Appeal from the Circuit Court of Cook County; the Hon. DAVID
CERDA, Judge, presiding. Judgments affirmed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty after a bench trial of the crimes of public indecency and battery. Defendant was placed on probation for a period of one year on each finding and sentenced to serve the first four months of each term at the Illinois State Farm at Vandalia, the terms to run concurrently.
Complaining witness, Marcie Bukala, testified that at approximately 8:30 a.m. on January 16, 1968 she was walking in the vicinity of 62nd Place and Central Park Avenue in Chicago on her way to a beauty school. Under her arm she carried a bag containing nurse's shoes and a wig. The witness stated that defendant approached in a blue automobile to within five feet of her and asked if she wanted a ride. Miss Bukala testified she kept walking without speaking a word and crossed the street. Defendant thereupon drove his automobile onto the sidewalk approximately four feet in front of her, opened the door and exposed his penis to her.
Miss Bukala testified that she began to run back across the street and that defendant turned the automobile around and again drove it onto the sidewalk near her. He alighted from the vehicle and chased Miss Bukala, who dropped the bag which she was carrying under her arm. Defendant picked up the bag and, from five feet away, threw it at Miss Bukala and struck her in the face with it. He cursed her and stated, "Next time I get you, I'll kill you." Defendant then got back into his automobile and drove away.
Miss Bukala testified that she thought the vehicle driven by defendant was a Tempest automobile, but was not certain; that she thought the first three characters of the vehicle's license number were "PL 5," but was not certain; and that defendant was wearing a black leather jacket and black gloves at the time of the assault. The police were notified of the incident later that day.
On January 20th, four days after the incident, Miss Bukala was seated in her brother's automobile parked near 62nd Street and Homan Avenue waiting for her brother to return from a nearby store, when she observed defendant drive by in a blue automobile. After her brother returned to his automobile, defendant's automobile passed a second time and Miss Bukala's brother followed in pursuit in his automobile. Defendant stopped his automobile a short distance away to pick up two passengers and Miss Bukala's brother stopped his vehicle nearby, got out, and went to the driver's window of defendant's automobile. Miss Bukala testified that she then alighted from her brother's automobile, went to defendant's automobile "to make sure it was him," and stated to her brother, "Al, that's him." When defendant saw Miss Bukala, he sped away in his vehicle. The police were again notified.
Several days later, Police Officer Frank Lynch, who had previously received a description of Miss Bukala's assailant, was detailed to patrol an area of the city where a person fitting the assailant's description "was operating . . . from 9:00 to 9:30 in the morning." The officer observed an automobile driven by defendant traveling aimlessly in the area, and after following the automobile for five blocks, the officer ordered it stopped. Defendant matched the description which the officer had of Miss Bukala's assailant and defendant was placed under arrest.
The testimony of Miss Bukala's brother substantially corroborated the testimony of Miss Bukala concerning the events which took place on January 20th. Defendant's objection to Miss Bukala's brother's testimony was overruled.
John Tadla testified that he lived with his parents in the 6300 block of South Latrobe Avenue in Chicago and that he was employed in Lincolnwood, Illinois. He testified that he worked until 7:00 a.m. on the morning of January 16, 1968 and that he left work approximately 7:30 a.m. and went to a nearby bowling alley where he usually had breakfast with several of his fellow employees. He testified that he remained at the bowling alley until 8:30 a.m. and then proceeded home, a trip which takes from 45 minutes to an hour to drive. Defendant stated he arrived home approximately 9:00 a.m., told his mother he was home, and went to bed.
Defendant further testified that on the morning in question he was operating a 1966 Ford Galaxie automobile and also testified that neither he nor his mother owned or operated a Tempest automobile. Defendant denied owning a black leather jacket or black gloves, and further denied assaulting Miss Bukala, exposing himself to her, or speaking to her on the morning in question.
Defendant's mother testified that defendant returned home from work at approximately 9:00 a.m. on the morning in question and that on that date he was driving a 1966 Ford Galaxie automobile. She further testified that defendant did not own a black leather jacket or black gloves. Defendant's supervisor at work testified as to defendant's good moral character and reputation in the community.
Defendant first maintains that the trial court was without power to admit him to probation for a period in excess of the maximum term for which he could have been imprisoned under the statute defining the crime with which he was charged. He argues that the trial court was in error in placing him on probation for a period of one year on each finding of guilty because the statutes under which he was found guilty set the maximum term of incarceration at six months. (Defendant's argument in this regard must be limited to the period of probation set with respect to the battery finding, since the maximum term of imprisonment which could have been imposed on a finding of guilty of public indecency was changed from six months to one year prior to January 16, 1968, the date of the incident in question.) See Ill Rev Stats 1967, c 38, pars 11-9, 12-3.
No case from Illinois has been cited, nor have we found any, dealing with the question of whether a defendant, after a plea, a finding or a verdict of guilty, may be placed on probation for a period which exceeds the maximum term of imprisonment to which he may have been sentenced under the statute defining the crime of which he was convicted.
In those jurisdictions where the length of the period of probation may not exceed the maximum period for which a defendant could have been imprisoned, the question is specifically governed by statute; but in those jurisdictions where the probation statute does not specifically cover the question, it has been generally held that the length of the period of probation may exceed the maximum term for which a defendant may be imprisoned. See 24 CJS, Criminal Law, §§ 1571(4), 1618(9), and the cases cited therein. (See also Driver v. United States, 232 F.2d 418; Hollandsworth v. United States, 34 F.2d 423; United States v. Sumpter, 287 F. Supp. 608; 18 USCA, par 3651.) We are of the opinion that a defendant ...