People v. Adams, 41446

• Citation: 263 N.E.2d 490,46 Ill.2d 200
• Decision Date: 29 September 1970
• Docket Number: No. 41446,41446
• Parties: The PEOPLE of the State of Illinois, Appellee, v. John ADAMS, Appellant.
• Court: Supreme Court of Illinois

Page 490

263 N.E.2d 490

46 Ill.2d 200

The PEOPLE of the State of Illinois, Appellee, v. John ADAMS, Appellant.

No. 41446.

Supreme Court of Illinois.

Sept. 29, 1970.

Sam Adam, Edward M. Genson and Charles B. Evins, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane, and Thomas Holum, Asst. State's Attys., of counsel), for the People.

WARD, Justice.

Following a bench trial in the circuit court of Cook County, the defendant, John Adams, was found guilty of the unlawful sale of a narcotic drug and was sentenced to a term of from 10 to 13 years in the penitentiary. On appeal he claims that the judgment of conviction must be set aside because (1) he was deprived of his constitutional right to be advised of the nature of the accusation against him, (2) he was denied his constitutionally assured right to counsel at the preliminary hearing, and (3) the evidence was insufficient as a matter of law to support the finding of guilty. The constitutional questions presented give this court jurisdiction on direct appeal. Ill.Rev.Stat.1969, ch. 110A, par. 603.

The relevant portion of the indictment charged the defendant with the sale of the narcotic drug heroin 'in that he knowingly sold to Al Nichols.' At trial evidence disclosed that the true name of the alleged purchaser was Albert Bradley, but that he was also known as Al Nichols. The record further shows that the defendant was aware of the true name of the purchaser prior to trial, this having been made known to the defendant by the State in response to his motion for bill of particulars. It is not disputed that the evidence showed that the 'Al Nichols' named in the indictment and the Albert Bradley who testified at the trial are the same person.

The defendant contends that the intentional misnomer which appeared in the indictment deprived him of his constitutional right to be informed of the nature of the accusation against him. A defect of this character in an indictment, it is charged, prevents an accused from intelligently pleading to the charge, interferes with the effective preparation of a defense, and precludes a defendant from raising a conviction or acquittal as a plea in bar to a subsequent prosecution for the same offense. The defendant argues that in order to satisfy the constitutional requirements, an indictment for the unlawful sale of narcotics must accurately set forth the true and correct name of the alleged purchaser.

Section 9 of article II of the constitution of Illinois, S.H.A. provides, in part, that 'In all criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation * * *.' This constitutional assurance has been interpreted to mean that the offense charged must be sufficiently set forth so that the accused will be able properly to prepare his defense and raise the judgment as a plea in bar to a subsequent prosecution for the same offense. People v. Griffin, 36 Ill.2d 430, 223 N.E.2d 158; People v. Beeftink, 21 Ill.2d 282, 171 N.E.2d 632.

We consider that it is not necessary that an indictment for the sale of a narcotic drug name the purchaser in order to satisfy this constitutional requirement. Section 3 of the Uniform Narcotic Drug Act (Ill.Rev.Stat.1969, ch. 38, par. 22-3) declares it to be 'unlawful for any person to * * * possess * * * sell * * * any narcotic drug, except as authorized in this Act.' The statute creating the offense makes no reference to the purchaser of the drug and his identity is not an element of the crime. The gravamen of the offense is the unlawful sale itself. Many Federal courts considering the sufficiency of indictments returned under a Federal statute which resembles ours have also concluded that the purchase of the drug need not be named in the indictment. The Federal statute makes it unlawful for any person 'to sell, barter, exchange, or give away narcotic drugs' except under specified exceptions and circumstances. (26 U.S.C., sec. 4705(a).) In Clay v. United States (10th cir. 1963), 326 F.2d 196, 199, the court, affirming a conviction based on an indictment which did not include the name of the purchaser, stated: 'The statute makes no provision or requirement with respect to the identity of the person to whom an illegal sale is made and we must therefore conclude * * * that the identity of such person is not an element of the offense.' Too, in Collins v. Markley (7th cir. 1965), 346 F.2d 230, it was held that the purchaser need not be named in an indictment under that statute. See also, Aggers v. United States (8th cir. 1966), 366 F.2d 744; United States v. Jackson (3rd cir. 1965), 344 F.2d 158; Sanchez v. United States (1st cir. 1965), 341 F.2d 379, cert. den. 381 U.S. 940, 85 S.Ct. 1775, 14 L.Ed.2d 704.

The question remaining here is the effect of the indictment's incorrectly naming the purchaser in the indictment. This court has held in People v. Figgers, 23 Ill.2d 516, 519, 179 N.E.2d 626, that where an indictment charges the elements essential to an offense under the statute, other matters unnecessarily appearing in the indictment may be rejected as surplusage. (Cf. People v. Peppas, 24 Ill.2d 483, 182 N.E.2d 228.) Thus, as the naming of the person to whom the illegal sale was made was not essential to the sufficiency of the indictment in question, the misnomer may be regarded as surplusage. A question evolving from this is whether the variance between the allegations in the indictment and the evidence presented was fatal so as to invalidate the conviction. This court has held that no fatal variance will be found where from the record there is no question as to the identity of the person named in the indictment. (People v. Jankowski, 391 Ill. 298, 302, 63 N.E.2d 362.) Too, variances as to names will not be regarded as material unless it appears that the jury was misled or that substantial harm was thereby brought upon the defendant. (People v. Allen, 17 Ill.2d 55, 58, 160 N.E.2d 818.) Here, the record shows unmistakably that it was disclosed in the trial that 'Al Nichols' and Albert Bradley were the same person. No prejudice was incurred by the defendant as he was aware of this prior to trial. The defendant's protection against double jeopardy is assured because identification can be established by the use of the record or parol testimony or both. People v. Jankowski, 391 Ill. 298, 63 N.E.2d 362; People v. Petropoulos, 59 Ill.App.2d 298, 208 N.E.2d 323, affirmed 34 Ill.2d 179, 214 N.E.2d 765; Cf. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240.

Parenthetically, we would observe that while, of course, a void indictment cannot be validated by a bill of particulars (People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97; People v. Flynn, 375 Ill. 366, 31 N.E.2d 591; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240), a defendant accused by an indictment legally adequate in detail may seek a bill for greater detail of the charge against him 'so as to enable an accused to better understand the nature of the charge against him or better to prepare his defense.' People v. Patrick, 38 Ill.2d 255, 260, 230 N.E.2d 843, 846; see, Scott v. United States (3rd cir. 1965), 342 F.2d 813.

Next the defendant argues that he was erroneously denied his constitutional right to have counsel appointed for him at the preliminary hearing. No request for the appointment of counsel was made at the time of the hearing, but we have held that if the right to counsel exists by virtue of the critical nature of the proceedings an accused is entitled to representation even though there has not been a specific request on his part for counsel. (People v. Bonner, 37 Ill.2d 553, 561, 229 N.E.2d 527.) We have held that a preliminary hearing does not constitute a 'critical stage' in the criminal prosecution so as to give rise to a constitutional right to representation. (People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527; People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433.) In Bonner and Morris the preliminary hearings were characterized as proceedings to ascertain whether a crime had been committed, and to determine whether there was probable cause to believe that the accused had committed the crime. However, the United States Supreme Court recently held that the preliminary hearing proceeding in Alabama was a 'critical stage' in that State's criminal process requiring the presence of counsel. Coleman v. Alabama, 309 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

A preliminary hearing in Alabama, as in Illinois, has the purpose of determining whether there is probable cause to believe an offense has been committed by the defendant (Code of Alabama, Tit. 15, secs. 139, 140, 151; Ill.Rev.Stat.1969, ch. 38, par. 109-3). In both States the hearing is not a required step in the process of prosecution, as the prosecutor may seek an indictment directly from the grand jury, thereby eliminating the proceeding. (Ex Parte Campbell, 278 Ala. 114, 176 So.2d 242; Ill.Rev.Stat.1969, ch. 38, par. 111-2.) In neither State is a defendant required to offer defenses at the hearing at the risk of being precluded from raising them at the trial itself (Coleman v. Alabama, 44 Ala.App. 429, 433, 211 So.2d 917, 921; People v. Bonner, 37 Ill.2d 553, 560, 229 N.E.2d 527). We conclude that the preliminary hearing procedures of Alabama and Illinois are substantially alike and we must consider because of Coleman v. Alabama, 90 S.Ct. 1999, 26 L.Ed.2d 387, that a preliminary hearing conducted pursuant to section 109-3 of the Criminal Code (Ill.Rev.Stat.1969, ch. 38, par. 109-3) is a 'critical stage' in this State's criminal process so as to entitle the accused to the assistance of counsel.

The pivotal consideration in the remaining question of whether the direction of Coleman is to be applied to the present case is whether Coleman is to be given retroactive effect or is...