APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. ZIMMERMAN, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 1, 1971.
Defendant, Eleanor R. Munzer, was convicted after a bench trial of the offense of battery as defined in Sec. 12-3 of the Criminal Code, *fn1 and sentenced to probation for one year. She appeals from the judgment and contends that the court erred in the admission and exclusion of certain evidence; that the court erred in disposing of her cross-complaint for battery; and that she was not proven guilty beyond a reasonable doubt.
Since the complaint and cross-complaint arose out of related incidents, the cases were called for trial together. The court proceeded to hear the complaint against the defendant brought by William Stephens, who was also defendant on the cross-complaint. Defendant Munzer is the divorced former wife of Robert Munzer. William Stephens is Robert Munzer's step-son who resided with him at 9430 Noel Street, Des Plaines, Illinois, where the altercation took place. WILLIAM H. STEPHENS, testified on behalf of the prosecution:
On September 23, 1969, at 9430 Noel, in Maine Township, he saw the defendant who he knew as his stepfather's former wife. It was approximately 4:30 P.M. and as he was walking across his front lawn, he observed the defendant walking across the lawn in the opposite direction toward the side door of his home. When he observed her, he turned and walked in the same direction as did defendant. He placed himself between defendant and the house. Defendant screamed profanities at him, as he proceeded to the driveway and up the steps to the main entrance onto a small porch. He then placed himself between her and the door. He did not say anything to her, but she continued screaming profanities calling him a bastard. He did not respond. His mother came to the door and he instructed her to call the police. Defendant was still screaming and had her hand raised. In the hand she was holding a paper bag which measured about 8 x 10 inches. She then struck him with the bag, its contents and her hand on the left side of his head. The bag broke and a 6 or 7 inch kitchen knife fell out. He restrained her by grabbing her arms and pushing her away. The defendant fell off the step onto the ground and a gun fell out of the bag. Defendant picked up the gun and pointed it at him. He came off the stoop and took the gun away from her. It was a toy gun. He asked her to leave the premises, but she insisted that she wanted to see her daughter and she also said that she wanted to enter the house to ask about her oldest daughter. He took the gun from her by grabbing it. They both ended up on the ground. Defendant got up and proceeded to walk into the back yard and when she tried to get in the back door, he stepped in her way. At this time she struck him with her open hand. He did not strike her. She started walking back and he remained between her and the house.
There was no conversation. She wasn't making any sense. As they started to walk back to the side of the house, she picked up the knife that had fallen out of the bag and threw it into the main entrance of the house. She then proceeded to walk to the front of the house. As she walked toward her car, he kept himself between her and the house. She then entered her automobile and drove off.
His mother and a neighbor, Timothy Greenier, were at the scene during the altercation.
On cross-examination he testified that he considered defendant's conduct as threatening when he saw her approach the house. He did not know if his stepfather was behind in his alimony payments to the defendant. He felt that he was protecting the occupants of his home from violence and he was going to stop her. He would use force to accomplish it, just enough to keep her away from the house. At the time he became concerned about himself. When she fell, he did not help her arise.
ARNOLD A. ROSEN, testified on behalf of the prosecution:
He is an attorney. He represented Mr. Munzer in connection with certain post-decree divorce proceedings arising out of his divorce from defendant. An order had been previously entered by the Circuit Court, Divorce Division, restraining defendant from visiting Mr. Munzer's home.
On cross-examination he testified that the decree of divorce provided that Mr. Munzer pay alimony to the defendant, but that he had no knowledge of any default in payment.
TIMOTHY GREENIER, testified for the prosecution:
On the day of the altercation he was at Mr. Munzer's home and saw the defendant walking toward the side door of the house. He could not hear her, but could see she was speaking. Stephens was present with his back toward him and he saw the defendant strike Stephens with the paper bag as they reached the door. There was a commotion and defendant kept approaching the door. Stephens asked his mother to call the police. Defendant again struck Stephens and she fell off the stoop. Stephens never struck the defendant. She was holding a gun and Stephens took it from her. Defendant then proceeded to the rear of the house. He came out of the house and heard the defendant yelling and screaming about seeing her daughter. Defendant again struck Stephens. Defendant continued screaming hysterically for a few minutes; then walked around to the side of the house, picked up the knife and threw it into the house.
On cross-examination he testified that he is a friend and classmate of Stephens and was visiting for the week. He observed Stephens restraining the defendant by grabbing her arms. ...