APPEAL from the Circuit Court of Cook County; the Hon. FELIX
C. BUOSCIO, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Following a bench trial, Jessie Carter was convicted of the offense of aggravated battery (Ill. Rev. Stat. 1965, ch. 38, par. 12-4). Judgment was entered on the finding and he was sentenced to a term of not less than two nor more than three years in the Illinois State Penitentiary. On appeal he contends that the evidence presented on the issue of self-defense was, at a minimum, sufficient to create a reasonable doubt of guilt and that the trial court misapprehended the law with respect to the duty of one who is assaulted to retreat.
The evidence presented by the State established that Charles McKinney was, without apparent provocation, shot by the defendant, a bartender in a lounge in which McKinney was a customer. As a result of the shooting, McKinney lost the sight of his left eye, suffered a broken finger, and received permanent scars.
Defendant does not deny the shooting. At trial, however, he testified as follows in an attempt to establish self-defense. McKinney and two other men entered the establishment at approximately 8:45 P.M. on the evening in question. After they had been served a drink, McKinney offered to wager defendant that he could get a dog to walk the bar in ten seconds. Defendant attempted to accept the wager, but when it appeared to McKinney that he was not to risk his own funds on the wager it was called off. A short while later McKinney again offered defendant a wager, this one involving McKinney's physical attributes. Again nothing came of the offer since defendant proposed to cover the bet with funds other than his own. (Apparently he intended to use the money from the cash register.) One of McKinney's companions then departed. When they had been on the premises for an hour, the other companion departed, stating that he was going to get something to eat.
McKinney then attempted to start a conversation with a woman who was seated at the bar. Defendant was nearby washing glasses when a record having something to do with a "do right woman" began to play on the juke box. Defendant commented that if a woman were a "do right woman" she would have a "do right man." McKinney volunteered, "I got one" to which defendant responded, "You haven't got nothing." The conversation in the bar had been friendly up to this point, but McKinney, apparently took umbrage at defendant's comment and threatened to punch him in the eye. Defendant went about his business of waiting on other customers and washing glasses, several times admonishing McKinney to "forget it." McKinney was not pacified however, and when defendant offered to buy him a drink and placed one before him, he knocked it over saying, "I'll buy you."
McKinney continued to voice the threat and defendant persisted in his advice that he forget it. Finally defendant said to McKinney, "go ahead and punch me." Jumping off his stool, McKinney struck defendant in the face, causing him to fall backwards against the rear area of the bar. He held his face in his hands as he fell.
Defendant then testified as follows:
"* * * I glanced up and he was laying about like this, and I reached under the bar and grabbed the pistol and shot twice, and I saw his hand coming up from below the bar, thinking he was pulling the weapon or something, and I saw his hand come up and I shot the gun again and hit him in the hand, and he fell.
Later defendant further testified:
Q. When you shot the firearm, how many shots did you shoot?
A. When I first grabbed the pistol I shot twice, pow, pow. Then I saw his arm come up.
Q. Did you see any effects of the shot?
A. No, he didn't move. He didn't move at all when I first shot, so I didn't no [sic] whether I did or not. He just stood there, and I saw his hand come up, and I didn't know what was in it, so I shot at his hand and hit him in the hand. * * *."
Edwin Hill, called by the defense, testified that he was present at the lounge when the shooting occurred. Immediately prior to the shooting, he heard profanities exchanged between McKinney and the defendant. When he looked in their direction he saw defendant fall against the bottles at the rear area of the bar. McKinney ...