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People v. Mcevoy

OCTOBER 22, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD MCEVOY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES N. SULLIVAN, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Richard McEvoy was charged with battery (Ill. Rev. Stat. 1973, ch. 38, § 12-3) and convicted by a jury. He was fined $100 and court costs. In this appeal he raises the following issues for review: (1) whether defendant was properly convicted of battery when the evidence introduced by the State proved a substantive offense other than the one charged in the complaint; (2) whether the trial judge committed reversible error in instructing the jury; and (3) whether the trial court committed reversible error by refusing to give an instruction on the law of justifiable use of force when defendant is not under arrest, is not being detained, and a police officer prevents his exit.

The relevant facts in this case are not in dispute. Defendant's brother was involved in an automobile accident and was taken to the police station for questioning. The defendant, a passenger in the vehicle, followed the police to the station and waited for his brother in the squadroom. After waiting for several minutes, the defendant became impatient and requested permission to see his brother. However, the defendant was told that he could not see his brother until the interview was completed. Defendant made a second request to see his brother, but it too was denied. The defendant then asked if he was under arrest and was told by an officer that he was not under arrest but was there for questioning. The defendant then announced that he was leaving but was told by an officer to sit down. When he started moving toward the exit, an officer stood in the doorway to prevent him from leaving. Defendant then shoved the officer back into a row of metal lockers.

After the altercation, defendant was taken to the cellblock. He was later informed that charges would not be brought against him and he would be released, if he would quiet down. Defendant, however, refused to leave and requested that he be charged. Charges were at that time filed against him.

The defendant argues that the trial court committed reversible error by convicting him of battery *fn1 when the evidence proved a substantive offense other than the one charged in the complaint. The complaint charged the defendant as follows:

"Richard T. McEvoy * * * committed the offense of battery in that he knowing James E. Janda to be a peace officer, while such James Janda was engaged in his official duties as a peace officer did intentionally and knowingly, without legal justification cause bodily harm by pushing with his hands on the chest of officer James Janda without legal justification in violation of Chapter 38, Section 12-3, Illinois Revised Statute, and against the peace and dignity of the People of the State of Illinois."

Defendant argues further that there was a variance between the facts proved and the offense charged and contends that the variance was fatal. (People v. Rivas (1955), 5 Ill.2d 556, 126 N.E.2d 638; People v. Merrill (1966), 76 Ill. App.2d 82, 87, 221 N.E.2d 145.) As a result of the fatal variance, defendant contends that he was prejudiced since the jury was never asked to consider the issue of bodily harm; the defendant was not given proper notice; the jury was misled as to the issues involved in the proof; and the defendant was placed in double jeopardy. Lastly, defendant argues that the State implicitly or indirectly amended the complaint by instructing on an alternative battery offense — contact of an insulting or provoking nature.

We think the substance of defendant's argument is that the complaint charged him with "contact causing bodily harm," but only proved "contact of an insulting or provoking nature." After reviewing the record, we find defendant's argument to be without merit.

• 1 A battery is a misdemeanor (People v. Basile (1968), 112 Ill. App.2d 108, 110, 251 N.E.2d 277) which consists of the willful touching of the person of another by the aggressor, or with some substance being put in motion by him in the consummation of an assault. (People v. Grieco (1970), 44 Ill.2d 407, 411, 255 N.E.2d 897, cert. denied, 400 U.S. 825, 27 L.Ed.2d 54, 91 S.Ct. 49.) To establish that there has been bodily harm in a battery case, there is no requirement that the evidence demonstrate a visible injury such as bruising, scratching or bleeding. People v. Smith (1974), 23 Ill. App.3d 769, 320 N.E.2d 172; People v. Lowe (1973), 12 Ill. App.3d 959, 299 N.E.2d 341.

In People v. Lowe (1973), 12 Ill. App.3d 959, 299 N.E.2d 341, a battery case, the charge was limited to one particular definition of battery, namely, causing bodily harm to the individual, and excluded the alternative definition of battery, making contact of an insulting or provoking nature. The court held that it was inconsequential that the complaint did not mention the words "insulting or provoking nature," in addition to describing defendant's alleged conduct and citing the specific criminal statute. Likewise is People v. Bowman (1971), 132 Ill. App.2d 744, 270 N.E.2d 285, a case relied on by Lowe. There, the defendants argued that since the complaints referred to striking the complainant "about the head and body and did not allege either the infliction of bodily harm or physical contact of an insulting or provoking nature," no statutory offense was charged. The court stated:

"It is not necessary that a complaint contain the precise language of the statute defining the offense if it describes the offense in language sufficiently explicit for the defendant to understand the nature and elements of the charge against him. [Citations.] The complaints stated the offense alleged to have been committed, cited the criminal statute which the defendants were accused of violating, and charged that the statute was violated due to the defendants striking the complainant about the head and body. The variance between the language of the complaints and that of the statute is inconsequential." 132 Ill. App.2d 744, 746.

• 2, 3 The defendant does not deny that he touched or made contact with the complainant — he argues that there was no proof of bodily harm. After examining the record, we do not think that it was unreasonable for the trial judge to find the defendant guilty by giving more weight to the testimony of the complaining witness than to that of defendant, nor do we think that the evidence was so unsatisfactory as to create a reasonable doubt of defendant's guilt. Since the complaint sufficiently particularized the crime by stating the offense, specifying defendant's conduct and citing the statute, thereby informing the accused of the nature of the charge (People v. Harvey (1973), 53 Ill.2d 585, 588, 294 N.E.2d 269), we do not think that he has any reason to complain. We think that the jury considered the issue of bodily harm and that they were not misled by the issues in the case. All the witnesses, including the defendant, testified that he pushed the officer in his chest. Consequently, we hold that this conduct comes within the purview of the statutory definition of bodily harm, that the complaint was sufficiently certain to enable the defendant to prepare a defense, and that this conviction will serve as a bar to a future prosecution for the same offense.

Finally, the cases relied on by defendant can be distinguished. Rivas can be distinguished on its facts — there, the indictment singled out a specific offense but the proof relates to other separate and distinct offenses. In the case at bar, the proof relates to the same transaction or occurrence specified in the complaint. Merrill, on the other hand, was a burglary case which raised the question of properly proving corporate existence. That case is clearly different from the instant case, and the variance therein was found to be inconsequential.

• 4 In his second point, the defendant argues that the court erred by giving an instruction which states, "a person commits the crime of battery who by any means knowingly or intentionally makes contact of an insulting or provoking nature with another person," while the complaint charged the defendant with "causing bodily harm." We think that the judge correctly informed the jury of the legal principles applicable to the facts in the case. In People v. Rosochacki (1969), 41 Ill.2d 483, 244 N.E.2d 136, where it was alleged that there was a ...


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