{ "id": 2959586, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Althea Johnson, Defendant-Appellant", "name_abbreviation": "People v. Johnson", "decision_date": "1975-11-06", "docket_number": "No. 60740", "first_page": "38", "last_page": "42", "citations": [ { "type": "official", "cite": "34 Ill. App. 3d 38" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "185 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill.2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5353917 ], "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0400-01" ] }, { "cite": "310 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "18 Ill.App.3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2611240 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0851-01" ] }, { "cite": "152 N.E. 495", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "321 Ill. 552", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5168793 ], "opinion_index": 0, "case_paths": [ "/ill/321/0552-01" ] }, { "cite": "82 N.E. 226", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1926, "opinion_index": 0 }, { "cite": "229 Ill. 227", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5629896 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/ill/229/0227-01" ] }, { "cite": "292 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill.App.3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2847879 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0499-01" ] }, { "cite": "268 N.E.2d 192", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill.App.2d 551", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2908239 ], "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0551-01" ] }, { "cite": "75 S.Ct. 895", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "99 L.Ed. 1285", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1971, "opinion_index": 0 }, { "cite": "349 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11370404, 11370468, 11370633, 11370185, 11370123, 11370700, 11370319, 11370546, 11370044 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/349/0963-05", "/us/349/0963-06", "/us/349/0963-08", "/us/349/0963-03", "/us/349/0963-02", "/us/349/0963-09", "/us/349/0963-04", "/us/349/0963-07", "/us/349/0963-01" ] }, { "cite": "125 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "5 Ill.2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2704003 ], "year": 1971, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0384-01" ] } ], "analysis": { "cardinality": 521, "char_count": 8446, "ocr_confidence": 0.722, "pagerank": { "raw": 2.1022158625796253e-07, "percentile": 0.7619610255269709 }, "sha256": "de584e32e268bd159814a44b011bcdb3e041071bd673f073b33423eeb23f9dd2", "simhash": "1:64415c9ca614d1ff", "word_count": 1437 }, "last_updated": "2023-07-14T14:50:26.295263+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Althea Johnson, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nDefendant, Althea Johnson, was charged in a complaint with the offense of prostitution by agreeing to perform an act of deviate sexual conduct for money in violation of Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 14 (a)(2). After a trial without a jury she was found guilty and sentenced to serve 8 days in the Cook County House of Correction. Defendant appeals, contending that\n(1) Ill. Rev. Stat. 1973, ch. 38, par. 11 \u2014 14, is unconstitutional either on its face or as applied in the instant prosecution;\n(2) she was not proved guilty beyond a reasonable doubt;\n(3) the trial court erred in denying her motion for a new trial; and\n(4) a fatal variance existed between the charge in the complaint and the proofs adduced at trial.\nWe agree with defendant\u2019s final contention as to a fatal variance. Inasmuch as we therefore reverse, only those facts relevant to such issues are presented.\nIn the complaint Andrew Murcia, an investigator with the Vice Division of the Chicago Police Department, charged in pertinent part that on August 11, 1973, at 1300 North Clark Street, Chicago, in violation of chapter 38, section 11 \u2014 14(a)(2) of the Illinois Revised Statutes, defendant \u201ccommitted the offense of Prostitution (Deviate Sexual Conduct) in that she agreed to perform an act of deviate sexual conduct, Namely Oral Copulation with Andrew Muroia, for the sum of $50.00 U.S.C.\u201d\nAt trial, Andrew Murcia was the only witness for the State; he testified that at approximately 7 P.M. on August 11, 1973, he was approached by defendant as he was leaving his private car at 1300 North Clark Street. He was not then on duty but was on his way to the Ambassador East Hotel where he is employed as a part-time security officer. Defendant asked him if his nam,e was Mort Levy and he told her it was. She asked him if he remembered her and he said that she looked familiar. She then asked if he was busy and when he said he was not, she told him that if he wanted, she would give him a \u201cfrench\u201d for $50. Murcia testified that in his op:nion the term \u201cfrench\u201d is street slang for oral copulation. He stated that because he was alone he declined defendant\u2019s offer. Later he saw her enter a car being driven by a man, and he followed the vehicle in his own car to the vicinity of 3153 North Boardway, where he requested uniformed officers in a squad car to stop the car in which defendant and her companion were riding. The two were then placed under arrest and taken to police headquarters.\nOn cross-examination, Officer Murcia testified that he told defendant his name was Mort Levy because he wanted to go along with her, having some idea of what she had in mind. He stated that he declined her offer and did not arrest her at the initial meeting because it is not considered good police policy for one officer to arrest a woman. At the conclusion of Murcia\u2019s testimony, the State rested.\nDefendant and her companion, William Kraus, testified that they had left defendant\u2019s apartment and were chiving to a restaurant in the vicinity of the arrest. Defendant was employed by a company Kraus owned. She denied ever having seen Murcia prior to her arrest, and denied offering to \u201cfrench\u201d him for $50. The trial court found defendant guilty and sentenced her to serve 8 days in the House of Correction.\nIll. Rev. Stat. 1973, ch. 38, par. 11 \u2014 14, under which defendant was charged, provides: \u201c(a) Any person who performs, offers or agrees to perform any of the following acts for money commits an act of prostitution: (1) Any act of sexual intercourse; or (2) Any act of deviate sexual conduct.\u201d Defendant contends that a fatal variance resulted between the complaint, which charged that she agreed to perform an act of deviate sexual conduct, and the trial testimony of Andrew Murcia, which indicated that she only made an offer to perform such act. The State argues that at best only a minor variance is involved because the words \u201coffers\u201d and \u201cagrees\u201d as used in the statute are virtually synonymous and interchangeable.\nThe above-quoted paragraph 11 \u2014 14 sets forth one offense of prostitution. The offense is committed when any person \"performs, offers or agrees to perform\u201d either of the acts proscribed for money. The word \u201cor\u201d in the statute must be accorded significance; whenever this disjunctive is used, the members of the sentence it connects are to be taken separately. (See People v. Vraniak (1955), 5 Ill.2d 384, 389, 125 N.E.2d 513, cert. denied, 349 U.S. 963, 99 L.Ed. 1285, 75 S.Ct. 895; also People v. Spencer (1971), 131 Ill.App.2d 551, 553, 268 N.E.2d 192.) The legislative intention seems clear that the acts are not synonymous or interchangeable. Rather, it was the legislative purpose and intent that the offense defined would be committed in any one of the three ways: (1) performs, (or) (2) offers or (3) agrees to perform any act of sexual intercourse or of deviate sexual conduct for money. This construction is fully supported by the pertinent portion of the Committee Comments to the statute:\n\u201cThree verbs are employed to describe the actor\u2019s relation to the sexual acts described in subsections (a)(1) and (a)(2). The use of the word performs\u2019 enlarges the statutory law since no section previously in the statutes proscribed the actual performance of the sexual act for money. The verb offers\u2019 generally incorporates the former prohibitions on soliciting\u2019 but connotes less urging and invitation on the part of the prostitute. The word \u2018agrees\u2019 was included to cover the situation where the female simply makes it a practice of accepting properly endowed propositions and permits her reputation or availability to do her soliciting for her.\u201d S.H.A. ch. 38, par. 11 \u2014 14.\nThe employment in the instant statute of disjunctive acts, each constituting an alternative material element of the offense, renders this case analogous to People v. Priest (1972), 9 Ill.App.3d 499, 292 N.E.2d 518. There it was held that a fatal variance existed between a charge of unlawful possession of a firearm and a finding of guilty of unlawful possession of ammunition. In so holding, the court stated at pages 502-503:\n\u201cOne charged with a specific crime may not be found guilty of another even though the evidence might support such a finding. Lowell v. People (1907), 229 Ill. 227, 82 N.E. 226; People v. Day (1926), 321 Ill. 552, 152 N.E. 495.\nThe gravamen of the charge of possession under Section 83 \u2014 2 [Ill. Rev. Stat. 1971, ch. 38] is possession of a revolver and the finding of guilty of possession of ammunition constituted a fatal variance. The judgment of conviction of the offense of unlawful possession of ammunition is reversed.\u201d\nIn the instant case, the complaint charged that defendant committed an act of prostitution by agreeing to perform an act of deviate sexual conduct for money. At trial, Officer Murcia was the only witness who appeared for the State, and his testimony, if accepted at face value, clearly establishes that the defendant only offered to perform an act of deviate sexual conduct for money. Here, as in Priest, the evidence presented does not support a finding of guilty as to the charge in the complaint, and therefore resulted in a fatal variance.\nThe State also argues that because no objection was made to the variance in the trial court, the defendant has waived that issue for purposes of appeal. While the waiver principle controls in instances of negligible variances between a charge and the proofs adduced, we do not deem it applicable to the instant case in which there was a complete absence of evidence concerning a material element of the offense charged. (People v. Smith (1974), 18 Ill.App.3d 851, 310 N.E.2d 796.) The aHegation that defendant \u201cagreed\u201d was a material element of the charge which was not established. Essential elements of the charge must be proved without variance. People v. Mosby (1962), 25 Ill.2d 400, 403, 185 N.E.2d 152.\nFor the reasons stated, the judgment of conviction is reversed.\nReversed.\nMcGLOON, P. J., and DEMPSEY, J\u201e concur.", "type": "majority", "author": "Mr. JUSTICE MEJDA" } ], "attorneys": [ "Sam Adam, Edward M. Genson, and Theodore M. Becker, all of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Althea Johnson, Defendant-Appellant.\n(No. 60740;\nFirst District (3rd Division)\nNovember 6, 1975.\nSam Adam, Edward M. Genson, and Theodore M. Becker, all of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0038-01", "first_page_order": 64, "last_page_order": 68 }