Appeal from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding. Judgment affirmed as modified.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty at a bench trial of the crime of aggravated battery and was sentenced to a term of 5 to 8 years in the penitentiary. On this appeal he maintains that the trial court erred in allowing into evidence matters relating to a past arrest which did not result in a conviction for an infamous crime, and that it was also error to admit, during the hearing in aggravation and mitigation, evidence of past arrests and other encounters with the law which had not resulted in convictions.
Henry Przybytek, the prosecuting witness, testified that he had been working on the far southwest side of Chicago until 3:00 a.m. on the morning of January 17, 1965, and that after work he proceeded to a cocktail lounge in the Rush Street area of the city where he consumed two drinks. About 5:00 a.m. Przybytek left the lounge and proceeded to a snack shop called "Feast-on-a-Bun" located on North Clark Street near Division Street.
The front portion of the restaurant was crowded and as the witness entered he attempted to go to the rear of the establishment. Przybytek testified that defendant was standing in the aisle speaking with another person, and as the witness attempted to pass, he brushed both defendant and the person with whom he had been conversing. The witness stated that defendant remarked to him, "What are you, one of those smart Dagos or something," and used profanity, to which the witness replied, "No cause for that." Defendant then stated, "Man, I'll kill you." Przybytek testified he replied, "That's pretty stupid to talk that way," and turned to walk away when he felt a blow on the side of the neck. Thinking that defendant had attempted to strike him on the chin, but missed, Przybytek turned around and felt another blow to the stomach. Defendant backed away and Przybytek testified he then saw the "glimmer" of a knife in defendant's hand, exclaimed "Oh, God," and turned and ran from the establishment with defendant close behind him shouting, "Run, run, run."
Przybytek crossed the street and entered another restaurant where he received treatment for neck and stomach wounds, both of which were bleeding. The police were summoned and arrived a short while later. Przybytek testified the officers first drove him around the block in an effort to locate defendant, but the witness became weak and was taken to a hospital where he underwent surgery and was hospitalized for a period of ten days. While in the hospital Przybytek identified defendant as his assailant from photographs shown to him by the police.
Defendant testified in his own behalf and stated that he was a free-lance artist working under the pen name of "Bashir Uden" and that on the morning of the occurrence he was in the "Feast-on-a-Bun" sketching a portrait of one of the patrons. Przybytek entered and interrupted defendant in his work, stating to him, "He don't want none of those things. Get away from him." The patron interjected that he requested defendant to sketch his portrait, but Przybytek again stated that the patron did not want a portrait. Defendant testified that Przybytek made a remark and then struck defendant, knocking off his spectacles. Defendant stated that he fell back against the service counter, took hold of a plate and "pushed it on to Przybytek . . . pushed it on him and he ran out the door." Defendant stated that he also fled the establishment, leaving behind his artist's portfolio, a large zipper-pouch containing art papers and supplies. He stated that he telephoned the "Feast-on-a-Bun" the following day to determine the whereabouts of the portfolio and was informed that it was in police custody, and that he was too busy thereafter to secure the portfolio from the police.
Defendant further testified on direct examination that some three weeks later he and his aide, Emanuel Bay, were returning from a painting job when they were detained by the police on North Avenue. Defendant testified he was asked his identity and was arrested. He further testified that his companion, Bay, was also arrested and that a carving knife was taken from Bay's possession which Bay had been using to cut and install rugs.
Police Officer Salvador Aguado testified for the State in rebuttal that he and his partner were cruising in their squad car near "Feast-on-a-Bun" at the time of the incident and were hailed to the aid of Przybytek, whom they drove to the hospital. Officer Aguado returned to "Feast-on-a-Bun" where he found an artist's portfolio with the name "Bashir Uden" inscribed on its cover. The name was checked through police files and it was found to be an alias of defendant. About three weeks later, the officer testified, he was cruising in his squad car and came upon a disturbance at North and Ogden Avenues. He recognized defendant as matching the description of Przybytek's assailant, requested defendant's name, which was given as "Bashir Uden," and arrested defendant. The officer testified he searched defendant and found a large butcher knife on his person.
Mr. Frank Guardi testified that he was employed at "Feast-on-a-Bun" on the morning of the incident and that he neither witnessed the altercation between defendant and Przybytek, nor did he see any blood on the floor after the men had left. He testified that he "saw two fellows run out in a hurry" and that the last one out of the establishment was defendant.
Defendant first maintains that the trial court erred in admitting into evidence matters concerning a past arrest which did not result in a conviction for an infamous crime. On direct examination defendant was asked a question by his counsel to which he responded, "I don't carry a knife." Upon cross-examination by the State, the following took place:
"Q. (Assistant State's Attorney) You say you don't carry a knife?
"Q. Did you ever carry ...