Such discrepancies in testimony taken at different times are not unusual and go only to the weight to be given the testimony by the jury; they do not destroy the credibility of the witnesses. ( People v. Clay (1963), 27 Ill.2d 27, 32; People v. Thomas (1960), 20 Ill.2d 603, 608.) The minor variations in the testimony do not compel us to find that the evidence was so unsatisfactory as to raise a reasonable doubt of the defendant's guilt.
At the trial he said he searched her at 41st and Wabash and was not asked about any other search on either direct or cross-examination. Minor discrepancies in testimony taken at two different times is not unusual. ( People v. Thomas, 20 Ill.2d 603.) The discrepancies shown by this record do not destroy the credibility of officer Harvey but go only to the weight to be given his testimony.
It is well settled that a variance, to vitiate a trial, must be material and be of such character as may mislead the accused in making his defense or expose him to double jeopardy. ( Clark v. People, 224 Ill. 554; People v. Jennings, 298 Ill. 286; People v. Thomas, 20 Ill.2d 603.) Also of importance here is the general rule that immaterial matters, or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments, may be regarded as surplusage. ( People v. Osborne, 278 Ill. 104; People v. Moore, 368 Ill. 455.) Accordingly, where an indictment charges all of the elements essential to an offense under a statute, other matters unnecessarily added may be rejected as surplusage. ( People v. Rogers, 303 Ill. 578; People v. Keene, 391 Ill. 305.
( People v. Humphrey (1970), 46 Ill.2d 88, 263 N.E.2d 77.) Furthermore, the judge may refer to evidence at the original trial. People v. Thomas (1960), 20 Ill.2d 603, 170 N.E.2d 543. • 3 The trial judge made several remarks when he ruled on the post-conviction petition.
( People v. Merrill, 76 Ill. App.2d 82, 87, 221 N.E.2d 145, citing People v. Henry, 68 Ill. App.2d 48, 51, 214 N.E.2d 550.) The indictment in the instant case quite clearly is sufficient in this regard. Further, the variance must not cause substantial injury to the defendant, either by hindering the preparation of his defense or allowing him to be prosecuted a second time for the same offense. ( People v. Thomas, 20 Ill.2d 603, 606, 170 N.E.2d 543; People v. Nelson, 17 Ill.2d 509, 512; 162 N.E.2d 390; People v. Cheney, 405 Ill. 258, 260, 90 N.E.2d 783.) Defendant has failed to show any actual, substantial injury in the record of the instant case and "the mere possibility of prejudice is insufficient to require a reversal on the ground of variance."
We have examined the record, and while there were discrepancies in the testimony of one of the police officers from that given at a preliminary hearing, we find them to be very minor and of no consequence. People v. Thomas, 20 Ill.2d 603, 170 N.E.2d 543. [1, 2] It is true that Officer Antzoulatos, who was on a special and dangerous assignment, was the only person who testified that Concil told Herod to hit him and he would take his money.
Moreover, the variance must not result in substantial injury to the defendant, either by causing the jury to be misled or by hindering the defendant in the intelligent presentation of his case. The People v. Thomas, 20 Ill.2d 603, 606, 170 N.E.2d 543 (1960); The People v. Nelson, 17 Ill.2d 509, 512, 162 N.E.2d 390 (1959); The People v. Cunningham, 300 Ill. 376, 381, 133 N.E. 270 (1921). [10] The facts in this case leave no doubt as to the identity of the corporate owner of the building and the property taken, and there is no showing by the defendant, as there must be, that the variance has in any way harmed him.
The charter established that the correct corporate name was Lt. Robert C.A. Carlson Post No. 1207, The American Legion, and the court ruled that the variance was inconsequential. The defendant made an objection to the court's ruling and challenges it on appeal. However, variances such as here set forth are not fatal. The People v. Thomas, 20 Ill.2d 603, 606, 607, 170 N.E.2d 543 (1960); The People v. Nelson, 17 Ill.2d 509, 511, 512, 162 N.E.2d 390 (1959). At the trial, the property seized in the apartment and properly identified as being the property of the Carlson Legion Post was admitted in evidence without objection. It included Carlson Legion Post medals, a citation, insurance policies and a liquor license.
"Minor discrepancies in testimony taken at two different times is not unusual. (People v. Thomas, 20 Ill.2d 603.) The discrepancies shown by this record do not destroy the credibility of officer Harvey but go only to the weight to be given his testimony.