Appeal from the Criminal Court of Cook County; the Hon. JOHN
GUTKNECHT, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 22, 1965.
Defendant was convicted of an attempt to rob and was sentenced to a term of four to seven years. Attempt is now established by statute as a distinct crime, and the offense here is designated in the pleadings and briefs as "attempt robbery." Section 8-4 Illinois Criminal Code (Ill Rev Stats c 38 § 8-4 (1963).)
The principal issue in this case, first raised on appeal, is that the crime was not adequately described in the indictment. Other issues are that the judge had a preformed opinion, and that the evidence is insufficient to support the conviction.
About 1:00 a.m. on June 2, 1962, five members of the Chicago Police Task Force Undercover Unit were on duty in the vicinity of 47th Street and Cottage Grove Avenue, in Chicago, Illinois. They were all dressed in ordinary street clothes. Two of them were riding in an unmarked gray car and the other three were singly walking east on 47th Street toward Cottage Grove Avenue. Officer Dan Antzoulatos had the front place and was walking east on the south side of 47th Street. Juan Gomez was a few feet behind him, and Officer Charles Gilmore was walking east on the north side of the street, but keeping watch on Officer Antzoulatos, the lead man. Officers Neary and Dolan were riding in the unmarked car, but also keeping watch on Antzoulatos.
At 47th Street and Cottage Grove Avenue, the defendant walked past Gomez toward Antzoulatos. The latter testified that when he was near to or in front of 805 East 47th Street, the defendant put his right hand around his neck, began choking him, put his left hand into his (Antzoulatos') left rear pocket, and said "Give me the money." Antzoulatos broke the man's hold and identified himself as a police officer, whereupon the alleged assailant attempted to run away. Antzoulatos struck him, and by that time had obtained assistance from the other officers, who closed in on the scene and subdued the defendant. The other officers corroborated Antzoulatos as to seeing the defendant come up behind him, put his arm around the latter's neck, and his left hand in the left rear pocket.
Defendant testified he thought Officer Antzoulatos was assailing his (defendant's) former girl friend, that he came up behind the officer, tapped him on the shoulder, and that the next thing he knew, the officer had attacked him. Defendant denied asking for money and denied attempting to rob the officer.
The pertinent part of the indictment is as follows:
". . . on the 2nd day of June, 1962 at and within said County (Cook) Edward Martin committed the offense of attempt, in that he, with the intent to commit the offense of robbery, attempted to take the property of Dan Antzoulatos by threatening the imminent use of force, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois."
The purpose of the constitutional guarantee of the right of the accused to demand the nature and cause of the charge against him, as provided by article II, section 9, of the Illinois Constitution, is to secure to the accused such specific declaration of the offense as will enable him fully to prepare for his defense and to plead judgment in bar of subsequent prosecution for the same offense. People v. Kessler, 48 Ill. App.2d 177, 198 N.E.2d 733; People v. Williams, 30 Ill.2d 125, 196 N.E.2d 483.
The indictment or information charging an offense defined by the statute should be as fully descriptive of the offense as the language of the statute and should allege the substantial elements of the offense defined in the statute. People v. Martin, 314 Ill. 110, 145 N.E. 395; People v. Barnes, 314 Ill. 140, 145 N.E. 391; People v. Powell, 353 Ill. 582, 187 N.E.2d 419. The defendant cannot lawfully be convicted of a crime not charged in the indictment. People v. Fore, 384 Ill. 455, 51 N.E.2d 548; People v. Brown, 312 Ill. 63, 143 N.E. 440. In the case of People v. Cohen, 303 Ill. 523, 135 N.E. 731, the court said, at p 525:
"Great niceties and strictness of pleading should only be countenanced and supported when it is apparent that the defendant may be surprised on the trial, or unable to meet the charge or make preparations for his defense for want of greater certainty or particularity. (Cannady v. People, 17 Ill. 158.) The criminal law is fast outgrowing those technicalities which grew up when the punishment for crime was inhuman and when it was necessary for the courts to resort to technicalities to prevent injustice from being done. Those times have passed, for criminal law is no longer harsh or inhuman, and it is fortunate for the safety of life and property that technicalities to a great extent have lost their hold."
Rigid requirements with respect to indictments and other technical requirements in criminal procedure come down to us from the days when many crimes now considered petty were subject to the penalty of death. As early as the Seventeenth Century, Sir Matthew Hale (Lord Chief Justice of England) made the following comment:
"That in favour of life great strictnesses have been in all times required in points of indictments, and the truth is, that it is grown to be a blemish and inconvenience in the law, and the administration thereof; more offenders escape by the over easy ear given to exceptions in indictments, than by their own innocence, and many times gross murders, burglaries, robberies, and other heinous and crying offenses, escape by these unseemly niceties to the reproach of the law, to the shame of the government, and to the encouragement of villany, and to the dishonour of God. And it were very fit, that by some law this over-grown curiosity and nicety were ...