Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Reversed in part, affirmed in
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Count I of the indictment against Eddie Boyd, defendant, charged him with the offense of attempt to commit robbery, and Count II with the offense of aggravated battery. The case was tried before a jury; defendant was found guilty on both counts of the indictment, and sentenced to one to five years in the penitentiary on each count, the sentences to run concurrently. In this court the defendant contends he was not proved guilty beyond a reasonable doubt, and that it is error to convict a defendant of two crimes arising out of the same transaction.
On December 31, 1966, John O'Dea, complaining witness, and Eddie Boyd, the defendant (accompanied by Leon Davis) were passengers on an elevated train. There is no question that a fight took place in the car in which the three were seated. The question to be determined by the trier of fact was the series of events leading up to the fight.
O'Dea testified that he had left his home at about 2:00 a.m., and had gone to a tavern at 75th and Exchange, where he had two beers; that after about 20 minutes he took a bus to 63rd and Stony Island and boarded the elevated train at about 4:00 a.m., on his way to visit a friend. The defendant and Davis were sitting across the aisle from O'Dea and began making remarks to him, which he ignored. The defendant crossed the aisle and asked O'Dea to give him a dime. When he replied that he didn't have a dime the defendant told him he had better give it to him or he would take all his money from him. When O'Dea continued to ignore him, the defendant returned to Davis, and after a conversation, both men crossed the aisle to O'Dea, demanding all of his money and threatening to take it. When he refused, the two young men started beating the 57-year-old O'Dea, calling him an indecent name and saying, "Kill the ____ ____." They continued beating him, banging his head against the window until the window was shattered and he was knocked insensible. He suffered multiple lacerations about the face, several cuts on the head, dentures broken beyond repair, lacerations inside his mouth, and two black eyes.
C.T.A. Police Officer Frank Kretz testified that he and his partner, James Crossin, were at the Cermak Road "L" Station waiting for a train. As it pulled in he noticed that one of the windows was broken and that there was a fight going on in the train. He saw one man holding the complaining witness by the back of the neck and punching him while another man stood in front of the complaining witness and punched him with both hands. Officer Kretz entered one door and his partner the other; Officer Kretz saw the defendant and Davis flee into the next car. The two officers went to O'Dea who was bleeding profusely about the face; the three then went to the car ahead where O'Dea pointed out the defendant and Davis as the men who had attacked him. Officer Kretz also pointed out the defendant in court. He further testified that the defendant had damp blood on both hands and that he wore three rings on each hand.
Officer James Crossin testified that as the train was pulling into the station he and his partner, Officer Kretz, saw the defendant and Davis beating a man whom he now knows as John O'Dea, the complaining witness. They entered the car and saw the defendant running into the next car. After checking the condition of the victim, the two officers and O'Dea went to the other car where O'Dea pointed out the defendant and Davis. Officer Crossin further testified that when he was waiting on the platform he saw the defendant standing in front of O'Dea, striking him about the face and head, and that O'Dea seemed almost unconscious at the time. He stated that he noticed fresh blood on the defendant's hands and added that the lighting conditions in the car were very good. He and his partner then arrested the defendant.
The defendant testified in his own behalf as follows. He was a short-order cook in a restaurant, and on the night in question had worked from 8:00 p.m. to 4:00 a.m., after which he went to Cottage Grove "L" Station with Leon Davis; they were going to a party on the west side. They sat across the aisle from O'Dea who "was very intoxicated and he was down between the seat." The defendant picked him up and put him on the seat, after which O'Dea started talking to him, asking if he knew where there were any colored girls. The defendant said he would rather not listen to his conversation, and O'Dea started to "cuss" him and called him "nigger." He still refused to talk to O'Dea and O'Dea slapped him. Davis restrained the defendant from slapping O'Dea, but when O'Dea hit him again the defendant hit him back and they started fighting. He testified that he had only one ring on his right hand. The defendant further stated that he and Davis then went into the other car, after which the police officers came in and arrested them both, handcuffed them and started beating and kicking them. He stated that later, when they were taken to the police station, one of the officers put a gun to Davis' head and said he ought to be killed. The defendant denied he had asked O'Dea for any money.
In rebuttal Officer Kretz testified that he had not kicked or beaten the defendant on the occasion of his arrest, and that he had not seen anyone put a gun to defendant's head and threaten to kill him. He stated that in his opinion O'Dea was not intoxicated on the morning in question. Officer Crisson also testified in rebuttal that no one struck or beat the defendant at any time or threatened to kill him. He also stated that it was his opinion that O'Dea was not intoxicated.
The question for the trier of fact was which witnesses were telling the truth. The jury believed the testimony of O'Dea, the complaining witness, and the officers, which they had a right to do. It has been repeatedly held so often that it requires no citation of authority that where the evidence is conflicting and cannot be reconciled, it is the duty of the trier of fact whether judge or jury to determine the credibility of the witnesses and the weight given their testimony; and a reviewing court cannot substitute its judgment for that of the jury or the trial court, nor can it disturb a verdict of guilty on the ground that the evidence is not sufficient to convict, unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of defendant's guilt. People v. Tensley, 3 Ill.2d 615, 122 N.E.2d 155. The testimony of the State's witnesses in the instant case does not fall within that classification. The evidence was sufficient to convict the defendant beyond a reasonable doubt.
The defendant makes the further argument that since the robbery attempt and aggravated battery were a result of the same transaction it was error to convict him of both crimes.
This question has been before the Illinois courts several times. In People v. Quidd, 403 Ill. 15, 85 N.E.2d 179, the defendant was indicted for the crime of larceny by embezzlement; he was tried on two counts of the indictment, the offense charged in each relating to the same transaction. The first count charged embezzlement by a public officer, and the second charged embezzlement as agent. On trial the defendant was found guilty upon both counts, and the court sentenced him to the penitentiary for the same term on each count. The court held that there was no error in the trial court's sentencing defendant on each of two counts relating to the same transaction, and said at page 20:
"Where there are two counts in an indictment growing out of the same transaction, the effect of two verdicts is the same as a finding that the defendant is guilty as charged in the indictment. . . . The sentences were not imposed to run consecutively. They necessarily run concurrently, as both offenses are but one transaction, and defendant was not prejudiced thereby."
In People v. Stingley, 414 Ill. 398, 111 N.E.2d 548, an indictment in two counts was returned against the defendant. The first count charged an assault with intent to rape, and the second count charged an assault with intent to murder. Both arose out of the single series of acts committed upon the same victim at the same time and place. The court found the defendant guilty on both counts and sentenced him to a term of 10 to 14 years on each count, the sentences to be served "cumulatively." The defendant contended that the trial court was without authority to impose two consecutive sentences under a single two-count indictment naming offenses in the same transaction. The Supreme Court took the view that the case raised a question of first impression in Illinois, and cited People v. Quidd, supra, holding that when sentences are imposed to run consecutively the defendant is necessarily prejudiced. The court said at page 404:
"We think the People, when they elect to prosecute two separate felonies under two counts in the same indictment, are ...