Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment
of conviction affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction for the crime of aggravated battery, after a verdict by a jury, with sentence in the Illinois State Penitentiary for a period of 15 to 20 years.
Albert Berg, called as a State witness, testified that on November 29, 1962, he went to a tavern located at 2506 North Lincoln Avenue, which is often called "the Club"; that at about 12:35 a.m. he saw defendant in the tavern but had no conversation with him; that defendant left the tavern; that shortly thereafter, as he stepped out of the tavern, defendant started to fire and he was shot through the stomach twice and in the hip once; that he fell to the sidewalk and defendant kept firing while he was lying on the sidewalk; and that he did not have any weapons on that particular occasion and never carries a gun. Witness Berg was then asked if he ever carried a gun, knife, any broken bottles or anything like that and he replied "no" to all of these questions. He then identified defendant as the man who shot him.
On cross-examination, complaining witness Berg testified that when he got to the tavern it was about 11:00 p.m.; that defendant was sitting at the east end of the bar; that he had come from a friend's house, where he had one bottle of beer during the course of the visit; that he had been in the tavern before; that he knew many people in the neighborhood that went to the tavern; that he saw defendant sitting with a lady friend; that he was about 15 to 20 feet from the spot where defendant and his lady friend were sitting; that he did not have any conversation with defendant, but talked generally to the crowd; that defendant did not address him; that there was no argument in the tavern; that Bright left alone; that he left shortly thereafter, walked out the door and was shot; and that defendant was standing facing him as he came out of the door.
John Babbs was called as a witness for the State and he testified that he was a part-time bartender at "the Club"; that he had known defendant about two months; that defendant arrived about 9:30 p.m. and complaining witness Berg arrived about an hour and a half later; that Bright left the tavern about 12:30 a.m.; that a short time later Berg left the premises; that he heard a shot outside the door; that he opened the door and defendant was standing to the right of the door with a pistol in his hand and he fired three more shots into complaining witness Berg, "who was laying across in front of the door"; that after the third shot was fired into Berg, he heard a clicking noise; and that after the shooting, the defendant went down the side of the tavern to the back door and got his topcoat and left.
On cross-examination Babbs testified that defendant had several drinks while sitting at the bar; that he did not put his feet on the bar; that there was an argument between defendant and Berg; that when defendant went out the door he stated "don't follow me"; that he did not see defendant fire the first shot; and that he did not see Berg fall.
Barbara Hutson, a witness for the State, testified that she was in "the Club" at about 12:30 a.m. when the commotion started; that she saw flashes at the front door; that she saw Berg lying on the ground outside in front of the door; that she went over to him and knelt down and he was trying to get up; and that she held him and told him not to move. On cross-examination, she testified that she did not know defendant or Berg.
The court adjourned and met the following day. Upon recovening, defendant stated that his counsel was being fired by him and made an eloquent statement to the court in which he pointed out alleged errors that had occurred during the course of the trial. The court ordered the trial to continue with representation by the same attorney. Defendant then stated that he wished to conduct the trial by himself with assistance by his defense counsel. The court did not allow defendant's request.
Patrick Tuohy was called as a witness and testified that he is a detective with the Chicago Police Department; that on October 29, 1962, at about 12:40 a.m. he went to a tavern at 2506 North Lincoln Avenue, in response to a radio call that a man had been shot; that he went to the Del-Ray Hotel looking for defendant; that he received word on November 4, 1964, from Scotts Bluff, Nebraska, that they had Bright; and that he proceeded to Scotts Bluff and brought defendant back to Illinois. He identified defendant in court. On cross-examination, he stated that defendant waived extradition and that defendant was given safe conduct to Chicago.
Jessie Lawson, a witness for the State, testified that defendant and Berg did have an argument at the bar; that defendant and Berg left "the Club" together; that he heard something that sounded like gunshots; that he called the police; and that he then went outside the door and saw Berg lying on the sidewalk. On cross-examination, he testified that Berg was talking loud while sitting at the bar.
Orlino Hosaka testified for the State that he is a licensed physician in the state of Illinois; that he received a patient by the name of Albert Berg; that said patient had gunshot wounds in the stomach and left thigh. On cross-examination, he testified that there were five bullet holes; that two of the bullet holes apparently being the result of a bullet passing through the body. The State rested and defendant requested a directed verdict, which was denied.
Defendant took the stand in his own behalf and testified that he arrived at the tavern about 8:30 p.m.; that he bought several drinks; that Berg was sitting several stools away from him; that he bought Berg several drinks; that he got up to go to the jukebox to play the music and when he came back he saw his money, which was on the bar, was "growing a little smaller"; that Berg tried to make conversation with him; that Berg made several personal remarks to him; that he put his feet up on the bar; that he asked Berg to refrain from doing this; that Berg got off the stool and got smart; that he took his drink and splashed it across Berg's foreleg; that Berg stepped off the stool and called him names; that Berg grabbed him and pulled on the left shoulder pad of his suit; that he struck Berg on the chin, knocking Berg onto the floor; that Berg challenged him to a fight; that he told Berg he didn't want to fight; that the two of them went outside; that he turned around and was shot in the left leg; that Berg had a gun in his hand; that he pulled out his own pistol and shot at Berg; that he left the scene; that he didn't go back to the hotel where he was staying; that he subsequently heard there was a "shoot to kill" order on him by the police; and that he was arrested by the F.B.I. in Scotts Bluff, Nebraska. On cross-examination, he testified that he had called Superintendent Wilson of the Chicago Police Department, to guarantee his safe arrival; that he had occasion to carry pistols while he was employed as a guard over large sums of money; and that he was a former police officer.
A verdict was returned against defendant and judgment entered on said verdict. Defendant ...