial, or on appeal.
¶5In People v. Gilmore (1976), 63 Ill. 2d 23, the court examined the consequences of a defendant’s failure to raise the question of the sufficiency of indictments at the trial level. The court resolved the question by referring to section 114 — 1 of the Code of Criminal Procedure of 1963:
“(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds;
…
(8) The charge does not state an offense;
…
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extention thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, pars. 114-1 (a), (b).)
¶6The committee comments to section 114 — 1(a)(8) specify that a motion under this paragraph may be made at any time:
“Subsection (a)(8) permits the motion to dismiss where the charge does not state an offense. …. Since the charge which does not state an offense does not give defendant a full notice of why he is being tried, and the charge will not support a judgment unless an offense is stated therein, due process would be violated and may be attacked at any time.” (Emphasis added.) (Ill. Ann. Stat. ch. 38, par. 114 — 1(a)(8), Committee Comments, at 197-98 (Smith-Hurd 1977).)
¶7The court in Gilmore, however, interpreted the non-waiver provision to extend only to motions in arrest of judgment. This assessment was based on section 116 — 2(b)(1) of the Code of Criminal Procedure of 1963, which provides that a verdict or finding of guilty may be arrested when [t] he indictment, information or complaint does not charge an offense.” (Ill. Rev. Stat. 1975, ch. 38, par. 116 — 2(b)(1).) This court in Gilmore then concluded that, since no similar statutory provision was enacted by the legislature for the indictment first attacked on appeal, the nonwaiver provision of section 114 — 1(b) did not apply. I do not feel that this conclusion is justified. The legislature cannot destroy or diminish the constitutionally mandated right of a defendant to be informed of the nature of the offense with which he is charged. Moreover, the plain meaning of this statute forces the conclusion that where an indictment or information fails to allege an essential element of the offense it may be attacked at any time, including on appeal. The standard by which it is to be judged is not lessened by the fact that it is first attacked on appeal. It is a fundamental rule that a defendant has a right guaranteed by both the Constitution of the United States and the Constitution of Illinois to be informed of the nature of the accusation with which he is charged. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8; Russell v. United States (1962), 369 U.S. 749, 765, 8 L. Ed. 2d 240, 251, 82 S. Ct. 1038, 1047-48.) If the defect in the indictment or information is merely a technical objection to a matter of form, the defect will be waived by a defendant’s failure to present a motion to quash. (People v. Barney (1959), 15 Ill. 2d 503, 507; People v. Harris (1946), 394 Ill. 2d 325, 327; People v. Pond (1945), 390 Ill. 237, 239; People v. Novotny (1939), 371 Ill. 58, 61.) In the present case, however, the defect is the failure to specify an essential element of the crime charged — “intent to kill.” The only mental state specified in the information was that the defendant “knew they [his acts] created a strong probability of death or great bodily harm.” The omission of the element “intent to kill” renders the information void and requires reversal of the conviction even though the defendant tendered a plea of guilty. 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.
¶8For the above reasons, as well as for the reasoning found in my dissent in People v. Barker (1980), 83 Ill. 2d 319, I would affirm the judgment of the appellate court.