Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Judgment
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 28, 1965.
This appeal comes from a judgment entered April 20, 1964, in the Circuit Court of Cook County, Criminal Division, finding the appellants, James Lees and Peter Loonam guilty of the crime of aggravated battery.
The appellants were employed as part time policemen by the Village of Dixmoor. The complaining witness, John Dauber, was driving his automobile on Western Avenue in Dixmoor at or about 6:00 a.m., Sunday morning, December 14, 1962, when he was stopped by the appellant officers for speeding. When stopped, Dauber left his car and walked over to the police car. He admits that he had been drinking that evening and that he tried to bribe the appellants so that they would not give him a ticket. It is undisputed that they did not accept his offer and that when they detected alcohol on his breath they told him he would have to go to the station with them. There is no question but that the arrest was a proper one, as the complaining witness stated at the trial that he was driving his automobile after having consumed several alcoholic drinks, and nothing was presented at the trial to refute the claim of the officers that Dauber was in fact driving under the influence of alcohol.
The only other person who witnessed what occurred on Western Avenue that morning was Madelyn Fox. She had met the complaining witness earlier that morning at a tavern and later had gone with him for coffee and something to eat. Dauber stated that he had known Miss Fox for four or five years.
What occurred on Western Avenue is a matter of great dispute but we shall try to set forth the salient portions of the testimony of each of these persons.
The complaining witness, John Dauber, testified that after he was stopped by the police he got out of his car and went over to the police car where the officers were sitting. He stated that the officers told him he was speeding and that he asked them if there was anything they "could do to settle it." The officers declined his offer and asked for his driver's license.
The complaining witness testified: ". . . I gave it to him and he said, `Your name is Dauber, huh?' and I said, `Yes, it is,' and I looked down in the squad car and I recognized that those were the two policemen that I had asked to help me one night when a friend of mine got hit in the head and I said, `Forget any favors,' I said, `I don't want any.' I said, `Just give me the ticket and be done with it.'"
Dauber then testified that Officer Loonam called him a vile name and that Loonam then got out of the car and grabbed him and pushed him up against the fender. The complaining witness stated that at that time, "there were words back and forth."
Dauber's testimony continued, ". . . I said, `If you hit me you will be sorry,' so he started to pull out his revolver and that is when I tried to push him away and he called the other policeman and the other one come running around the side of the squad car and he had his club in his hand and when he struck me in the head . . ."
The testimony of the police officers differ in many respects from that of the complaining witness. Officer Loonam testified that Lees was driving the police car that night and that he was sitting in the front seat with him. He stated that Officer Lees got out of the car and went to Dauber's automobile and took the driver's license from the complaining witness. Lees brought the license back to Loonam who then began making out the ticket. Loonam testified that Dauber then came over to the police car and said, "Is this the only way we can handle it?" The witness said he responded, "Sir, I have no idea what you are talking about." Dauber is reported to have replied, "Let's forget this right now and carry this no further."
"Then he backed out for a minute and he stuck his head back in again and he said, `You are the two,' and I said, `We are the two what?' he said, `You are the two that wouldn't help me last January when I was in the fight at the Red Fence.' He says, `You know me, look at me.' Well, when he mentioned the Red Fence and the fight I recalled the incident then and I told him that I knew his brother Billy but the only time I had ever met this fellow before was the previous January when he had that fight.
"Then he started to get real indignant, he stuck his head and half his shoulders in the car window and he was practically nose to nose and I could smell alcohol on his breath and he started to scream again, he said, `You are the two, you are the two,' and at that time I informed him that he was under the influence of liquor and he would have to accompany us to the station where he could take a breatholizer test if he wishes or refused, which was his right. . . .
"Well he backed out of the car and he stood straight up and his face was real red and he was sort of shaking. He says, `I will go to your station with you.' I said `What?' He said, `I will kick the out of you too.' With that he opened the squad car door at which time I stepped out and I shut the door and he was standing right alongside the front fender and I said, `Listen, this doesn't call for this, it's not a bank robbery, it's only a traffic violation.' Then at that time he took a swing at me, he hit me in the neck and I moved in on him and I grabbed him. I ...