Appeal from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding. Judgment affirmed.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
The defendant, Atilano Garcia, was charged in a two-count indictment with the offense of Aggravated Battery under section 12-4(a) of the Criminal Code. (Ill Rev Stats 1963, c 38, § 12-4(a).) A bench trial resulted in a finding of guilty and the defendant was subsequently sentenced to the penitentiary for a minimum of six years and a maximum of ten years in accordance with the penalty provisions of the cited section.
On appeal, the defendant raises five alleged errors as grounds for reversal. First, the evidence established self-defense. Second, the State's cross-examination of a defense witness was improper. Third, his defense counsel at the trial was incompetent. Fourth, the closing argument by the State was improper and prejudicial. Fifth, the evidence established, at the most, a violation of section 12-4(b) of the Criminal Code (Ill Rev Stats 1963, c 38, § 12-4(b)).
On November 28, 1964, one Jose Castillo, the complaining witness, his brother Tony and Hector Gomez went to the Latin Club located on the second floor of a building in Elgin, Illinois. Tony and Hector were members of a band that was playing at the club that evening and Jose was a patron. About two and one-half hours after they arrived, the defendant entered the club and ordered some Spanish food to take out. While drinking a beer and waiting for his order, an argument commenced between the defendant and Tony, neither having known the other beforehand. The argument continued while the two went into the washroom at which point Eustacco Montana, one of the owners of the club, interceded and told them that he did not want any trouble in the club. This temporarily subdued both parties and they left the washroom. Tony testified that, while in the washroom, he became aware of the fact that the defendant had a gun on his person. The defendant went to the bar to inquire about his food order and Tony went to a table where his brother and other friends were gathered. At this time he told the group that the defendant had a gun, but he testified that he did not know if his brother, Jose, had heard him. The argument began anew between Tony and the defendant and Montana again stopped them and told the defendant to wait in the stairwell for his food. At this time some of the patrons had risen from their tables with beer bottles in their hands and Montana was holding Tony at the doorway to the staircase.
The defendant started down the stairs and when he had reached about the fifth step, Jose, the complaining witness, slipped by Montana and ran down the stairs toward the defendant. Jose testified that he had nothing in his hands or on his person when he went down the stairs and there is no evidence to the contrary.
From this point there was a conflict of testimony. The defendant testified that he was kicked from behind by someone but he did not know who it was; that he quickly turned around and fired two shots by "fanning" the gun. Jose testified that, as he ran down the stairs, the defendant pulled out a gun; that Jose kicked at him simultaneous to defendant's firing after which Jose turned and started up the stairs when defendant shot the second time; that the bullet from the second shot entered the inside of his right leg at mid-calf and departed on the outside of the same leg just below the knee; that he was taken to the hospital and released two and one-half days later. The leg was exhibited to the court and counsel.
There was further testimony by Jose to the effect that the defendant approached him just prior to trial, on two occasions, and desired to reimburse him for any damages incurred by the incident. Jose testified that on one of these occasions, he "guessed" it was defendant's attorney who waited outside of his home during one of defendant's visits.
It is first contended that the record in this case established an act of self-defense on the part of the defendant. Section 7-1 of the Criminal Code states as follows:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." (Ill Rev Stats 1963, c 38, § 7-1.)
This is an affirmative defense. (Ill Rev Stats 1963, c 38, § 7-14.) Unless the State's evidence raises the issue involving the alleged defense, the defendant must present some evidence thereon. (Ill Rev Stats 1963, c 38, § 3-2.) In People v. Williams, 56 Ill. App.2d 159, 205 N.E.2d 749 (1965), the court after setting forth the necessary elements of self-defense, went on to state at pages 165-166:
"There is a further principle involved, when, as in the instant case, the defendant uses deadly force. This principle limits the use of deadly force to those situations in which (a) the threatened force will cause death or great bodily harm or (b) the force threatened is a forcible felony."
The uncontradicted facts before the trial bench in this case disclose that Jose had nothing in his hands nor on his person when the offense occurred, while the defendant, by his own testimony, admitted that he did not take the time to find out the type of force with which he was threatened. He testified that, at the moment he fired, he did not know who was behind him, what, if anything, the person approaching him had in his hands and that he did not know at whom he was shooting. This is not the quality or type of evidence that would justify the use of deadly force. The trial court was correct in finding that self-defense was not established.
The next contention is that the State committed prejudicial error while cross-examining the defense witness, Montana. On direct examination, the defense elicited the fact that the witness was a partner in the operation of the Latin Club where the offense took place. On cross-examination, the State inquired as to whether the witness had a license to serve liquor at the establishment. He responded, "That's what we are trying to get." When asked if it was against the law to serve liquor without a license, he replied, "I guess so." He was then asked what the results might be if the city council found out what had happened at the club and he admitted that he would not get a liquor license.
Based upon these questions and answers and in reliance upon the case of People v. Hoffman, 399 Ill. 57, 77 N.E.2d 195 (1948), the defendant seeks a reversal. In the Hoffman case, the sister of and witness for the defendant was asked on cross-examination about being indicted for burglary. The trial court overruled an objection and allowed the witness ...