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People v. Eyre

MAY 4, 1967.




Appeal to the First District from the Circuit Court of Cook County; the Hon. WILLIAM PATTERSON, Judge, presiding. Judgment reversed.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT. Defendant appeals from a judgment of guilty of the charge of battery and a fine of $50.

The defendant contends that the evidence failed to prove the defendant guilty beyond a reasonable doubt; that the court erred in failing to allow questions concerning former wrongful acts or conduct on the part of the complainant and directed toward the defendant, and that the court erred in failing to take into consideration or allow questions concerning the violation of curfew by complainant at the time of the occurrence.

For a proper understanding of the case it will be necessary to set forth the testimony of each witness. Four witnesses were called by the State, including the complainant, and four witnesses, including the defendant, were called and testified on behalf of the defense.

The complainant, Vincent Kunicki, who was sixteen years of age, testified that at 10:45 p.m. on August 22, 1965, he was walking on the opposite side of the street from the defendant's home on North Wayne Avenue in Chicago. He heard someone call his name and he looked up to the second-floor window across the street and saw that it was a boy named Pat. The complainant was with Daniel McKay and George Bevins. The boys on the street started talking to their friend Pat and the defendant came to the window on the first floor at 6333 North Wayne Avenue. The defendant told the complainant to keep moving. The complainant testified that he then said, "This is public property," and that defendant then called him a "dirty, rotten hillbilly." Complainant stated that he and his friends started to cross the street and the defendant grabbed him around the back of the neck and pushed him over between the houses, and started choking him. The defendant then slapped the complainant with his open hand on the left side of the face. The complainant testified that the defendant hit the complainant five or six times and that the next thing he knew he was on the ground. He testified that he knew the defendant prior to the time in question; that the defendant had been his landlord at 6333 North Wayne Avenue. He stated that he saw a doctor right after the occurrence and that he had an internal injury. His testimony further indicated that he had been kicked on the left side of his hip. He said he did nothing to provoke the defendant.

Complainant testified on cross-examination that he knew the defendant prior to this occasion; that the defendant had served his family with a notice of eviction prior to this happening and that his family was also served with a notice to pay $300.

The complainant was asked if he had shot beebees at the defendant's window prior to that time, to which he answered that he had not. However, he said that he had been arrested for shooting beebees through the window. An objection was made and the court struck the testimony.

Complainant was also asked if he knew what time the curfew was in the city of Chicago, to which he answered that he did know.

Complainant's testimony further indicated that at 10:45 p.m. on the date in question he was going to pick up a girl friend. He stated that when he was talking to Pat (Patrick Maloney, who was a defense witness) he did not see Mrs. Eyre, nor did he say anything to her. He stated that Pat left the window and Mr. Eyre told them to get off the street and keep moving.

Daniel McKay, one of the teenagers who was with the complainant, testified that he attended high school, and that on the date in question he had seen the defendant; that the time was approximately 11:00 p.m. This witness testified that Pat Maloney called to them from the second-floor window across the street; that he then left the window for a minute and Mr. Eyre knocked on his window and told the complainant and his friends to get off his property. The complainant told Mr. Eyre that this was public property, and they then started to walk toward the curb. When the witness was in the middle of the street Mr. Eyre came out. He called the complainant a hillbilly a couple of times and some words passed between them. According to this witness, Mr. Eyre grabbed the complainant, he thought, around the neck. Vincent was trying to get away. Mr. Eyre was pulling him and Vincent was yelling "help." When Vincent got away he slipped on the sidewalk and Mr. Eyre ran over to him and kicked him in the side. He testified that Vincent was bleeding from the mouth and nose, and the police were called. He testified that Mr. Eyre told the boys to get off the sidewalk and that he was swearing at them. He also testified that "Once Vincent swore at Mr. Eyre," and "When we got back home, he said something to him." He also testified that Vincent did not say anything to Mr. Eyre when this occurrence took place. The witness was asked if he heard the complainant swear at Mrs. Eyre and he testified that he did not see Mrs. Eyre.

Leona Ignoffio testified that she was sixteen years old and was a junior in high school. She was baby-sitting at approximately 10:45 p.m. across the street from 6331 North Wayne Avenue; that the complainant and his two friends came over to see what happened to her because she was two hours late. The complainant was crossing the street to go back home and she saw Mr. Eyre come from the building and they were yelling at each other. Mr. Eyre called Vincent a "dirty, rotten hillbilly." She saw Mr. Eyre kicking the complainant. She recalled it was in the hip but she did not recall which hip. She did not hear the complainant swear at Mr. Eyre. She also testified that it was possible that part of her view was obscured by a tree. She was at the side window when the fight took place and could see it because she had her glasses on; she saw part of the fight. She knew the boys had come to pick her up because her mother had called her about forty-five minutes before the complainant came over.

A police officer testified that he arrested the defendant; that the complainant had bruises on his elbows and his lip was swollen. The defendant admitted striking the boy. He testified to the following:

"Q. Were there any marks or bruises on him?

"A. No, I didn't notice.

"Q. Did you notice if his glasses were broken?

"A. He claimed they were. He didn't have them on. He didn't have any ...

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