People v. Williams

• Decision Date: 05 September 1973
• Docket Number: No. 11941,11941
• Citation: 301 N.E.2d 326,13 Ill.App.3d 951
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fred WILLIAMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 326

301 N.E.2d 326

13 Ill.App.3d 951

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fred WILLIAMS, Defendant-Appellant.

No. 11941.

Appellate Court of Illinois, Fourth District.

Sept. 5, 1973.

John F. McNichols, Dist. Defender, Ill. Defender Project, springfield, for defendant-appellant; Bruce L. Herr, Staff Atty., Springfield, of counsel.

John G. Satter, Jr., State's Atty., Livingston County, Pontiac, John A. Beyer, Atty. in Charge, Circuit Attorney Project, Bloomington, for plaintiff-appellee; Bruce Brown, Senior Law Student, of counsel.

SMITH, Justice.

This is an appeal by the defendant from a conviction of deviate sexual assault and of battery in a bench trial and his sentence of 4 to 5 years in the penitentiary to be served consecutively to the sentence he was then serving. The sentence imposed was on the count charging deviate sexual assault and no sentence was imposed on the count charging battery.

In this court the defendant charges (1) that the indictment for deviate sexual assault is void in charging in the disjunctive that the defendant 'by force compelled another person' to perform or submit to an act of deviate sexual conduct, (2) that the defendant's guilt was not established beyond a reasonable doubt and (3) that the court abused its discretion in denying the defendant's petition for probation and sentencing him to a term of 4 to 5 years.

Deviate sexual conduct, as defined by section 11--2 of the Criminal Code (Ill.Rev.Stat.1971, ch. 38, par. 11--2), means 'any act of sexual gratification involving the sex organs of one person and the mouth or anus of another', and section 11--3 of the Criminal Code provides, with respect to that deviate sexual assault, '(a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to Perform or Submit to any act of deviate sexual conduct commits deviate sexual assault'. , (Emphasis supplied.) Count I of this indictment was framed in the words of the statute. Even though a charge which follows the language of the statute defining the crime uses the disjunctive and it will be sufficient under some circumstances, it will not be sufficient where the statute names disparate and alternate acts any one of which will constitute the offense and as so charged the indictment is void. (People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340.) However the fact that two words intimately associated in their meaning are stated disjunctively does not render an indictment uncertain provided it does not deprive the defendant of notice of the specific nature of the charge against him or impairs a certainty that is requisite if double jeopardy is to be avoided. People v. Rosenfeld, 25 Ill.2d 473, 185 N.E.2d 236.

The defendant cites People v. Bendig, 91 Ill.App.2d 337, 235 N.E.2d 284, where a man was charged with compelling a woman to 'submit to an act of oral copulation'. The facts of the case revealed that the act committed was fellatio. The defendant then argued that there was a fatal variance between the indictment and the proof contending that if a man forces a woman to submit to oral copulation, that language describes the act of cunnilingus. The court in that case rejected the defendant's argument and construed the word 'submit' as defined by Webster is to yield to the will of another and that the force used on the prosecutrix required her to submit to the will of the defendant. As we read the statute, the terms 'perform' and 'submit' are basically interchangeable with both requiring involuntary action by the victim as a result of the force applied by the defendant. To perform an act of deviate sexual conduct patently requires participation by two persons. Deviate sexual conduct defined and proscribed by the statute is specific. When a victim by force submits to an act of deviate sexual conduct he is the passive actor. When by force he is required to perform the act of deviate sexual conduct, he is the active actor. In either event he is an involuntary actor and it is the involuntary submission or participation by force which the statute proscribes. There is nothing in the statute which suggests that voluntary participation by both parties is proscribed by the statute here involved. In our judgment therefore the words 'submit' and 'perform' are so intimately connected and the conduct described so specifically stated in the statute that the use of the disjunctive does not render the indictment void for uncertainty nor does it raise any question of double jeopardy.

A lengthy discussion of the facts in this case is not necessary. The victim testified that he was in his cell when several others came into his cell, beat him up with their fists on the head and upper part of his body. The defendant was right in front beating on him with his fists in the face. He became unconscious and the next thing he knew he was being laid on the bed. The inmate then pulled his pants down and had anal intercourse with him--not only the defendant but the others also did this. The defendant was holding him down by his arms and legs and all of the inmates who entered the cell treated him likewise. A...