Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. David Cerda, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Defendant, Althea Johnson, was charged by complaint with the offense of prostitution in violation of section 11-14(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-14(a)(2)). After a bench trial in the circuit court of Cook County, the defendant was found guilty and sentenced to 8 days in the Cook County House of Correction. The appellate court reversed the defendant's conviction on the ground that a fatal variance existed between the charge in the complaint and the proof adduced at trial. (34 Ill. App.3d 38.) We granted the State leave to appeal.
The statute under which defendant was convicted provides:
"(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." Ill. Rev. Stat. 1975, ch. 38, par. 11-14(a).
In the complaint, a Chicago Police Department vice investigator, Andrew Murcia, charged that defendant "committed the offense of prostitution (deviate sexual conduct) in that she agreed to perform an act of deviate sexual conduct, namely oral copulation with Andrew Murcia, for the sum of $50.00 U.S.C." (Emphasis added.)
At trial, Murcia was the sole witness for the State. He testified that at approximately 7 p.m. on August 11, 1973, he was leaving his private car at 1300 North Clark Street when the defendant first approached him and said she would give him a "french" for $50. Murcia testified that in his opinion the word "french" is street slang for oral copulation. He also testified that he declined her offer and did not arrest her at this meeting because he was alone and it is not considered good police policy for one officer to arrest a woman. Murcia then saw defendant enter a car being driven by a man and followed them in his own car to the vicinity of 3153 North Broadway. At this point he requested a squad car to stop the car in which defendant was riding. Defendant and her companion, William Kraus, were placed under arrest and taken to police headquarters.
The testimony of defendant and Kraus showed that Kraus was the owner of a company with which defendant was employed. On the night in question he picked her up at her apartment and the two of them proceeded to a restaurant in the 3100 block of North Broadway. Upon reaching the vicinity, they were stopped by two policemen, ordered to get out of their vehicle, and arrested by Murcia. Defendant denied ever having seen Murcia prior to this arrest, and denied the alleged encounter with him earlier in the evening. The trial court found defendant guilty and sentenced her to serve 8 days in the House of Correction.
Two issues are raised by this appeal. First, was there a variance between the charge in the complaint and the State's proof at trial? This question was first raised by defendant before the appellate court. The defendant argues that such a variance exists in that, although the complaint alleged that she agreed to perform an act of deviate sexual conduct for money, the testimony of Murcia showed only that she offered to do such act. The State responds that the words agree and offer, as used in the statute, are virtually interchangeable. The second issue concerns the effect of the variance if it does exist. It is the position of defendant that the variance is fatal. The State, however, contends that when the question is first raised on review a variance is not fatal to a conviction unless the defendant is prejudiced either because he is misled in the preparation of his defense or because there is a possibility that he will be placed in double jeopardy.
We agree with defendant and with the appellate court that the existence of a variance in this case is undeniable. The offenses defined in section 11-14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11-14) are committed when one either (1) performs, (2) offers or (3) agrees to perform the specified acts. That these were meant to be three separate and distinct methods of violating the statute, and that the three verbs are not interchangeable, is made evident by the Committee Comments to the statute:
"Three verbs are employed to describe the actor's relation to the sexual acts described in subsections (a)(1) and (a)(2). The use of the word `performs' enlarges the statutory law since no section previously in the statutes proscribed the actual performance of the sexual act for money. The verb `offers' generally incorporates the former prohibitions on `soliciting' but connotes less urging and invitation on the part of the prostitute. The word `agrees' 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." Ill. Ann. Stat., ch. 38, par. 11-14, Committee Comments, at 456 (Smith-Hurd 1972).
In light of this construction of the statute, the acts of defendant Johnson, as indicated by the testimony of Murcia, constituted an offer, but not an agreement as charged in the complaint. We must next consider whether this ...