excludable evidence includes matters observed during an unlawful search which relate to past or existing criminal activity, but not evidence of crimes which arise from and are in reaction to an illegal search
How later courts described this case
- excludable evidence includes matters observed during an unlawful search which relate to past or existing criminal activity, but not evidence of crimes which arise from and are in reaction to an illegal search
- "Assault is an offense distinct from battery. If there has been any touching or any other form of physical contact with the victim, a battery has been committed and not an assault, assuming the presence of the other requirements for a battery."
- such a policy in fundamental opposition to civilized rule of law
- public party and consent
Written by the judges who cited it.
Distinguished
Distinguished by People v. Mitchell, 21 Ill. App. 3d 171 (1974)
People v. Abrams (1971), 48 Ill.2d 446, 271 N.E.2d 37, cited by defendant, is distinguishable from the case before us in that in Abrams the complaint failed to allege an essential element of the offense.
The opinion
Mr. Chief Justice Underwood, dissenting in part:
I disagree with the majority’s finding that the complaints charging defendant Levinsohn with aggravated assault are fatally defective and do not charge an offense. These complaints alleged that, knowing Alinovich and Hines to be police officers engaged in official duties, defendant “did without lawful authority strike the officer(s) about the arms and body” thereby placing them in reasonable apprehension of receiving a battery. Examination of the relevant statutes as stated in the majority opinion reveals that the statutory language varies from that used in the complaint only in that defendant’s conduct, which created the reasonable apprehension, is described. Since this conduct involved touching, however, the majority finds that it no longer constituted assault. Sole reliance for this curious result is placed on the Committee Comments to § 12 — 1 and § 12 — 2 of the Criminal Code. (S.H.A., ch. 38, §§12 — 1, 12 — 2, pp. 697 and 700.) These comments are clearly intended only to emphasize the fact that no touching is required for assault or aggravated assault, while physical contact is required for battery. They cannot reasonably be read, in my opinion, to precude prosecution for assault where touching is involved. This point becomes even more apparent when one considers the majority’s treatment of the complaint charging Levinsohn with battery against the same two police officers. The rejection of this complaint because it did not allege that the physical contact complained of was of an insulting or provoking nature, or that it caused bodily harm, clearly indicates that all intentional physical contact without legal justification does not constitute a battery. No element of the offense of aggravated assault is absent from the complaint in question. The additional allegation of physical contact is, at most, unnecessary surplusage which does not constitute a fatal defect, and ought to be so treated. People v. Adams, 46 Ill.2d 200, 204 ; People v. Figgers, 23 Ill.2d 516 ; People v. Crawford, 23 Ill.2d 605 .
Davis and Ryan, JJ., join in this dissent.