NOVEMBER 9, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
CLYDE ATKINS, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
In a non-jury trial defendant was found guilty of aggravated battery and sentenced by the court to a term of five years probation, the first six months thereof to be served in the County Jail. On appeal defendant contends that the evidence established that he acted in self-defense and that in any event the State failed to prove his guilt beyond a reasonable doubt. The facts follow.
At approximately 2:10 P.M. on November 19, 1968, the defendant was involved in an automobile accident at the intersection of 64th Street and Stewart Avenue in the City of Chicago. The two vehicles involved in the collision were a 1961 Ford Thunderbird driven by defendant and a 1961 Chevrolet driven by one Theodore McGowan. McGowan's car struck the driver's side of defendant's car as defendant was proceeding southbound on Stewart Avenue through the intersection. After the accident both drivers stepped out of their cars and defendant walked toward McGowan. The events which followed are set forth in the testimony of the participants and of the two eyewitnesses.
McGowan testified that after some conversation he announced that he was going to notify the police and that the defendant thereupon struck him with his hands. He stated that as he turned, the defendant proceeded to strike him with his fists and kicked his head causing him to lose consciousness.
James Lewis testified that he observed the fight from a few feet away, that as McGowan prepared either to turn away or reach for his pocket, the defendant knocked McGowan to the ground with a single blow and continued to hit and kick him as he lay in the street. Lewis ran into a nearby school building and telephoned the police. Upon his return to the scene he observed the defendant continuing to hit and kick McGowan.
Police Officer Augustine testified that he happened upon the scene while on a routine patrol in the area. He observed a group of people gathered around one man beating another. He testified that he saw the defendant hit McGowan with his fist and kick him two or three times. He commanded defendant to stop and the defendant stepped back. McGowan lay on the pavement apparently unconscious.
Defendant testified that McGowan informed him that he had insurance but that he was not going to report the accident. Then, according to defendant, McGowan said, "I can handle it," and reached for his front pocket. Defendant testified that he then hit McGowan three times while he was standing and once after he fell to the pavement.
Defendant contends that the evidence proves that he acted in self-defense. The applicable statute provides:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force." (Emphasis provided.) Ill. Rev. Stat. 1969, ch. 38, par. 7-1.
The evidence in the instant case reveals that the defendant initially struck McGowan as the latter either reached for his pocket or moved as if to turn away. Even if we were to assume however that the defendant reasonably believed McGowan was reaching for a weapon, the beating the defendant administered to McGowan far exceeded that necessary to defend against the threat presented. The testimony of the bystander Lewis and of Officer Augustine reveals that the defendant kicked McGowan repeatedly as he lay in the street no longer posing a threat to defendant's safety. Defendant's conduct was far beyond that which was necessary to defend himself and the beating he gave McGowan reveals such abnormal cruelty as to warrant the imposition of the judgment.
LEIGHTON, P.J., and LORENZ, J., concur.
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