People v. Brownlee

• Decision Date: 05 February 1974
• Docket Number: No. 58585,58585
• Citation: People v. Brownlee, 308 N.E.2d 377, 17 Ill.App.3d 535 (Ill. App. 1974)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph BROWNLEE, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 377

308 N.E.2d 377

17 Ill.App.3d 535

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph BROWNLEE, Defendant-Appellant.

No. 58585.

Appellate Court of Illinois, First District, Second Division.

Feb. 5, 1974.

James J. Doherty, Public Defender, of Cook County for defendant-appellant; Marilyn Israel, Lee T. Hettinger, Asst. Public Defenders, of counsel.

Bernard Carey State's Atty., of Cook County for plaintiff-appellee; Kenneth L. Gillis, Mark R. Harms, Asst. State's Attys., of counsel.

STAMOS, Justice:

Joseph Brownlee, defendant, was charged by separate complaints with reckless conduct and failure to possess an Illinois State firearm owner's identification card in violation of Sections 12--5 and 83--2 of the Criminal Code (Ill.Rev.Stat.1971, ch. 38, pars. 12--5, 83--2). Defendant was also charged by complaint with resisting arrest in violation of Chapter 11, Section 33 of the Municipal Code of the City of Chicago. After a bench trial, defendant was found guilty of all charges and was sentenced to one year in the House of Correction on the charges of reckless conduct and failure to possess an Illinois State firearm owner's identification card, the sentences to run concurrently. Defendant was fined $100 on the charge of resisiting arrest. On appeal, defendant argues (1) that the complaint charging him with reckless conduct was fatally defective; (2) that the complaint charging him with resisting arrest was fatally defective; (3) that his conviction for resisting arrest was void since it was prosecuted by the State's Attorney, who had no authority to prosecute violations of the Chicago Municipal Code; and (4) that the evidence was insufficient to establish his guilt beyond a reasonable doubt on the charges of reckless conduct and failure to possess an Illinois State firearm owner's identification card.

At trial, the following evidence was adduced: Alan Kobylar, a Chicago Police Officer, testified that on May 22, 1972, at approximately 3:10 A.M., he was driving a squad car eastbound on Madison Street in Chicago, Illinois where he observed defendant and a Mr. Centergeld standing on the street at 4730 Madison. He observed defendant pull a revoler from his front pocket and fire one shot at Officer Kobylar's squad car. Officer Kobylar proceeded east on Madison Street and heard three or four more shots fired. Officer Kobylar made a U-turn at the intersection of Kilpatrick and Madison, and at approximately 4730 Madison, he observed defendant throw the gun to the ground. Defendant was placed under arrest and the weapon was recovered. Defendant stated that he was not going to be placed under arrest. Defendant stated that he was not going to be placed under arrest. Defendant then pushed Officer Kobylar and tried to escape. After a struggle, defendant was subdued. After defendant was warned of his constitutional rights, he was asked whether he had a State firearm owner's identification card. Defendant replied that he did not.

Joseph Brownlee, defendant, testified that on May 22, 1972, at approximately 3:10 A.M., he was returning from a night club and was walking with a friend named Eddie down Madison Street. Officer Kobylar approached them and told both of them to put their hands on the car. Defendant testified that the officer slapped Eddie and then hit him, knocking him to the ground. Defendant testified that Officer Kobylar told him that he had found a gun. Defendant denied that the gun was his. Defendant denied that he ever pointed a gun at Officer Kobylar or fired a weapon that evening in question.

Defendant's initial argument on appeal is that the complaint charging him with reckless conduct was fatally defective in two respects. Defendant was initially charged by complaint with aggravated assault in violation of Section 12--2(a)(1) of the Criminal Code (Ill.Rev.Stat.1971, ch. 38, par. 12--2(a) (1)). That complaint read that the defendant committed the offense of aggravated assault in that he:

'(W)ithout lawful authority, and while using a deadly weapon, to wit: A .22 caliber Rohn revolver fired shots at the said patrolman Alan Kodylar (sic) thereby placing him in reasonable apprehension of receiving a battery.'

Prior to trial, the assistant State's Attorney asked leave to amend the complaint by striking the words 'aggravated assault' and inserting the words 'reckless conduct' and by 'striking the body of the complaint and inserting the words 'a person who causes bodily harm to or endangers bodily safety of an individual by any means'.' However, the common law record reveals that the body of the complaint was not physically stricken, but merely that the words 'reckless conduct' were substituted for the phrase 'aggravated assault'; the acts specifically alleging the offense remained as part of the written complaint and added thereto was the following language:

'A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits the reckless conduct if he performs recklessly said acts which endanger safety.'

Defendant submits a two-pronged argument. First, he contends that the report of the proceedings clearly demonstrates the written complaint was amended by striking the entire body of the complaint, including the particular acts alleged. Consequently, the complaint does not state what act or acts defendant allegedly committed, and is therefore insufficient to apprise defendant of the charge against him. Alternatively, defendant urges that the complaint is fatally defective in that it fails to specify that the act complained of was performed 'recklessly.' Defendant's contentions are not persuasive.

The rule is well established that the report of proceedings and the common law record must be read together as a whole. (People v. Caruth, 4 Ill.App.3d 527, 281 N.E.2d 349.) Although the record of the proceedings indicates that the assistant State's Attorney made a motion to strike the body of the complaint and insert in its place certain words, we think the statement was not intended, nor interpreted, to be conclusive of the substance of the written complaint. The words 'a person who causes bodily harm to or endangers the bodily safety of an individual by any means . . .' uttered by the prosecutor do not complete the charging sentence of the complaint form, nor do they express a complete thought. As such, the compelling conclusion is that the prosecutor's statement, although unskillfully presented, was merely an abbreviated description of the complaint to be amended in writing. Therefore, defendant's conviction rests upon the written complaint contained in the common law record.

Defendant next contends that the complaint fails to allege an essential element of the crime since it did not allege that defendant performed any act recklessly. The contention is without merit. The charge ...