APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
GREALIS, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Jeff Fort and Paul Martin were jointly charged with the offense of battery (Ill. Rev. Stat. 1967, ch. 38, par. 12-3) upon the complaint of the alleged victim, Travis Davis. The case was tried before a jury which returned a not guilty as to defendant Martin and found defendant Fort guilty as charged. Defendant Fort, the appellant in this case, was sentenced to six months confinement at the Illinois State Farm at Vandalia.
Defendant raises the following issues on appeal: First, can a conviction for battery stand where the only evidence for the State was the testimony of complainant who was himself facing a battery charge, and where the jury rejected complainant's testimony, and where defendant and others testified that complainant was the aggressor. Second, does the constitution permit a black defendant to be tried by a jury which included one black juror so as to appear to satisfy constitutional requirements and from which all other prospective black jurors were excluded by use of State's peremptory challenge because they were black, and which was selected under rules which systematically underrepresented the peer group of defendant in jury panels. Third, should the conviction of defendant be set aside because he was arrested, charged and tried without any prior judicial or quasi-judicial determination that there was probable cause against him and not against Davis and because the State has knowingly and intentionally refrained from prosecuting Davis. Fourth, was the overall conduct of defendant's trial so unfair and prejudicial as to warrant reversal.
Because of the various issues raised in this appeal, we will begin by examining the evidence introduced at trial.
Travis Davis is the complaining witness. He testified that on October 29, 1968, at 5:15 P.M. he looked out the window of his apartment and saw a light on in his automobile. He immediately went out of the building and saw a young boy going through the car. The boy began to run and Davis pursued him, catching him a few blocks later. Davis then, while holding the boy by his arm and the front of his insulated jacket, attempted to locate a patrol car, and when this proved unsuccessful, a public telephone so that he could summon the police. The quest for an unoccupied phone brought Davis and the boy to the Wonder Food Store. While he was outside waiting for a phone, a crowd began to gather. Fort approached him and asked what he intended to do with the boy to which he responded that he was holding him for the police. The boy's mother approached him and asked that the boy be let go. He refused to do so until such time as the police would arrive. When the boy's mother attempted to tug her son away from Davis, Fort yelled, "Let's get the M____ F____!" then attacked him from the left side. Mr. Martin and others joined in the attack. Davis was pushed through a plate glass door, cutting his backside. Davis was being dragged, while being beaten, into 67th Street. He tried to hold on to somebody to keep from falling down, and ended up clutching defendant Fort's leg. Mr. Fort was beating him about the head at that time, but Mr. Martin's whereabouts were then unknown to him. When the police arrived, Davis was on his knees and was being pummeled by Fort. Upon the police command "Let him go!", he released Fort's leg. He never struck Fort or Martin. Davis was hospitalized for three days. On cross-examination, Davis noted the unusual garb of Martin on the day of the battery (cashmere overcoat, huge gold earrings) but admitted that he did not give the police a description of Martin when first brought to the police station.
Raymond Smith was the police officer who arrived on the scene of the disturbance. Smith testified that he proceeded to the Wonder Food Supermarket in regard to a call that a boy was being held for the police. Upon arriving he was confronted by a large crowd of 100 or more people, and a smaller group of males who were beating someone unidentified at the time. Upon command all the aggressors but Fort fled. Fort continued to strike Davis until Smith placed his revolver to Fort's head. Davis was bleeding, and his clothes were torn; Fort's clothing seemed rather orderly and untorn, and he was not bruised or bleeding. Martin was not seen by Officer Smith when he arrived.
At the station, Oliver Reed, the boy that Davis was holding for the police, was examined by Smith who did not notice any bruises or marks about the boy's neck. Both the boy and his mother refused Smith's offer to procure medical attention for him.
Oliver Reed testified for the defense that Davis grabbed him "around the coat and the collar and the neck" and dragged him around the corner. Oliver had trouble breathing. Oliver's sister, Madeline, his mother, and others asked Davis to release him. Oliver denied being in Davis's car.
As to the location of the disturbance, Oliver testified that Fort was present, that Fort asked Davis to let Oliver go, that Oliver did not hear Fort use any swear words, that Davis swung out at Fort, knocked him against the window and then knocked him into the street.
On cross-examination Oliver testified that he knew Fort and Martin from the neighborhood and that they were his friends.
Madeline Reed is Oliver Reed's sister. She testified for the defense that she first saw Davis dragging Oliver down the street, and that Oliver was "hollering and crying trying to fight back." She asked Davis to let her brother go. He hit her hand and told her he was taking Oliver to the police. She then went to get her mother who went with her to the Wonder Food Store. She heard Fort say to Davis, "Let him go. His mother is standing here, and we will wait for the police." She never heard Fort swear. Somebody then grabbed for Oliver's coat and Davis swung. "Everybody jumped him."
Mrs. Rena Reed is Oliver's mother. When she arrived at the Wonder Food Store she saw her son standing with Davis who had his hand around Oliver's neck. She asked Davis to release him until the police came. Davis replied, "Before I let go I will die, and if anybody touches me, this kid * * * I will kill him." People were politely trying to get Davis to let go of the boy. She didn't hear any "bad words." All at once a fight broke out. She was pushed back into the crowd and couldn't tell who was involved.
Defendant, Jeff Fort, testified that he was driving to the Wonder Food Store to shop. When he stepped out of his car, he noticed what appeared to him to be a man beating his son. A girl ran up to the man and asked him to let her brother go. Fort then asked the man (Davis) to stop choking the boy. Fort tried to give Davis literature to distract him, but Davis refused to be distracted. Mrs. Reed arrived and pleaded with Davis to release her son. Davis refused. Fort never used improper language, nor did he ever swing at Davis. Davis hit Fort with his arm, driving Fort into the glass door after which Fort was dizzy. Davis then grabbed Fort around the waist and pushed Fort into the street. Fort tried to free himself by pushing Davis away. Both halted when the police arrived.
On cross-examination Fort testified that he was a gym instructor at the First Presbyterian Church.
Reverend Paul Martin testified on direct that he was wearing his ministerial attire on the day of the occurrence. He was wearing "big round earrings." He did not strike or otherwise make contact with Davis.
Defendant first alleges that Davis's testimony implicating Fort and Martin equally in the storefront episode was not believed by the jury. In making this argument defendant Fort tries to separate the facts of the incident into two distinct occurrences: one immediately in front of the Wonder Food Store and the other further out in the street. Thus, he argues that the jury disbelieved Davis's testimony as to the storefront occurrence in that Martin was acquitted and, further, that Officer Smith's testimony as to the street occurrence is silent as to the identity of the aggressor.
We must first reject the defendant's dichotomy of the incident. From Fort's testimony alone, we see a continuous series of events which led to Fort's being tried for battery. Attempting to distinguish the incident as defendant does (i.e., front of store versus street), can only serve to cloud the issue.
That being the case, we must consider the effect of Martin's acquittal upon Fort's conviction. The recent case of People v. Jones, 132 Ill. App.2d 623, sheds light on this problem. There the court stated:
"The rule is that where a verdict is reversed for inconsistency in such cases, the verdicts must have been based on precisely the same evidence, identical in all respects as to both defendants."
The court went on to quote with approval People v. Edwards, 81 Cal.App.2d 655, 661 as follows:
"When there is the slightest difference in the evidence as between two persons jointly tried the trier of facts may weigh the evidence and make allowance for such difference, and when that is done and one is acquitted and the other convicted, the fact that the evidence involves the acquitted person to some extent will not require the exoneration of the other."
• 1 Applying the rule of Jones to the case before us, we see that the defendant Fort's argument must fail. We find a great difference in the evidence presented as against Fort and Martin. The evidence against Martin was simply that Davis saw him there and that Martin struck Davis. No mention of Martin was made by Davis at the police station immediately after the incident, nor was any description given in spite of Martin's distinctive appearance. Again, Martin's distinctive appearance may have caused him to stick in Davis's memory and thus led him to be later erroneously identified as an assailant. Martin categorically denied ever striking Davis. Fort, on the other hand, admitted to "pushing" Davis. Davis's testimony involves Fort in the incident in a much more tangible way, and Fort's testimony as to the occurrence substantiates this. Also, there is the testimony of Officer Smith that upon his arrival Fort was striking Davis about the head, but that he never saw defendant Martin at the scene. The jury, by their verdict, determined that Martin was not proven guilty beyond a reasonable doubt, but that Fort was. Because of the difference in evidence as between the two defendants, we do not find that the jury's verdict was inconsistent so as to require the reversal of defendant Fort's conviction.
Defendant Fort next argues that Davis's testimony about the street episode showed no more than that Fort was protecting himself from Davis who had seized him. This argument appears to be predicated upon the theory that, first, there were two distinct episodes involved in the trial, a theory which we discounted above, and second, that the credibility of Davis's testimony as to the initial encounter between Fort and Martin has been permanently undermined by Martin's acquittal. We do not find this latter point convincing. The fact that the jury found Martin not guilty has nothing to do with its assessment of the credibility of Davis when testifying as to Fort's involvement in the incident. The jury, as the trier of fact, obviously accepted Davis's description of the occurrence. Thus, when viewing the entire occurrence, they found that Davis seized Fort to protect himself from the blows being rained upon him, rather than, as Fort alleges here, that Davis seized him without provocation and that Fort was merely defending himself.
Defendant Fort next asserts that Officer Smith's testimony had no bearing upon the identity of the aggressor. We fail to see how this could change the jury's finding. Smith's testimony showed only that at a certain point Davis was on his knees clinging to Fort's leg, that Fort was beating Davis about the head, and that Fort did not stop until Smith's revolver was placed to Fort's head. The identity of an "aggressor" could only be gleaned from the witness's description of how the beating originated. We reiterate that the evidence showed one continuous chain of actions, and we reject defendant's attempt to discuss the facts as two separate occurrences.
Defendant argues in the alternative that even if the jury did believe Davis's version of the facts, that the conflict in testimony between defendant Fort and complainant Davis as to the identity of the first aggressor creates, as a matter of law, a reasonable doubt as to the guilt of defendant. He cites the cases of People v. Eyre (1967), 83 Ill. App.2d 123, 227 N.E.2d 120 and People v. Lees (1965), 60 Ill. App.2d 254, 208 N.E.2d 656 as authority for this proposition. A careful reading of these cases shows them distinguishable from the case at bar. Both cases contain testimony which, standing alone, raises serious doubt as to the validity of the verdicts. Thus, in Eyre and Lees, the courts found that beyond mere contradiction, which may rightfully be resolved by the trier of fact, evidence was present that was so improbable or unsatisfactory as to raise a serious doubt as to the defendants' guilt.
However, the court in Eyre stated at page 132:
"[I]t is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact." (Emphasis added.)
An examination of the record before us discloses no such paucity of credible evidence as to cause a reversal of this case. The evidence as to the incident is admittedly contradictory as between the defendant and the complainant. However, the triers of fact, after hearing all of the evidence, and studying the demeanor of the witnesses, resolved the issue. Thus, defendant ...