APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN
H. MAEY, Jr., Judge, presiding.
MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
The defendants, Kenneth Krebel and his brother Orvel Krebel, each entered a plea of guilty to the charge of aggravated battery, a violation of ch. 38, par. 12-4, Ill. Rev. Stat., 1967; disorderly conduct, a violation of ch. 38, par. 26-1, Ill. Rev. Stat., 1967; resisting a police officer, a violation of ch. 38, par. 31-1, Ill. Rev. Stat., 1967; Orvel Krebel also pled guilty to criminal damage to property, a violation of ch. 38, par. 21-1, Ill. Rev. Stat. 1967.
After a hearing in mitigation and aggravation, Orvel Krebel was placed on probation for two years on the condition that he serve six months in the Vandalia Penal Farm, pay medical expenses and make restitution. Kenneth Krebel was placed on probation for two years and required to serve sixty days in the Monroe County jail and make restitution.
Orvel and Kenneth Krebel, accompanied by their wives, were returning from the city of St. Louis to their home in Monroe County, Illinois on December 29, 1968. They both had been drinking heavily and a fight between the two of them arose in the car while they were driving home. They pulled their vehicle along the side of the road near the city of Columbia, Illinois, and resumed fighting. A passing motorist saw the defendants' car in a ditch, saw the defendants, fighting each other, and saw two ladies, the wives of the defendants, standing on the road screaming. He immediately notified Lieutenant Joseph Callis of the Columbia, Illinois Police Department who immediately proceeded to the scene. He placed them under arrest and instructed them to get in the back seat of the police car. They obeyed, but then got out of the police car and commenced fighting again. Lieutenant Callis attempted to separate the two brothers and while attempting to handcuff Orvel Krebel, he was struck in the mouth by the dangling part of the handcuff which he had attached to the right hand of Orvel Krebel. As a result, he suffered a chipped tooth, a cut lip and a black eye.
Lieutenant Callis did not know if he was hit with a portion of the cuff around Orvel Krebel's wrist, or the dangling part of the cuff. He also testified that he could not swear that Orvel used the handcuff for the purpose of hitting him. More police officers arrived on the scene and the defendants were subdued and taken to the police station while offering resistance to the efforts of the police to subdue them. Orvel Krebel was taken to the Monroe County jail in Waterloo, Illinois, and Kenneth Krebel was taken to the Columbia city jail in Columbia, Illinois. While in jail at Columbia, Kenneth knocked the bunk of the cell off the wall and it had to be welded in order to be repaired. In addition, he tore the faucet off the sink in the jail cell, which also had to be repaired.
The report of the probation officer disclosed that Kenneth was 25 years of age and Orvel was 27. Kenneth was married and had no children. Orvel was married and had two sons, aged 2 and 7. Kenneth had been employed by the McDonnell Aircraft Company, St. Louis, Missouri, as a sheet metal worker and riveter since November 22, 1965 at a gross pay of $587.00 per month. Orvel was employed as a coal foreman since April 19, 1967 at the Great Lakes Carbon Company, St. Louis, Missouri, at a gross pay of $670.00 per month. Both were honorably discharged veterans and had no prior arrests or convictions.
The Chief Adult Probation Officer in his report stated:
"During my interview with both defendants, I was impressed by their truthfulness in discussing the matter and also by the penitent attitudes they displayed in regard to this incident. They both are regularly employed and it is hard for us to conceive why these two brothers, who seem to be extremely friendly with each other, would become involved in a fight between themselves. However, the fact does remain that a police officer was assaulted which necessitated considerable dental work and this is inexcusable. The probation department does not wish to see these boys incarcerated in a penal institution, that would bring about their dismissal from their jobs, and the family they are supporting. It is our belief that possibly during their vacation period from employment they could be incarcerated in the Monroe County Jail for a time prescribed by the Court that would make these brothers realize the fallacy of attacking a police officer, however, at the time both were highly intoxicated. We also feel that compensation should be forthcoming to reimburse the City of Columbia, Illinois for any damages that were sustained during this affair."
At the hearing in mitigation and aggravation a supervisor from McDonnell Aircraft Company testified that Kenneth Krebel had worked under him for about four years and was an exemplary employee. The supervisor of the Great Lakes Carbon Company, St. Louis, Missouri, testified that Orvel Krebel was a company foreman who had recently been trained as a relief foreman so that he could fill any foreman's job in the plant. He was an outstanding employee. Other evidence indicated that the defendants were men of good reputation.
At the conclusion of the hearing the State's Attorney suggested that the report of the probation officer be used as a guide for punishment.
Defendants contend that the interests of society would best be served by allowing them probation without incarceration.
The Standards Relating to Probation recommended by the Advisory Committee of the American Bar Association on Sentencing and Review, provide in part:
"1.2 Desirability of probation.
Probation is a desirable disposition in appropriate ...