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People v. Montgomery

OPINION FILED JUNE 2, 1981.

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

v.

DONALD MONTGOMERY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK W. MEEKINS, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Following a bench trial defendant was convicted of aggravated assault (Ill. Rev. Stat. 1979, ch. 38, par. 12-2(a)(1)) and resisting a peace officer (Ill. Rev. Stat. 1979, ch. 38, par. 31-1) and was sentenced to concurrent terms of nine months in the Cook County Department of Corrections.

On May 29, 1980, at approximately 5:30 p.m., Officer Andrew Stebel and Officer Michael Romano of the Chicago Heights Police Department were patrolling in the vicinity of 1500 South Wentworth Avenue in a marked squad car. Defendant and two other men were walking in the area of Wentworth and 16th Street. Officer Stebel stopped the squad car near the curb and Officer Romano had a conversation with one of the men. At the time defendant and the third man began "screaming and yelling" obscenities. Approximately 20 people were where they could hear the obscenities. The men continued to shout obscenities for approximately five minutes after being warned by the officers to stop or else they would be arrested for disturbing the peace. When the officers attempted to arrest the men, they eluded capture.

Approximately one-half hour later, the officers spotted the fleeing suspects in the front yard of defendant's home. The police entered the home to arrest defendant who was hiding in a bedroom. Defendant then emerged from the bedroom and pointed a blue steel handgun at the officers. Officer Crescenti testified that when he saw defendant point the gun at him, he "ducked" and aimed his service revolver at defendant who then retreated into the bedroom. When defendant later emerged weaponless from the bedroom, he began a scuffle with the officers and was thereafter handcuffed and arrested. While Officer Romano was attempting to handcuff defendant, defendant "punched" him in the mouth. Following defendant's arrest, the gun was recovered from the bedroom.

Defendant denied assaulting any officer with the gun. He testified that when the police arrived, he went to the bedroom and shut the door, so that it was open only a "crack." He further testified that he had a "black stick" in his hands when he emerged from the bedroom. However, defendant could not remember where he had acquired the stick, nor the present whereabouts of the stick. Defendant also testified that when he tried to raise his hands, Officer Crescenti grabbed him and threw him down, and that all his actions were in self-defense.

I

Defendant contends that the "State failed to prove that [he] committed aggravated assault as charged" and therefore his conviction for aggravated assault must be reversed. In support of this contention defendant, noting that the first time Officer Romano saw the gun was after defendant had been arrested and removed from the bedroom, argues:

"Officer Crescenti testified that the weapon was pointed at him. [Defendant] was not charged with assaulting Crescenti, however. Thus, even if Crescenti's testimony were credible on this issue, it would not support the charge that [he] assaulted Romano."

In so arguing, defendant, citing People v. Tiller (1978), 61 Ill. App.3d 785, 795, 378 N.E.2d 282, 290, relies upon the proposition that "if an alleged victim is unaware of the presence of a gun, he cannot be found to have been assaulted by the weapon." Defendant cites no other authority and makes no further argument.

We have no quarrel with the proposition enunciated in Tiller. However, although defendant couches his argument in terms of reasonable doubt and "total insufficiency" of the evidence, it is our opinion that his argument addresses whether there was a fatal variance between the complaint and the evidence which resulted in his conviction. The complaint alleges that defendant had

"* * * on or about 29 May 1980 at 1411 Center ave, Chgo. Hts. Cook County, Ill committed the offense of Aggravated Assault in that he while using a deadly weapon, a Colt, 6 shot, snub nosed revolver, loaded with 6 rounds of .38 cal ammunition, serial 931788, did, without lawful authority point the weapon at officers which placed ofc. Michael Romano in reasonable apprehension of receiving a battery."

The evidence adduced at trial demonstrates beyond a reasonable doubt that Officer Crescenti was placed in reasonable apprehension of receiving a battery. *fn1 However, there was no proof adduced at trial that Officer Romano was placed in reasonable apprehension of receiving a battery. Defendant failed to raise this issue in his motion for a directed verdict and in his closing argument. No post-trial motions were filed.

When a complaint is attacked for the first time on appeal, its sufficiency must be judged by whether or not it apprised the accused of the precise offense charged with sufficient specificity to allow him to prepare his defense and to plead a resulting conviction as a bar to future prosecution arising out of the same conduct. (People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437.) Much the same standard has been applied to cases where it is alleged for the first time on appeal that there was a variance between the pleading and the proof at trial. (People v. Johnson (1976), 65 Ill.2d 332, 337, 357 N.E.2d 1166.) "In such an instance, to vitiate a trial, a variance between the allegations in a criminal complaint and the proof at trial `must be material and be of such character as may mislead the accused in making his defense or expose him to double jeopardy.' People v. Figgers (1962), 23 Ill.2d 516, 518-19; accord, People v. Johnson (1976), 65 Ill.2d 332, 337; People v. Pujoue (1975), 61 Ill.2d 335, 339; People v. Nelson (1965), 33 Ill.2d 48, 52, cert. denied (1966), 383 U.S. 918, 15 L.Ed.2d 671, 86 S.Ct. 911." People v. Davis (1980), 82 Ill.2d 534, 539, 413 N.E.2d 413. *fn2

• 1 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, *fn3 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." (People v. Ferraro (1979), 79 Ill. App.3d 465, 468, 398 N.E.2d 1001.) In summary, the modern approach to the question is not necessarily based upon idem sonans but is based upon 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 ...


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