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People v. Ferraro





APPEAL from the Circuit Court of Du Page County; the Hon. CARL F. HENNINGER, Judge, presiding. MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

In a jury trial the defendant was convicted of switching price tags in a retail mercantile establishment under the provisions of section 16A-3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16A-3(c)). The court imposed a fine of $200 plus court costs and suspended the same. The defendant appeals.

On November 14, 1977, the defendant went to the J.C. Penney Co. store in Villa Park where she was observed by a security guard removing a price tag from a less expensive brassiere and, after removing the expensive price tag and placing the less expensive price tag on the more expensive brassiere, she paid the lesser amount at the checkout counter. She was followed by the security guard outside, placed under arrest and taken back into the store. The security guard had further observed her place the more expensive price tag in her right hand coat pocket. The police were called, and the policeman removed the higher price tag from the right-hand coat pocket of the defendant, who thereupon stated, in substance, that she had never done anything like that before. This violation of the provisions of section 16A-3(c) is a matter of first impression in this State under this act.

The defendant raises the following issues: (1) The complaint is void because the caption indicates the plaintiff is the Village of Villa Park rather than the State; (2) there is a fatal variance in that the complaint names the defendant as Rose Marie Ferraro while her name is actually Mary Rose Ferraro; (3) the State failed to prove ownership of the property stolen and the corporate existence of the J.C. Penney Company; (4) whether the State proved the retail value of the brassiere; (5) whether the trial court erred in refusing testimony of defendant as to possible pricing error of other merchandise; (6) whether the trial court erred in admitting a spontaneous penitential statement of defendant.

• 1, 2 The first contention of the defendant is that the caption of the complaint herein discloses that the plaintiff is the Village of Villa Park rather than the People of the State of Illinois. We disagree. We find, first, that the caption is not controlling. Secondly, the caption does not disclose that the plaintiff is the Village of Villa Park. In support of the argument on behalf of the defendant, the defendant has cited City of Chicago v. Berg (1964), 48 Ill. App.2d 251, 199 N.E.2d 49. This case is inapposite. In Berg the defendant was given a traffic ticket charging him with a violation of the Municipal Code of Chicago. The plaintiff was the State of Illinois. The name of the City of Chicago did not appear on the traffic ticket. The court held that actions to enforce municipal ordinances must be brought in the corporate name of the municipality. In the case before us the complaint charged specifically a violation of section 16A-3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16A-3(b)). The complaint states, "In the name and by the authority of the People of the State of Illinois," alleges the offense in violation of the aforementioned statute, and concludes, "Contrary to the form of the Statute in such case made and provided and against the peace and dignity of the people of the State of Illinois." There is nothing in the complaint to indicate that the defendant was charged with a municipal ordinance violation and the notation at the top of the complaint,


is not conclusive in any way or indicative of an ordinance violation, nor was the defendant tried for an ordinance violation. Therefore, this argument is without merit.

• 3, 4 The second contention of the defendant is that the complaint charged "Rose Marie Farraro" with the offense herein whereas the proof showed the person prosecuted was "Mary Rose Ferraro." Examination of the early authorities in this State discloses that, where the name of the victim of the offense, or the defendant, does not come under the idem sonans doctrine, the variance is fatal. In more recent cases it is held that a variance as to names alleged in a complaint or indictment, and those proved by evidence, is not regarded as material unless some substantial injury is done to the accused thereby. In support of the argument that the variance herein is fatal, the defendant has cited the old case of People v. Smith (1913), 258 Ill. 502, 101 N.E. 957, where the Christian name of the victim of a crime was alleged to be Rosetta and the proof was that her name was Rosalia. The majority of the court held that the variance was fatal. However, Justice Carter dissented, stating:

"Under the modern rule, however, in most jurisdictions it is held that the question is one of identity, and where the identity of the party in evidence as the one named in the indictment is established the variance will not be held fatal." 258 Ill. 502, 504, 101 N.E. 957, 958.)

Oddly enough, in People v. Walker (1955), 7 Ill.2d 158, 130 N.E.2d 182, the supreme court, citing People v. Smith (1930), 341 Ill. 649, 173 N.E. 814, stated:

"Proof of the Christian name is unnecessary, however, where the facts in evidence leave no doubt as to the identity of the person." (7 Ill.2d 158, 161, 130 N.E.2d 182, 183.)

This appears to be in error as the decision stated from the Walker case is found in the dissent in the early case of People v. Smith, not in the majority opinion. Following those cases, in People v. Jones (1973), 53 Ill.2d 460, 292 N.E.2d 361, the supreme court, citing Walker, again stated that proof of the Christian name was unnecessary where the facts leave no doubt as to the identity of the person. The court in Jones went on to state:

"The liberalization of criminal pleading also reflects a lessening in importance of the indictment's secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense." (53 Ill.2d 460, 464, 292 N.E.2d 361, 363.)

In summary, the modern approach to the question is not necessarily based on idem sonans, which may well be the situation in the case before us, but is based upon the fact as to whether the complaint sufficiently advises the defendant of the material elements involved. Unless it appears to the court that either the jury was misled or that some substantial injury was done to the accused whereby he was unable to intelligently make his defense, or was exposed to the danger of a second trial on the same charge, the alleged misnomer of the defendant's Christian name is not reversible error. The contention that a variance as to the Christian name herein, charging "Rose Marie Ferraro," is of no consequence under the facts of this case. During the trial herein the defendant did not raise this issue and, as a matter of fact, she not only made a personal bond for her release from custody under the name of Rose Marie Ferraro but her attorney entered her appearance as Rose Marie Ferraro. Under these facts the argument is specious that she was not sufficiently apprised by the complaint to effectively prepare and present her defense.

• 5 The third contention of the defendant is somewhat two-fold in nature, alleging first that the State failed to properly charge ownership of the property in question and, secondly, that the corporate existence of J.C. Penney & Co. was not proven. This issue was raised in People v. Sims (1975), 29 Ill. App.3d 815, 331 N.E.2d 178, where the court stated that if the ownership of the property is alleged to be in a corporation, then the legal existence of the corporation is a material fact that must be proven. However, in that case, the court went on to state, "However, the prescriptions formerly associated with the proof of a corporation's ...

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