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People v. Smice

FEBRUARY 2, 1967.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RONALD SMICE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the Fifteenth Judicial Circuit of Ogle County; the Hon. HELEN RUTKOWSKI, Judge, presiding. Affirmed and remanded with directions.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This appeal illustrates some of the problems presented in appellate review of sentence, as permitted under the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)).

The defendant-appellant was charged by information with the offense of battery in violation of section 12-3 of the Code. The jury found him guilty and gratuitously recommended probation. Thereupon, the defendant filed his petition for probation, and purportedly waived the probation hearing and investigation by the probation officer, although the court expressed doubt as to the propriety of such waiver. Upon the court's suggestion, the defendant testified on his own behalf relative to probation. His testimony indicated that he desired probation, would abide by its terms and stay out of trouble; that he was employed and lived at home; and that he would obey all laws.

At the conclusion of the defendant's testimony, the court questioned him. His responses disclosed that the impulse to strike people did not come over him very often, but he did not remember how many times he had felt that way in the last two months.

Thereupon, the court denied the petition for probation and sentenced the defendant to the Illinois State Farm at Vandalia for six months. This appeal followed and the defendant's theory is:

"1. That the punishment meted out by the court was excessive, cruel and extremely unusual;

"2. That the court's measure of punishment was not authorized by the verdict of the jury."

The relief sought is that the verdict, the sentence, and the denial of probation, be reversed.

The defendant was 21 years of age at the time of the offense. He had been keeping company with and was eager to marry a girl who was then a senior in high school. On the evening in question, Steven Gilbert, 19, and another young man, took this girl and another girl for a ride in Gilbert's car. After taking the other girl home, the other young man, who was driving, parked the car in the driveway at the home of the girl in question. The defendant and another young man approached the car, and there was evidence that both of them struck Gilbert. The defendant denied that he struck Gilbert but admitted that he shoved him and told him to stay away from the girl. The evidence warranted the jury verdict that the defendant was guilty of the offense of battery. Under the facts of this case, we will not substitute our judgment for that of the jury. The People v. Malmenato, 14 Ill.2d 52, 59-62, 150 N.E.2d 806 (1958).

While we do not understand the defendant's theory of the case, we will treat it as an inarticulate request that we reduce the punishment imposed by the trial court pursuant to section 121-9(b) (4) of the Code of Criminal Procedure, supra. Reviewing courts consider the sentences imposed by a number of judges, and, therefore, are in a position to detect and correct the injustice of an improper sentence. However, the power to reduce a sentence cannot be exercised in a meaningful manner unless the reviewing court is in possession of an adequate record pertaining to the life and character of the defendant.

Section 1-7(b) of the Code (Ill. Rev Stats 1965, c 38, § 1-7 (b)), provides that upon conviction "the court shall determine and impose the penalty in the manner and subject to the limitations imposed in this Section." The penalty, upon conviction of the offense of battery, is a fine of not to exceed $500 or imprisonment in a penal institution, other than the penitentiary, not to exceed 6 months, or both.

Under the provisions of section 1-7(b), ibid., and section 117-1 (Ill. Rev Stats 1965, c 38, § 117-1), this defendant was eligible to be admitted to probation. However, the defendant's testimony pertaining to probation was of but little value to the court in determining whether he was a good probationary risk. And, due to defendant's waiver of an investigation by the probation officer, neither the trial court nor this court have the benefit of such report.

In addition, the record reflects that no hearing was held in this case for the purpose of determining the sentence to be imposed, as provided for in section 1-7(g) of the Code (Ill. ...


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