Appeal from the Municipal Court of Chicago, Second Municipal
District of the Circuit Court of Cook County; the Hon. HARRY H.
PORTER, Judge, presiding. Affirmed and remanded with directions.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, John W. Sessions, prosecutes this appeal following a jury verdict finding him guilty of the crime of battery. The court entered judgment on the verdict and sentenced defendant to six months in the County Jail plus a $500 fine. No question is raised on the pleadings.
The complaint charged that the defendant committed the offense of battery on May 7, 1965, in that he ". . . did, without lawful or legal justification . . . knowingly and intentionally cause bodily harm by physical contact with . . . complainant Paul J. Steffen, to-wit; struck Paul J. Steffen with his fists in violation of Chapter 38 Section 12-3 of the Illinois Revised Statute."
The facts are, for the most part, not in dispute. On May 7, 1965, at about 10:15 p.m., Mrs. Mary Steffen, who resided on premises which are litoral property on Lake Michigan in Winnetka, heard the horn of a police boat followed by the voice of an officer on the boat ordering someone to leave because they were trespassing on a private beach. Accompanied by her husband, the complainant, Paul J. Steffen, she left her house and proceeded down the stairs to the Steffens' private beach. From the beach she observed about fifteen youngsters, who were standing about three hundred feet away from her, standing in a line; the boys in the group were shouting obscenities at the police boat, and were also exposing their naked buttocks to the boat. Then four from the group began walking towards the Steffens, and crossed on to their property. At this point the four young men went through the same routine of exposing their back sides to the police boat. Mrs. Steffen sent her eldest son, Paul Steffen, Jr., to ask the boys to leave. One of the boys who had come on to the Steffens' property was the defendant, and another was George Hildreth. Young Steffen informed the boys that they were on private property and that they should leave, which they began to do. Then a girl, Rona Barth, appeared, and accused Mr. Steffen, in an obscene way, of being a police officer. Miss Barth then began to follow the young men off of the Steffens' property; however, she walked backwards, and constantly deluged Mrs. Steffen with a highly insulting stream of profanity, calling her, among other things a "f ing woman" and a "f mouth."
During this period, Mrs. Steffen walked along the beach with the Barth girl. When Miss Barth reached the marker line of the Steffens' property she called Mrs. Steffen a "s____ mouth." Mrs. Steffen grabbed her by the hair, and threatened to hold her until the police arrived. Mrs. Steffen held the girl by the hair for a few seconds and then let her go. The Barth girl then ran over to the other boys, who had by now left the Steffens' property, screaming to the defendant, "John, John!" The defendant and George Hildreth then came back on to the Steffens' property. Rona Barth aimed a punch at Mrs. Steffen, and when Mrs. Steffen raised her arms to defend herself, the defendant forced her arms downward. Mr. and Mrs. Steffen both testified that the defendant struck Mrs. Steffen at this time. Mr. Steffen then went to his wife's assistance, and the defendant, in inflammatory language, asked Mr. Steffen if he wanted to fight. Witnesses for the State testified that the first punch was thrown by the defendant; a witness for the defense stated that Mr. Steffen threw the first punch. In any event, it is uncontradicted that the complainant, after the first punch was thrown, grabbed Sessions around the neck, and they both fell to the ground with the defendant on top of Steffen. While he was on top of him, the defendant punched Mr. Steffen. There was also testimony to the effect that George Hildreth struck both Steffen and his son, Peter, during the altercation.
Mr. Steffen testified that the defendant was on top of him for approximately forty-five seconds, and that after the fracas he had bruises on his cheek and back. Some young friends of the Steffens' children, who had gathered on the Steffens' beach for a party that night, then pulled the defendant off of Mr. Steffen, and Sessions and Hildreth fled. Shortly thereafter they were picked up by the police and arrested. On June 15, 1965, the date of trial, the defendant moved for a severance of his complaint from two other complaints, one of which charged George Hildreth with battery, and the other of which charged Rona Barth with disorderly conduct. This motion was denied, and the defendant, Barth and Hildreth were all tried together. All three were found guilty, the jury noting on the verdict as to Sessions that it recommended clemency.
The defendant contends on appeal that the court erred in failing to grant his motion for a severance; in admitting improper, irrelevant and inflammatory testimony; in sentencing the defendant to the maximum punishment under the Statute; and in not conducting a hearing in aggravation and mitigation, as provided by statute, since the defendant was statutorily entitled to consideration for probation.
The defendant concedes that people jointly indicted are to be tried jointly, unless the individual defenses deprive one or more of the defendants of a fair trial. People v. Grilec, 2 Ill.2d 538, 119 N.E.2d 232. Furthermore, the question as to whether a severance should be granted is largely one within the sound discretion of the trial court. People v. Connolly, 33 Ill.2d 128, 210 N.E.2d 523. Where two or more defendants have not been joined together in a single charge the Criminal Code provides:
The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. (Ill Rev Stats 1965, c 38, § 114-7.)
The situation under which offenses and defendants can be joined in a single charge is defined as follows:
(a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.
(b) Two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same act or in the same comprehensive transaction out of which the offense or offenses arose. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. (Ill Rev Stats 1965, c 38, § 111-4.)
We agree with defendant's contention that two defendants cannot be convicted jointly at the same trial of separate and distinct offenses growing out of separate transactions. However, we cannot agree with his contention that there were "no related offenses" present in the instant case so that the doctrine of joinder would not apply. The offenses charged against the three defendants at trial arose out of one comprehensive transaction participated in by all three defendants. The evidence shows that the defendant's companion, Rona Barth, having trespassed on to the Steffens' private beach, directed vicious obscenities at Mrs. Steffen, causing the latter to grab her by the hair. The defendant and the Barth girl then attacked Mrs. Steffen, immediately following which the defendant and Hildreth both pummeled Mr. Steffen. The offenses charged all arose naturally out of a single comprehensive transaction of violence and lawlessness engineered by the defendant and his two companions, and therefore, the three of them were properly tried together. As the trial judge did not abuse his discretion in denying the defendant's motion for a severance we will not, on review, overrule his decision. People v. Patris, 360 Ill. 596, 196 NE 806.
The defendant next contends that the court erred in allowing certain evidence to be considered by the jury. He objects to the testimony that Hildreth assaulted the Steffens' son, Peter; that Rona Barth used foul language; and that Hildreth kicked Steffen. He claims that this evidence was irrelevant and inflammatory. We conclude that the evidence complained of was relevant to the charges placed against Hildreth and Barth who were properly being tried along with the defendant, and was, therefore, admissible. Where several defendants are tried jointly, evidence which is competent against one or more of them is admissible. 23 CJS, Criminal Law, § 1032(4). Furthermore, upon examination of the record, we find that the trial judge was ...