author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52956.
    JEAN GREENBERG et al., Appellees, v. MICHAEL REESE HOSPITAL, Appellant.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

      Lord, Bissell & Brook (Harold L. Jacobson, Williams P. Dorr, and Hugh C. Griffin, of counsel), and McKenna, Storer, Rowe, White & Farrug (John F. White, Robert S. Soderstrom, and James P. DeNardo, of counsel), all of Chicago, for appellant.

      David S. Pochis. Ltd. (Alan D. Katz, of counsel), of Chicago, for appellees.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs in these consolidated cases, Jean Greenberg, Laurel Deane Block Marshall, Joseph Weinberg, Bruce J. Shapin, Howard Dane, and Richard Kevin Ryan, appealed from the judgments of the circuit court of Cook County entered in favor of defendant, Michael Reese Hospital, upon allowance of its motions to dismiss and for summary judgment. The appellate court reversed (78 Ill. App. 3d 17), and we allowed defendant’s petition for leave to appeal.

Plaintiffs, in their respective complaints, allege that at various times during the years 1941 to 1954 defendant provided each with therapeutic X-radiation treatments in connection with ailments of the tonsils, adenoids and adjacent tissues of the throat. Plaintiffs were children at the time of treatment and had been referred by their personal physicians to defendant for treatment. Subsequently, and by various means, each of the plaintiffs became apprised of the potential hazards attendant to such X-radiation therapy. It is alleged that by reason of the therapy each of the plaintiffs sustained injuries in the form of cancer, tumors or nodules in the tissues of the throat.

The complaints alleged three theories of liability: negligence, res ipsa loquitur, and strict liability in tort. Defendant moved to dismiss the res ipsa loquitur and strict liability in tort counts for failure to state a cause of action based on the facts alleged, and moved for summary judgment on the remaining negligence counts. The circuit court allowed all of defendant’s motions. The appellate court reversed as to the strict liability and negligence counts, holding that the strict liability issue was controlled by Dubin v. Michael Reese Hospital (1979), 74 Ill. App. 3d 932, and that the circuit court erred in entering summary judgments on the negligence counts.

In deciding the motions for summary judgment, the circuit court considered the affidavits of two expert witnesses and the discovery deposition of defendant’s expert. That witness, Dr. Lionel Cohen, was an M.D. specializing in the practice of therapeutic radiology and was then chairman of the Department of Radiation Oncology at Michael Reese Hospital. In the brief affidavits submitted in support of the motions for summary judgment, Dr. Cohen stated that “based on a reasonable degree of medical and radiological certainty, the administration of X-ray therapy for hypertrophic lymphoid tissue in the pharynx was standard and customary and ordinarily used by hospitals and physicians” at the times in question. He also stated that at the times in question the state of medical knowledge did not include the “hazards of alleged resulting tumor developments of the thyroid gland.”

In his discovery deposition, Dr. Cohen acknowledged that he presently believes that “radiation delivered to a child could increase the risk of developing thyroid cancer.” He stated that the first “hint” of a correlation between thyroid cancer and childhood irradiation of the tonsils came in a 1950 medical journal article which reported on 28 cases of thyroid cancer (9 of which involved childhood irradiation of the thymus). Prior to the introduction of antibiotics, Dr. Cohen indicated, X-ray therapy was used and found to be successful for a number of ailments involving infections. Historically, he noted, free use of antibiotics was a phenomenon of the 1950’s. In addition, the risks of surgery were greater at the times in question than at present. As a consequence, despite the unknown possible hazards of radiation, the “weight of the evidence seemed to be in favor of radiation treatment.” Dr. Cohen said that the main reason that X-ray treatment is not as “fashionable” now as it was in the past is that there are now “safer and more effective alternatives which didn’t exist in the past.”

Attached to plaintiffs’ responses to defendant’s motions for summary judgment were the affidavits of Eli A. Port, a “health physicist.” At that time he had received a B.S. in physics and an M.S. in radiological health physics, and had completed work towards a Ph.D. in radiological health physics, including a dissertation on the subject of risks and benefits in pediatric radiology. In addition, Port indicated that he had a number of years’ experience in the area of radiation safety, including work in connection with radiation therapy in hospitals. In his affidavits, he described health physics as “the science and profession dedicated to protecting man and his environment from the unwanted or undesirable effects of radiation.”

Port said that at the times in question it was well known “that radiation might or could cause cancerous growths in the human body” and that “such knowledge was readily available to the radiological and medical community.” He stated that this information should have been known to the defendant. Port also said that at the times in question the technology was available to shield tissue adjacent to areas being treated and that proceeding without such shielding was “an unsafe and hazardous practice.” With regard to the hazards inherent in X-radiation therapy, plaintiffs’ expert concluded that “based upon a reasonable degree of radiological and physical certainty” defendant should have known that the use of radiation included the hazard of tumor development in tissues adjacent to the tonsils, including the thyroid gland. Finally, Port concluded that at the times in question there were techniques available, including animal studies, which would have enabled defendant to ascertain the long-term effects of irradiation and thereby determine the benefit and risk associated with radiation of the tonsils. He said that the failure to do so created a practice which was “unnecessarily hazardous.”

Defendant first contends that the doctrine of strict liability in tort “should not be extended to the professional, medical decision to use X-ray therapy as an alternative course of patient treatment.” We note that a similar argument has been presented by the defendant in Dubin v. Michael Reese Hospital and Medical Center (1980), 83 Ill. 2d 277. In determining that the doctrine of strict liability was applicable to the facts alleged here, the appellate court relied on the appellate decision in Dubin (74 Ill. App. 3d 932). There the appellate court, after analogizing to cases involving electricity, held that X-radiation was a “product” within the ambit of section 402A of the Restatement (Second) of Torts. It further held that hospitals which charge for X-radiation treatments were in the “business of selling” such treatments so as to render them strictly liable for injuries resulting from unreasonably dangerous defects in the product.

In support of its contention that strict liability should not apply to X-radiation therapy, defendant argues that “the public policy which generated the imposition of strict liability upon those who manufacture, sell and distribute consumer goods for commercial transactions and profit does not justify extension of the doctrine to those who render professional services, particularly medical services.”

In Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, this court was required to decide the question whether a hospital was in the “business of selling” whole blood as that terminology is used in section 402A, or whether the transfusion of blood was a service so as to render inapplicable the doctrine of strict liability in tort. (47 Ill. 2d 443, 447.) In the context of that decision, quoting Russell v. Community Blood Bank, Inc. (Fla. App. 1966), 185 So. 2d 749, aff’d as modified (Fla. 1967), 196 So. 2d 115, the court said:

“ ‘ “It seems to us a distortion to take what is, at least arguably, a sale, twist it into the shape of a service, and then employ this transformed material in erecting the framework of a major policy decision.” ’ ” (47 Ill. 2d 443, 450.)

Holding that the sale by a hospital of whole blood contaminated with serum hepatitis was' not sufficiently different from the sale of other defective products to justify a departure from the rule of strict liability, the court said:

“We believe no logical distinction can be made between the facts alleged *** and those ordinarily involved in the dispensation of drugs and other medications by hospitals or other entities, where injury or disease resulting from the existence of deleterious contaminants therein would most assuredly result in the application of the strict liability theory.” 47 Ill. 2d 443, 453.

In our opinion, whether, as held in Dubin (74 Ill. App. 3d 932, 939-43), X-radiation is physically analogous to electricity is in large part irrelevant to the policy considerations enunciated in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, which should determine the application of strict liability in tort to hospitals for administering X-radiation therapy. (See 74 Ill. App. 3d 932, 939-43.) Further, a number of additional considerations persuade us that Cunningham is not here controlling. Initially, it is to be noted that none of the plaintiffs allege the presence either of a “deleterious contaminant” or of other undesirable features of extraneous origin in the X rays. All plaintiffs except Richard Kevin Ryan allege simply that the X rays “manufactured” by the defendant were “hazardous and dangerous” in that they caused tumors and cancer to develop. Plaintiff Ryan alleged that the treatments received by him “contained a condition which rendered them unreasonably dangerous” in that they “caused cancerous neoplasms,” “contained excessive dosages of radiation,” and “were not accompanied by any adequate warning.” By comparison, in Cunningham the allegations centered on the particular containers of blood received by the plaintiff and the contaminants contained therein. Here, the plaintiffs’ emphasis is not on the X-radiation but rather on the results of treatment. As such, plaintiffs’ allegations go not so much to the defective nature of the particular X-radiation treatments in question as to the appropriateness of X-radiation treatment for plaintiffs’ complaints. Indeed, plaintiffs do not allege any distinction between the X-radiation they received and all other X-radiation. Accordingly, we must conclude that the plaintiffs are concerned with the conduct of defendant rather than the nature of a particular product. In this regard this case differs markedly from Cunningham.

This court has long recognized a remedy for injuries resulting from negligent conduct in the sphere of medical practice. However, it has equally long been recognized that medical practitioners are to be held only to the standard of reasonable skill and are not expected to manifest the highest skill or insure a particular result. (See, e.g., Ritchey v. West (1860), 23 Ill. 329; McNevins v. Lowe (1866), 40 Ill. 209.) Cunningham v. MacNeal Memorial Hospital did not alter that rule in holding the doctrine of strict liability in tort applicable to the sale of containers of contaminated blood by a hospital. The holding of Cunningham was made especially clear in that regard by the emphasis given the fact that the blood in question was “physical material which was bad.” See 47 Ill. 2d 443, 451, quoting Perlmutter v. Beth David Hospital (1954), 308 N.Y. 100, 111, 123 N.E.2d 792, 798 (Froessel, J., dissenting).

Viewing plaintiffs’ allegations in light of the foregoing, we are of the opinion that they have alleged acts for which a sufficient remedy is already afforded in the law of negligence. We are unable to say that the allegations in question are sufficiently related to “physical material which is bad,” to justify the application of strict liability principles, which are themselves focused on “products” and independent of articulated standards of conduct. See Restatement (Second) of Torts, section 402A, comment a (1965).

In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 619, the court advanced as one of the principal reasons for the rule of strict liability in tort the “public interest in human life and health.” This concept has its origins in cases discussing implied warranties. In Wiedeman v. Keller (1897), 171 Ill. 93, 99, for instance, this court dealt with the implied warranty of wholesomeness in food. There it was said, as justification for abrogation of the rule of caveat emptor:

“Where *** articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased.” 171 Ill. 93, 99.

In cases involving goods and other tangible physical materials which are in some way bad, imposition of liability unquestionably enhances the public interest in human life and health. However, in cases which deal with the conduct of individuals or institutions which themselves are pledged to protect human life and health, precautions must be taken to avoid an ultimate diminution of protection. The possibility that in certain cases protection of human life and health might be diminished by the imposition of liability has been recognized in section 402A of the Restatement. Comment k indicates that certain products, though dangerous, are necessarily so and do not warrant the imposition of liability. In amplifying on that aspect of 402A, Professor Prosser said:

“The argument that industries producing potentially dangerous products should make good the harm, distribute it by liability insurance, and add the cost to the price of the product, encounters reason for pause, when we consider that two of the greatest medical boons to the human race, penicillin and cortisone, both have their dangerous side effects, and that drug companies might well have been deterred from producing and selling them.” (Prosser, Torts 661 (4th ed. 1971).)

Professor Prosser and comment k presume in their treatments that the denomination “product” has already been applied to the matter in question. Nevertheless, imposition of strict liability is a question of policy, and often the same policy concerns are involved in discussions which are ostensibly diverse, for example: the meaning to be given such terms as “product,” “defective,” “unreasonably dangerous,” and “business of selling.” (See Restatement (Second) of Torts sec. 402A (1965).) For the reasons stated we conclude that public policy dictates against the imposition of strict liability in tort for injuries resulting from the administration of X-radiation treatments by a hospital.

Defendant next argues that, in reversing the summary judgment on the basis of the affidavit of plaintiffs’ expert, the appellate court expanded the law of negligence so as to “modify the evidence required to establish a violation of the standard of care applicable to a hospital.” Defendant contends that the appellate court’s holding that plaintiffs’ expert was qualified to testify contravenes this court’s holding in Dolan v. Galluzzo (1979), 77 Ill. 2d 279. In that case we held that an expert witness, in order to testify concerning the standard of care to be exercised by a podiatrist, must be licensed in the school of medicine of which the defendant was a member. (77 Ill. 2d 279.) The court said:

“The rationale of the general rule restricting expert testimony regarding the standard of care owed by a practitioner of a certain school of medicine is that ‘there are different schools of medicine with varying tenets and practices, and that inequities would be occasioned by testing the care and skill of a practitioner of one school of medicine by the opinion of a practitioner of another school.’ [Citation.] The practitioner of a particular school of medicine is entitled to have his conduct tested by the standards of his school.” 77 Ill. 2d 279, 283.

Defendant reasons that inasmuch as Eli Port is not a practitioner of any school of medicine he should not be permitted to testify concerning conduct which involves a medical judgment. In Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, this court was required to decide what evidence was admissible in determining the standard of care applicable to a hospital. There the defendant argued that the standard of care was determined by the custom of hospitals in the community. The court rejected custom as the sole determinant of the standard of care, saying:

“In the present case the regulations, standards, and by laws which the plaintiff introduced into evidence, performed much the same function as did evidence of custom. This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known.” (33 Ill. 2d 326, 332.)

It was also noted:

“ ‘*** Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of “hospital facilities” expects that the hospital will attempt to cure him, not that its nurses or other employes will act on their own responsibility.’ (Fuld, J., in Bing v. Thunig, (1957) 2 N.Y. 2d 656, 143 N.E.2d 3, 8.) The Standards for Hospital Accreditation, the state licensing regulations and the defendant’s bylaws demonstrate that the medical profession and other responsible authorities regard it as both desirable and feasible that a hospital assume certain responsibilities for the care of the patient.” (33 Ill. 2d 326, 332.)

As Darling made clear, a modem hospital such as defendant is an amalgam of many individuals not all of whom are licensed medical practitioners. Moreover, it is clear that at times a hospital functions far beyond the narrow sphere of medical practice. Accordingly, while various medical judgments are necessarily a daily part of hospital administration, they do not constitute the entirety of a hospital’s function, as is the case with single medical practitioners. Thus, we deem it appropriate to the diversity inherent in hospital administration that a broad range of evidence be available to establish the applicable standard of care. While plaintiffs’ expert is not a medical practitioner, he is nonetheless highly qualified and familiar with radiation therapy in hospitals. We hold that the mle of Dolan is inapplicable to the facts of this case.

We are not confronted with nor do we here decide the question whether Port’s testimony, assuming that it will conform to his affidavit, is sufficient to show defendant’s failure to exercise the necessary degree of care. We hold only that it is sufficient to raise a genuine issue of fact concerning the matters to which Dr. Cohen testified in his deposition and to which he referred in his affidavits.

Defendant next contends that “the standard of care for doctors and hospitals should be the same,” and relies on Dolan and Walski v. Tiesenga (1978), 72 Ill. 2d 249, for the proposition that expert medical testimony is the only acceptable testimony for establishing that standard. In Walski the plaintiff’s medical experts failed to testify that the defendant physicians breached the applicable standard of care. There was no testimony offered by a nonmedical expert and no hospital was involved. Accordingly, we find Walski inapplicable to the facts of this case. As we have indicated, both in Darling and here, the standard of care applicable to a hospital may be proved via a number of evidentiary sources. The appellate court correctly reversed the summary judgment entered by the circuit court.

Finally, plaintiffs argue that the circuit court erred in dismissing certain counts because the administration of the X-radiation here was within the exclusive control of defendant, and the doctrine of res ipsa loquitur should apply so as to require defendant to explain the injury resulting from the radiation. Plaintiff contends that these cases are analogous to radiation burn cases wherein the doctrine was applied. See, e.g., Holcomb v. Magee (1920), 217 Ill. App. 272; Johnson v. Marshall (1926), 241 Ill. App. 80; Adamsen v. Magnelia (1935), 280 Ill. App. 418; Shockley v. Tucker (1905), 127 Iowa 456, 103 N.W. 360; Jones v. Tri-State Telephone & Telegraph Co. (1912), 118 Minn. 217, 136 N.W. 741.

The circuit court declined to apply res ipsa loquitur, saying in its memorandum opinion:

“ [W] ithout the benefit of medical expert testimony, it is concluded that the knowledge in this case would certainly fall outside the scope of the knowledge of a layman. Therefore the counts based on res ipsa loquitur are dismissed and it is so ordered.”

In Walker v. Rumer (1978), 72 Ill. 2d 495, we said:

“The requirement for the application of the doctrine of res ipsa loquitur is not that the [medical procedure involved] be ‘commonplace’ or that the ‘average person’ be able to understand what is involved; the determination which must be made as a matter of law is whether ‘the occurrence is such as in the ordinary course of things would not have happened’ if the party exercising control or management had exercised proper care. That determination may rest either upon the common knowledge of laymen or expert testimony.” 72 Ill. 2d 495, 500.

The allegations on which plaintiffs’ res ipsa loquitur arguments are founded are as follows:

“3. That the Defendant, MICHAEL REESE HOSPITAL AND MEDICAL CENTER, a corporation, were in the sole use, possession, operation, maintenance and control of said x-ray machines, appurtenances and the dosages and the frequency of the dosages to be administered through the said x-ray machine and appurtenances; that said x-ray machine, appurtenances and dosages and frequency thereof if administered might or could produce cancer or cancerous conditions in the person of the plaintiff; that such applications of said x-rays were carelessly, negligently, done and performed.
4. That by reason of said negligence in connection with the x-ray machine, appurtenances and dosages the plaintiff was caused to get cancer.”

In Walker, by comparison, the plaintiff alleged:

“(5) That from July 18, 1974 and thereafter, the plaintiff and all instrumentalities were under the exclusive control, care, custody and supervision of the defendant;
(6) That while the plaintiff was under the exclusive control, care custody and supervision of the defendant, the plaintiff in some manner unknown to her sustained severe and permanent injuries to both of her hands;
(7) That said injuries were the result of carelessness and negligence of the defendant; ***.” (72 Ill. 2d 495, 498.)

These allegations were held sufficient to state a cause of action based on res ipsa loquitur. In this case as in Walker, we are unable to say that no set of facts can be proved which will entitle plaintiff to recover. (Winnett v. Winnett (1974), 57 Ill. 2d 7; Miller v. DeWitt (1967), 37 Ill. 2d 273.) Accordingly, the circuit court erred in dismissing the counts in question.

For the reasons stated the judgment of the appellate court is affirmed in part and reversed in part and the causes remanded to the circuit court of Cook County for further proceedings.

Affirmed in part and reversed in part and remanded.


source: Caselaw Access Project

author: MR. JUSTICE WARD MR. JUSTICE MORAN,

license: Public Domain

text:
    (No. 52638.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID B. LEWIS, Appellee.

      Opinion filed October 17, 1980.
    Rehearing denied November 26, 1980.

      MORAN, J., dissenting.
    William J. Scott and Tyrone C. Fahner, Attorneys General, of Springfield, and Nicholas G. Byron, State’s Attorney, of Edwardsville (Donald B. Mackay, Melbourne A. Noel, Jr., and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., and Gillum Ferguson, of the State’s Attorneys Appellate Service Commission, of Mount Vernon, of counsel), for the People.
    Donald E. Groshong, of Groshong & Moorman, Ltd., of East Alton, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

After a jury trial in the circuit court of Madison County the defendant, David B. Lewis, was found guilty of the unlawful possession of cannabis with intent to deliver it in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 705(e)). Judgment was entered on the verdict, and the defendant was sentenced to three years’ imprisonment. The appellate court reversed (75 Ill. App. 3d 1009), and we granted the State’s petition for leave to appeal. 73 Ill. 2d R. 315.

The proceedings against the defendant commenced with the filing of an information charging that he knowingly and unlawfully delivered more than 500 grams of a substance containing cannabis in violation of section 5(e) of the Act. Section 5 makes unlawful the delivery of cannabis, prescribing different penalties whose severity varies with the amount involved. Section 5(e) provides:

“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this section with respect to:
***
(e) more than 500 grams of any substance containing cannabis is guilty of a Class 2 felony.” Ill. Rev. Stat. 1979, ch. 56%, par. 705(e).

A Class 2 felony provides for a determinate sentence of not less than three years and not more than seven years. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(5).

The testimony presented on behalf of the prosecution was that the person to whom the defendant was charged with having delivered the cannabis was an undercover police officer. The officer had arranged a rendezvous for the purpose of purchasing a specified quantity of cannabis from the defendant at an agreed price. When the defendant arrived at the rendezvous in a van containing the cannabis, a second undercover agent handed the defendant a portion of the agreed purchase price, but the officers disclosed their identity and placed the defendant under arrest before the cannabis was physically transferred to them.

At the close of the prosecution’s case the defendant moved for a directed verdict of not guilty on the ground that no delivery had been proved. The motion was denied. The defendant announced that he would not present any evidence, and renewed his motion, which was again denied. The case then went to the jury, which, over the objections of the defendant, was instructed on both the offense of delivery and the offense of possession with the intent to deliver. The jury returned a guilty verdict as to each offense. Following motions by the defendant for a new trial and in arrest of judgment, the trial court set aside the verdict finding the defendant guilty of delivery. The court let stand, however, the verdict finding the defendant guilty of possession with intent to deliver, and entered judgment upon it.

The principal issue upon appeal is the defendant’s contention that he could not be convicted of the offense of possessing cannabis with intent to deliver it since the information did not charge him with that offense. The constitution and statutes of this State provide, of course, that no person shall be convicted of an offense which he has not been charged with having committed. (Ill. Const. 1970, art. I, secs. 2, 7, 8; Ill. Rev. Stat. 1979, ch. 38, pars. 111 — 3, 113 — 1, 113 — 4.) As was held in People v. Lewis (1940), 375 Ill. 330, however, at common law a defendant might be convicted of a lesser offense if each element of the offense was a necessary ingredient of an offense of higher degree with which he had been charged, and this court held that that principle did not violate due process. 375 Ill. 330, 334-35.

The principle of the common law doctrine is now embodied in section 2 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 9), which provides:

“Included offense” means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.”

Section 2 — 9 is implemented by section 3 — 4 of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4), which provides that the conviction of an included offense operates as an acquittal of the offense charged, thus barring a subsequent prosecution for the latter. It will be observed that the characterization of an included offense as being the “lesser” offense, found in many opinions, has not been made a part of section 2 — 9.

In reversing the judgment of the trial court the appellate court, without referring to section 2 — 9, held that the offense of possessing cannabis with the intent to deliver it was not an included offense of the delivery of the same cannabis. We agree with the State that the appellate court erred in this respect.

The principle that a defendant may be convicted of an included offense has been recognized in many contexts, but neither party has called our attention to any case considering whether possession with intent to deliver is an included offense of the offense of delivery where the defendant was charged only with delivery and not with possession with intent to deliver.

We consider that People v. King (1966), 34 Ill. 2d 199, is dispositive, however. That decision involved the former Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, pars. 22 — 1 through 22 — 49.1), which was repealed in 1971 (1971 Ill. Laws 1538, 1571). Section 3 of that act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 3) made it unlawful for any person to manufacture, possess, have under his control, or sell any narcotic drug, except as authorized in the Act. The court held that the sale of a drug, the offense with which the defendant had been charged, necessarily presupposed his possession of it, and that the proof of the defendant’s intent and capacity to exercise control over the object of the sale which was requisite to establish a sale would also suffice to show the offense of possession. 34 Ill. 2d 199, 201.

Section 5 of the Cannabis Control Act speaks in terms of delivery rather than sale, and section 3(d) (Ill. Rev. Stat. 1979, ch. 56:/2, par. 703(d)) defines “delivery” as “the actual, constructive or attempted transfer of possession.” What was said in King concerning the included relationship between possession and sale under the former Uniform Narcotic Drug Act is equally applicable to the relationship between delivery and simple possession under the present act, and the defendant could thus have been convicted under section 4 of the Act (Ill. Rev. Stat. 1979, ch. 5614, par. 704), which makes simple possession unlawful and subject to penalties, although the latter are less severe than those prescribed by section 5. It is a violation of section 5, however, of which the defendant was convicted.

A conviction for delivery would necessarily require proof that the delivery was voluntary, or intentional, nevertheless, and it follows that the defendant must have had an intent to deliver the cannabis at the time that he did so. The reasoning of King thus leads to the conclusion that possession with intent to deliver is as much an included offense as is possession alone.

It is of course true that a person might acquire and possess cannabis for the purpose of personal use, or, if the requisite authorization from the Department of Law Enforcement has been obtained, for the purpose of research (Ill. Rev. Stat. 1979, ch. 5614, par. 711). Jn the latter case the possession would be lawful, and in either case an intent to deliver would at that point be lacking. That consideration is irrelevant, however, for if the cannabis is subsequently delivered, the element of intent to deliver will have been supplied, as has just been noted.

The defendant cites cases from other jurisdictions under statutes regulating the possession and delivery of narcotics where it was held that a defendant may validly be convicted and punished for both offenses where both the offense of sale or delivery and the offense of possession or possession with intent to deliver are charged. The defendant points out that this result is based on the premise that possession with intent to deliver is not an included offense of delivery. See, e.g., Gee v. State (1969), 225 Ga. 669, 673-74, 171 S.E.2d 291, 295; State v. Cameron (1973), 283 N.C. 191, 202, 195 S.E.2d 481, 488-89; State v. Davis (1975), 68 N.J. 69, 82-83, 342 A.2d 841, 847-48; United States v. Horsley (5th Cir. 1975), 519 F.2d 1264; cf. State of Evans (1976), 219 Kan. 515, 517-18, 548 P.2d 772, 776.

We are, of course, not confronted here with the situation of multiple convictions or punishments, but we note that other courts, in dealing with that situation, have reached a result contrary to that in the decisions cited by the defendant. (See, e.g., People v. Martin (1976), 398 Mich. 303, 247 N.W.2d 303; People v. Stewart (1977), 400 Mich. 540, 256 N.W.2d 31; Jackson v. State (Wyo. 1974), 522 P.2d 1356; United States v. Oropeza (9th Cir. 1977), 564 F.2d 316.) The defendant’s arguments do not in any event persuade us either that People v. King is not controlling or that that decision should not be adhered to.

The defendant also urges, as he did in the appellate court, that his conviction was improper because the jury did not find that the weight of the substance containing the cannabis exceeded 500 grams. This omission is said to be significant because section 5 of the Act provides graduated penalties according to the weight, ranging downward from a Class 2 felony for over 500 grams to a Class B misdemeanor if the weight is not more than 2.5 grams. It does not appear from the record that there was any dispute as to the weight involved, nor did the defendant tender an instruction on that subject. The charge was that over 500 grams were involved, and under these circumstances the general verdict returned by the jury was sufficient to support a conviction of violating section 5(e).

For the reasons given the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE MORAN,

dissenting:

A criminal offense in Illinois requires two basic elements: (1) a voluntary act and (2) the requisite mental state. (Ill. Rev. Stat. 1979, ch. 38, pars. 4 — 1, 4 — 3.) (The exception to the necessary-mental-state requirement is when the legislature imposes absolute liability on a particular voluntary act (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 9).) Section 4 — 3(a) of the Criminal Code of 1961 provides that one cannot be guilty of an offense unless he acts with one of the following mental states: intent (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6) or negligence (Ill. Rev. Stat. 1979, ch. 38, par. 4-7).

The statute with which we are concerned in this case provides:

“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. ***” (Ill. Rev. Stat. 1979, ch. 5614, par. 705.)

The court’s opinion states, “A conviction for delivery would necessarily require proof that the delivery was voluntary, or intentional, nevertheless, and it follows that the defendant must have had an intent to deliver the cannabis at the time that he did so.” (83 Ill. 2d at 302.) In the situation that confronts us, however, no delivery occurred. Consequently, there is no delivery from which the intent to deliver can be inferred. Further, the quoted language deviates from the statutory constraints of article 4 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 1 et seq.) in two respects. First, to support an unlawful-delivery conviction, the delivery must be voluntary and accompanied by a requisite mental state. Second, defendant must have one of the necessary mental states. That mental state is clearly delineated in section 5 of the Cannabis Control Act: “It is unlawful for any person knowingly to manufacture, deliver, ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 5614, par. 705.) All that is necessary to support a delivery conviction is a voluntary act accompanied by knowledge, not intent, of delivery.

The majority relies on People v. King (1966), 34 Ill. 2d 199, in holding that possession with intent to deliver is an included offense of delivery. In King, the defendant was charged with the unlawful sale of a drug. The court held that unlawful possession could be inferred from the unlawful sale. The statute on which King was based, however, differs in a significant respect from the statute that confronts us here. King involved the former Uniform Narcotic Drug Act, section 3 (Ill. Rev. Stat. 1961, ch. 38, par. 22 — 3), which provided in pertinent part:

“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 in this Act.”

As can be observed, no mental state is expressed. However, section 4 — 3(b) of the Code, in existence then and identical to the provision now in effect, stated, “If the statute does not prescribe a particular mental state applicable to an element of an offense ***, any mental state defined in Sections 4 — 4 [intent], 4 — 5 [knowledge] or 4 — 6 [recklessness] is applicable.” (Ill. Rev. Stat. 1961, ch. 38, par. 4 — 3(b).) Accordingly, the court found that the mental state required for unlawful possession could be inferred from the same mental state that had to be proved to support an unlawful-sale conviction.

Since the King decision, the legislature enacted the present Cannabis Control Act. The pertinent provision provides:

“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. ***” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 56%, par. 705.)

Here, a delivery conviction requires knowledge — a general intent — whereas possession with intent to deliver requires specific intent, a different mental state. The statutory language is not analagous to that in the former Uniform Narcotic Drug Act, and the court’s reliance upon King is, therefore, misplaced.

Specific intent is a more culpable mental state than knowledge and, therefore, possession with intent to deliver cannot be an included offense of delivery. In the instant case, because possession with intent to deliver is not an included offense of delivery, the defendant should have been separately charged with that offense. As stated by the majority, the constitution and statutes of this State provide that a person shall not be convicted for an offense with which he has not been charged.

For 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.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE MORAN,

text:
    (No. 52443.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAKE WALKER, Appellee.

      Opinion filed October 17, 1980.

      MORAN, J., dissenting.

      William J. Scott, Attorney General, of Springfield, and Patrick Walsh, State’s Attorney, of Decatur (Donald B. Mackay, Melbourne A. Noel, Jr., and Neal B. Good-friend, Assistant Attorneys General, of Chicago, and Marc D. Towler, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Jeffrey D. Foust, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Jake Walker, was charged by information in the circuit court of Macon County with three counts of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2) and one count of attempted murder (Ill. Rev. Stat. 1975, ch. 38, par. 8 — 4). Defendant pleaded guilty to all charges, and the circuit court entered judgment thereon and imposed an 8- to 24-year term of imprisonment on each count, to be served concurrently. Defendant filed motions to withdraw his guilty plea and to reduce sentence but informed the circuit court that he actually desired only a reduction of sentence and that he moved to withdraw his guilty plea only because he perceived such a motion to be a prerequisite to appellate review. (See 73 Ill. 2d R. 605 (b)(2).) The circuit court felt that it could not reduce sentence unless the judgment of conviction were vacated, and it accordingly denied relief. On appeal by defendant, the appellate court, in a Rule 23 order (73 Ill. 2d R. 23), vacated the circuit court’s order denying defendant’s motion for reduction of sentence, and it remanded the cause to the circuit court with directions to address that motion. (59 Ill. App. 3d 1115.) On remand, the circuit court denied the motion. Defendant again appealed, alleging only that his sentence was excessive. The appellate court, again in a Rule 23 order, sua sponte reversed the judgment of conviction and sentence on the attempted murder charge, finding that the information charging that offense was defective because it failed to allege that defendant acted with intent to kill. (72 Ill. App. 3d 1110; see People v. Harris (1978), 72 Ill. 2d 16; People v. Trinkle (1977), 68 Ill. 2d 198.) The appellate court unanimously ruled that the information, because of the failure to allege the proper mental element, lacked the specificity required to enable defendant to prepare a defense. The appellate court also reduced defendant’s sentences on the three armed robbery convictions to 4 to 12 years because of the reversal of the attempted murder conviction and because defendant’s age of 15 years allowed him considerable potential for rehabilitation. One justice dissented from the court’s decision to reduce sentence. We allowed the State leave to appeal and now reverse.

On March 16, 1977, defendant was charged by information with three counts of armed robbery and one count of attempted murder. The attempted murder charge alleged that defendant, on February 28, 1977 “committed the offense of ATTEMPTED MURDER, in violation of Ch. 38, sec. 8 — 4, Ill. Rev. Stat. 1975, as amended, in that he, with the intent to commit the offense of Murder, did an act which constituted a substantial step toward the commission of said offense, namely: he, or another person for whose conduct he is responsible, while armed with a deadly weapon, namely: a handgun, struggled with Robert Barnett at the Owens Oil Station, located at 1175 East Grand Street, Decatur, Illinois, and fired the gun several times causing Robert Barnett to be shot in his head and shoulder, and causing Keith Fowler to be shot in his shoulder, all acts being performed while defendant knew they created a strong probability of death or great bodily harm.” Prior to the filing of the information, a determination had been made that defendant, 15 years old, would be tried as an adult.

On April 1, 1977, a preliminary hearing was conducted. Charles E. Boland, a Decatur police officer, described the details of the alleged offenses as related to him by the victims, service station attendants Robert Barnett and Keith Fowler. According to Barnett and Fowler, a male and female entered the station and demanded money. The male, identified subsequently as defendant, carried a small-caliber gun. Barnett and Fowler both relinquished an unspecified amount of money, Barnett apparently relinquished his wallet, and defendant and his accomplice began backing out of the station. Barnett grabbed defendant, and in an ensuing struggle, defendant fired the gun approximately four times. Fowler was wounded twice, once in each shoulder. The record also indicates that Barnett was also wounded during the struggle, once in the head and once in a shoulder. As defendant fled, he turned briefly to' say something to Barnett and to shoot at him, again hitting him in the head. Defendant’s female accomplice had fled before any shots were fired.

The female accomplice, Clara Horton, was subsequently interviewed by Officer Boland, and she admitted participating in the offense and identified defendant as the other participant. Horton told Boland that the idea for the robbery was conceived when she told defendant that she needed money, and defendant suggested the service station. Horton, 18 years of age, pleaded guilty to one count of robbery and received a sentence of 2V% to 10 years’ imprisonment.

Defendant was arraigned immediately following his preliminary hearing, and he entered a plea of not guilty to all charges. Approximately two months later, on May 31, 1977, defendant informed the circuit court that he desired to change his plea to guilty and to abandon various pretrial motions filed on his behalf. Defense counsel informed the court that defendant was pleading guilty against the advice of counsel, and counsel questioned defendant in open court concerning defendant’s decision to plead guilty. Defendant acknowledged counsel’s opinion that two pretrial motions on file were meritorious and that the sentence recommended by the State, 10 to 30 years, was excessive. Defendant nonetheless persisted in pleading guilty. The court inquired into defendant’s understanding of the charges and proceedings, and defendant was then admonished of the rights that he was waiving by pleading guilty (see 73 Ill. 2d R. 402). The court twice recited the attempted murder charge in substantially the same language as is contained in the information, and a factual basis for the plea was read into the record, largely reiterating the preliminary hearing testimony of Officer Boland. The factual basis also indicated that, in shooting Robert Barnett while fleeing from the service station, defendant stood 6 to 10 feet away and said, “You didn’t think I would really shoot you, did you?” Following recital of the factual basis, the circuit court accepted defendant’s plea of guilty and entered judgment on the plea.

A sentencing hearing was held on June 16, 1977, and the report of an investigating probation officer was presented to the court in which it was recommended that defendant not be granted probation. The report indicated that neglect petitions had been filed against defendant in 1972, 1973 and 1974, apparently based on some substantive charge against defendant. (See Ill. Rev. Stat. 1975, ch. 37, par. 702 — 4(l)(b).) The report also indicated that defendant was found delinquent in 1975 on a charge of theft under $150. Pursuant to the 1975 finding of delinquency, defendant was committed to the Department of Corrections, and he was on parole from that commitment at the time of the offenses now in question.

Citing defendant’s recent history of involvement with the juvenile court and the seriousness of the offenses charged, the State recommended a term of imprisonment of 10 to 30 years. Defense counsel objected, pointing out that codefendant Clara Horton had received a sentence of only 2Vz to 10 years. Defense counsel also asked the court to consider that defendant was only 15 years old and exhibited rehabilitative potential, as evidenced by his unwavering desire to plead guilty in the face of counsel’s representations that defendant’s pretrial motions were meritorious. The court rejected defense counsel’s argument that defendant should receive a sentence similar to that received by codefendant Horton, pointing out that defendant, unlike Horton, wielded and used a gun and that defendant, unlike Horton, was charged with and pleaded guilty to attempted murder. The court entered concurrent sentences of 8 to 24 years on each count, finding that imprisonment was necessary for the protection of the public; that defendant was in need of correctional treatment that could best be provided if defendant were imprisoned; that probation or conditional discharge would deprecate the seriousness of the offense and would be inconsistent with the ends of justice; and that a minimum term of eight years would allow the Department of Corrections sufficient time to assess defendant’s rehabilitative potential and to implement corrective measures. After sentencing defendant, the circuit court read Supreme Court Rule 605(b) to defendant, thereby advising him, inter alia, that the right to appeal from a plea of guilty is conditioned upon the filing and denial of a motion to vacate judgment and withdraw the plea and that “any issue or claim of error not raised in the motion *** shall be deemed waived.” 73 Ill. 2d R. 605(b)(6).

We address first the question of whether defendant has waived his challenge to the sufficiency of the attempted murder charge. As the State points out, defendant made no pretrial attack on the charge and did not raise the issue in his motion to vacate his guilty plea or in either of his two appeals to the appellate court. In most instances, such omissions by a defendant waive his right to raise an issue on appeal. In People v. Roberts (1979), 75 Ill. 2d 1, for example, we held that a defendant’s failure to challenge an attempted murder instruction at trial waived consideration on appeal (75 Ill. 2d 1, 14-15) and that a defendant’s failure to challenge an attempted murder conviction on direct review of his conviction barred relief under the Post-Conviction Hearing Act (75 Ill. 2d 1, 10). We are dealing here, however, with an allegation, albeit made by defendant for the first time in this court, that the information charging him with attempted murder is void because it fails to correctly allege the offense. While technical defects in a charge are waived if not challenged in the circuit court (People v. Clark (1963), 30 Ill. 2d 67, 73; People v. Barney (1959), 15 Ill. 2d 503, 507), 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 (People v. Heard (1970), 47 Ill. 2d 501, 505; People v. Minto (1925), 318 Ill. 293, 296; see also Ill. Ann. Stat., ch. 38, par. 114 — 1, Committee Comments, at 197-98 (Smith-Hurd 1977)). We therefore hold that defendant has not waived his challenge to the sufficiency of the attempted murder charge. The allegation that a charge is void is an allegation of a substantial defect that cannot be waived. (73 Ill. 2d R. 615(a).) We therefore proceed to the merits of the argument.

As the court held in People v. Pujoue (1975), 61 Ill. 2d 335, 339, the omission of a material element does not per se render a charge void, and when challenged for the first time on appeal, a charge will be held “sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow the pleading of a resulting conviction as a bar to future prosecution arising out of the same conduct.” (See also People v. Rege (1976), 64 Ill. 2d 473, 478; People v. Gilmore (1976), 63 Ill. 2d 23, 28-29.) The State argues that, in the application of this standard, the appellate court erred in holding that defendant was not sufficiently apprised of the nature of the attempted murder charge to enable him to prepare a defense. Defendant, to the contrary, argues that he may have defended on the basis of an absence of an intent to kill if the charge had properly informed him that such an intent is an essential element of the offense. Given the facts of the case, there is no arguable merit to defendant’s suggested defense, and we agree with the State that defendant therefore was not prejudiced by the faulty charge. In rhetorically asking Barnett whether he thought defendant would shoot him, defendant acknowledged his intent to shoot Barnett. The ensuing shot to the head from a distance of 6 to 10 feet leaves no doubt that defendant intended to administer a coup de grace, having already twice shot Barnett, once in the head and once in the shoulder. The intent to kill is clear (People v. Koshiol (1970), 45 Ill. 2d 573, 578), and the defect in the charge is therefore harmless (People v. Jones (1980), 81 Ill. 2d 1, 9-10).

Defendant nonetheless argues that the circuit court’s failure to admonish him of the proper mental element renders his guilty plea involuntary as violative of due process. The argument, however, was not contained in defendant’s motion to withdraw his guilty plea and may not be made for the first time in this court. (73 Ill. 2d R. 604(a).) Constitutional issues, as any issue, may be waived. (People v. Black (1972), 52 Ill. 2d 544, 553, cert. denied (1973), 411 U.S. 967, 36 L. Ed. 2d 689, 93 S. Ct. 2155; People v. Amerman (1971), 50 Ill. 2d 196, 197.) As can be seen from our discussion of the previous issue, the alleged defect in the circuit court’s admonishment of defendant is not substantial in character and therefore is not the type of issue we might review as an exception to the waiver principle. 73 Ill. 2d R. 615(a).

Finally, we agree with the State that the circuit court did not abuse its discretion in imposing upon defendant a term of imprisonment greater than that given codefendant Clara Horton. In seeking reduction of sentence, defendant makes the following self-contradictory argument: “Clara Horton and Jake Walker were similarly situated. They both pled guilty to charges arising out of the same robbery and shooting. The only difference in their involvement was that Jake Walker carried the gun, and thus, was the one who did the shooting.” Given the difference mentioned, it can hardly be said that defendant and Horton were similarly situated. Defendant’s longer sentence, based on the fact that he held a gun and did the shooting, was entirely justified. People v. Jackson (1970), 47 Ill. 2d 344, 348.

For the foregoing reasons, the judgment of the appellate court, reversing the judgment of the circuit court, is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE MORAN,

dissenting:

The 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.

In 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.)

The 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.

In 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).)

The 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).)

The 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.

For 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.