{ "id": 2896332, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AL ADAMS, Defendant-Appellant", "name_abbreviation": "People v. Adams", "decision_date": "1977-01-17", "docket_number": "No. 62389", "first_page": "334", "last_page": "338", "citations": [ { "type": "official", "cite": "45 Ill. App. 3d 334" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "123 Ill. App. 2d 138", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1580174 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/123/0138-01" ] }, { "cite": "53 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927719 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0460-01" ] }, { "cite": "61 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965685 ], "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0335-01" ] }, { "cite": "291 N.E.2d 189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2765306 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0805-01" ] }, { "cite": "86 S. Ct. 911", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "15 L. Ed. 2d 671", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "383 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197986, 6196996, 6197551, 6198191, 6198643, 6196501, 6197334, 6197783, 6198422, 6196761, 6198878 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/383/0918-07", "/us/383/0918-03", "/us/383/0918-05", "/us/383/0918-08", "/us/383/0918-10", "/us/383/0918-01", "/us/383/0918-04", "/us/383/0918-06", "/us/383/0918-09", "/us/383/0918-02", "/us/383/0918-11" ] }, { "cite": "210 N.E.2d 212", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "33 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884726 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/33/0048-01" ] }, { "cite": "357 N.E.2d 1166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "65 Ill. 2d 332", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435803 ], "weight": 3, "pin_cites": [ { "page": "338-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0332-01" ] }, { "cite": "222 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 2d 362", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2576888 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/76/0362-01" ] }, { "cite": "297 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852335 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0310-01" ] }, { "cite": "203 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "31 Ill. 2d 615", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2831338 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-2d/31/0615-01" ] }, { "cite": "268 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "48 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907836 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/48/0106-01" ] }, { "cite": "179 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2795447 ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0516-01" ] }, { "cite": "119 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "2 Ill. 2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12130359 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/2/0476-01" ] }, { "cite": "130 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2712461 ], "opinion_index": 0, "case_paths": [ "/ill-2d/7/0158-01" ] }, { "cite": "89 S. Ct. 1318", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1955, "opinion_index": 0 }, { "cite": "22 L. Ed. 2d 567", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1955, "opinion_index": 0 }, { "cite": "394 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6289763, 6287940, 6290730, 6288270, 6289487, 6290398, 6290074, 6289118, 6288607 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/us/394/0965-06", "/us/394/0965-01", "/us/394/0965-09", "/us/394/0965-02", "/us/394/0965-05", "/us/394/0965-08", "/us/394/0965-07", "/us/394/0965-04", "/us/394/0965-03" ] }, { "cite": "241 N.E.2d 419", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "41 Ill. 2d 7", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851872 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0007-01" ] } ], "analysis": { "cardinality": 613, "char_count": 10325, "ocr_confidence": 0.881, "pagerank": { "raw": 1.2401107716179486e-07, "percentile": 0.6077111059370642 }, "sha256": "1e9fe93c9ef7fe7dc20ab1de31e8dbd6260df3a563b1b0f3de3fa44fb66b2996", "simhash": "1:a0010cc5b67ec8a1", "word_count": 1789 }, "last_updated": "2023-07-14T17:15:00.202505+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. AL ADAMS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE BUA\ndelivered the opinion of the court:\nThe defendant was convicted at a bench trial of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18 \u2014 2.). On appeal he raises for the first time the contention that since the indictment speaks in terms of a taking of United States currency from the \u201cperson and presence\u201d of the victim, while the evidence showed only such a taking from the \u201cpresence\u201d of the victim, the conviction cannot stand.\nThe relevant facts are as follows. Estelle Echols, a State witness, testified that on February 13, 1974, she was washing windows on the second floor of an apartment building on South State Street in Chicago. The first floor of that building contained a record and novelty shop. She observed two men, whom she later identified as the defendant and a Mr. Christmas, talking in an alley adjacent to the building. One of the men held a gun in his hand. After a short time, Christmas left the defendant and entered State Street. The witness then heard \u201cscreaming\u201d and phoned the police.\nEathel Mitchell, the complaining witness, testified that on February 13, 1974, she was working with her mother, Nancy Abney, at her daughter\u2019s record and novelty store at 5444 South State Street in Chicago. At about 1:30 p.m. on that a day a man she later identified as a Mr. Christmas entered the store, announced a \u201choldup,\u201d and ordered the two women to lie down on the floor. The defendant then entered the store. He was also armed. Christmas proceeded to take about *7.50 from the cash register and about *550 from the back room of the store. The defendant broke into some glass display cases, and the two men removed various articles of merchandise and placed them in shopping bags.\nWhen police responding to a report of a robbery in progress arrived on the scene, the defendant and his accomplice escaped through the rear of the store.\nThe defendant and Christmas were arrested on February 21,1974. At a lineup both Estelle Echols and Eathel Mitchell identified the two men. Nancy Abney was able to identify only Christmas.\nPolice investigators found a bag of merchandise left in the store by the offenders. It was stipulated that fingerprints found on a certain item in that bag were those of the defendant.\nAt a joint bench trial the court acquitted Christmas of all charges but found the defendant guilty of armed robbery. On February 21,1975, he was sentenced to a term of imprisonment of from 5 to 9 years.\nThe defendant contends that since the indictment speaks in terms of a taking of a certain amount of United States currency from the \u201cperson and presence\u201d of Eathel Mitchell and the State offered no proof of such a taking from the \u201cperson\u201d of Eathel Mitchell, he was not proven guilty as charged of armed robbery beyond a reasonable doubt. We reject this argument. While it is true that a failure to prove a material allegation of the indictment is fatal to a judgment of conviction (People v. Tassone (1968), 41 Ill. 2d 7,241 N.E.2d 419 cert, denied, 394 U.S. 965,22 L. Ed. 2d 567, 89 S. Ct. 1318; People v. Walker (1955), 7 Ill. 2d 158,130 N.E.2d 182), an allegation is so deemed \u201cmaterial\u201d only if it is one which is essential to the crime or offense and without which the pleading would be insufficient. (People v. Taranto (1954), 2 Ill. 2d 476, 119 N.E.2d 221; People v. Figgers (1962), 23 Ill. 2d 516,179 N.E.2d 626.) One is guilty of armed robbery when he, while armed with a dangerous weapon \u201ctakes property from the person or presence of another by force or by threatening the imminent use of force.\u201d (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 38, pars. 18 \u2014 1 and 18 \u2014 2.) From this it is clear that if the reference to a taking from the person was stricken from the present indictment the offense of armed robbery would still be properly charged. While it might be argued that the allegation of a taking from the \u201cperson and presence\u201d must be viewed as an indivisible unit constituting a material allegation of the indictment, we are not so persuaded. We see no significant difference between the present situation and others in which an indictment, after properly charging all of the necessary elements of the offense, went on to include unnecessary specifics as to those elements or to allege further unnecessary matters which were never substantiated. (See People v. Simpkins (1971), 48 Ill. 2d 106, 268 N.E.2d 386; People v. Steenbergen (1964), 31 Ill. 2d 615, 203 N.E.2d 404; People v. Young (1973), 12 Ill. App. 3d 310,297 N.E.2d 578; People v. Brown (1966), 76 Ill. App. 2d 362, 222 N.E.2d 227.) The words \u201cperson and\u201d are not material to the. present indictment, but are mere surplusage, and as such may be ignored.\nFurther, it cannot be argued that there exists a \u201cvariance\u201d between the indictment and proof such as to warrant a reversal of the conviction.\nFirst, in light of the background of the terms \u201cperson\u201d and \u201cpresence\u201d as used in the armed robbery statute (Ill. Rev. Stat. 1973, ch. 38, pars. 18\u2014 1 and 18 \u2014 2) it is doubtful that in the present case a true \u201cvariance\u201d even exists. Prior to 1961 the statutory definition of armed robbery was cast in terms of a taking from the \u201cperson\u201d only. With the passage of the Criminal Code of 1961, that definition was revised to its present form. Among other changes made, the word \u201cperson\u201d was supplemented by the phrase \u201cor presence.\u201d (Ill. Rev. Stat. 1961, ch. 38, pars. 18 \u2014 1 and 18 \u2014 2.) The accompanying committee comment, especially when read in light of the prior case law, demonstrates that the phrase \u201cor presence\u201d was added to the definition merely to make the statute more explicitly reflect the breadth with which the courts had previously construed the term \u201cperson\u201d, rather than to denote a separate and distinctly conceived branch of or mode of committing the offense.\nIn light of the above, the defendant\u2019s argument is without merit. There cannot be said to be a \u201cvariance\u201d in the instant case. See People v. Johnson (1976), 65 Ill. 2d 332, 357 N.E.2d 1166.\nSecondly, even if a true variance is found to exist, it is not one fatal to the conviction. It has been held that a variance, when raised for the first time on appeal, will warrant reversal of a conviction only if it is material and of such a character as to mislead the accused in making his defense, or expose him to double jeopardy. (People v. Nelson (1965), 33 Ill. 2d 48, 210 N.E.2d 212, cert, denied, 383 U.S. 918,15 L. Ed. 2d 671,86 S. Ct. 911; People v. Bristow (1972), 8 Ill. App. 3d 805, 291 N.E.2d 189; People v. Johnson (1976), 65 Ill. 2d 332, 357 N.E.2d 1166. Johnson illustrates quite well the application of this principle. In that case, the defendant was charged with prostitution in that she \u201cagreed\u201d to perform an act of deviate sexual conduct, while the court found the evidence to show only that she \u201coffered\u201d to perform such an act. While either the offer or agreement alone would have constituted the crime of prostitution (Ill. Rev. Stat. 1975, ch. 38, par. 11 \u2014 14(a)(l)(2)), the defendant argued that a fatal variance existed. After finding a true variance as to this essential element of the offense, the court turned to the question of whether that variance was sufficiently prejudicial to the defendant to warrant a reversal of the conviction, and concluded:\n\u201cIn the case at bar, even more clearly than in Harris or Simpkins, defendant Johnson has not shown that she was prejudiced in the making of her defense by the variance between the charge and the proof. Like the defendants in Simpkins, she has not claimed that the language of the complaint induced her to withhold evidence. Nor had she alleged, as the Simpkins defendants did, that her defense turned upon the language used in the complaint. Johnson\u2019s defense was not that instead of agreeing to perform the alleged acts she only offered to do so. Such an offer in itself would be a violation of the statute. Her defense was that she never approached or had a conversation with Murcia prior to her arrest. Had the complaint charged that she made an offer to Murcia, instead of that she agreed, her defense would have remained unchanged. Since the only issue she contested was whether the encounter with Murcia ever took place, the distinction between the words \u2018offer\u2019 and \u2018agree\u2019 could not have misled her in preparing her defense.\nNor is defendant exposed to the possibility of double jeopardy. The complaint names the offense, the place, the date, and the person to whom defendant allegedly made the offer at issue. It is clearly sufficient to be pleaded in bar of another prosecution. (See People v. Pujoue, 61 Ill. 2d 335, 340.) Further, if any future prosecution were attempted, prior prosecution on the same facts may be proved by resort to the record. People v. Jones, 53 Ill. 2d 460; People v. Collins, 123 Ill. App. 2d 138.\u201d 65 Ill. 2d 332, 338-39.\nWe find this analysis to be fully applicable to the present case. There is no indication in the record that the discrepancy between the indictment and proof induced the defense to withhold any evidence. Nor would it appear that the defense presented was shaped by the precise language of the indictment. Adams\u2019 defense was that while he had visited the record and novelty shop on the day in question, he had committed no act of robbery there and that at 1:30 p.m. on that day, the time of the robbery, he was at home watching television. This defense would have been the same regardless of whether he was charged with a taking from the \u201cperson\u201d or from the \u201cpresence\u201d of Eathel Mitchell. Finally, there is no danger here of double jeopardy. The indictment correctly states the offense, the statutory section number, the date, the name of the victim, and what was taken.\nFor the above stated reasons, the judgment of the Circuit Court of Cook County is affirmed.\nAffirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE BUA" } ], "attorneys": [ "\u2022 James J. Doherty, Public Defender, of Chicago (Dennis E. Urban and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Eugene J. Rudnik, Jr., and Robert Handelsman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AL ADAMS, Defendant-Appellant.\nFirst District (1st Division)\nNo. 62389\nOpinion filed January 17, 1977.\n\u2022 James J. Doherty, Public Defender, of Chicago (Dennis E. Urban and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Eugene J. Rudnik, Jr., and Robert Handelsman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0334-01", "first_page_order": 364, "last_page_order": 368 }