APPEAL from the Circuit Court of Cook County; the Hon. MEL R.
JIGANTI, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendant, Michael White, was charged with attempted murder and aggravated battery. He was tried by a jury in the Circuit Court of Cook County and found guilty of aggravated battery but acquitted of attempted murder. He was sentenced to a term of one to three years.
The issues on review are whether the conviction on one count and acquittal on another are legally inconsistent, whether there was a violation of defendant's constitutional guarantee against double jeopardy, whether one count of the indictment was void because it omitted to state the battery was done "without legal justification," whether the court erred in excluding a document which the defense maintains was probative of the defendant's mental state, and whether the defendant should have been sentenced to probation rather than the term of one to three years.
The defendant and two other blacks, Arlester Brown and Richard Mister, were in a car traveling west on 63rd Street near the Argo-Chicago boundary at 3:00 A.M. on March 29, 1969. Just west of Cicero Avenue they encountered a car driven by William Cummings, an off-duty police officer, with Kevin Daly as a passenger. Both are white and 22 years old.
There is conflicting testimony about the encounter. Cummings and Daly stated they were cut off several times by the blacks, while the defendant and his two friends contend Cummings pulled up alongside their car several times and "gunned their motor as though they wanted to race," nearly causing a collision.
As the two cars approached 7100 West on 63rd Street they stopped side-by-side as they waited for an on-coming train. The prosecution witnesses, Cummings and Daly, testified the defendant began talking to them and motioned to roll down the window. The defendant allegedly said, "I am going to prove I am a man," or "I am a better man than you." The defendant then displayed a pistol. Cummings replied that he was sorry and backed his car about 25 feet to the rear. He then got out of his car, opening his door half-way, yelled that he was a police officer, and commanded the defendant to throw the gun down and come out of the car. After an exchange of shots initiated by the defendant, Cummings had been hit three times but still managed to get back into his car and pursue the other vehicle, which sped away.
The defendant alleges Cummings pulled up next to his car at the railroad crossing, called out remarks about drag racing, and then began directing derogatory and obscene names at him, including calling him a boy. White said there weren't any boys in the car and asked, "Do I look like a boy to you?" Then he showed his blue steel automatic. According to the defendant Cummings said, "All right. I am sorry," and backed up. Cummings then allegedly shot through the rear window of the defendant's car without warning, narrowly missing one of the occupants. The defendant returned the fire "to protect myself and the people that were with me." After emptying the weapon, they fled in the car. White contended he did not know Cummings was a police officer until he was in custody.
This incident occurred against a background of increasing racial tension in the area. On March 21, 1969, Argo police prevented 35 to 40 white people from going through a viaduct separating Argo and Bedford Park. Later a caravan of whites did go through. That same night a meeting of the black community in Argo took place, at which a paper was displayed which had been distributed in the white community. It was entitled, "How to Kill a Nigger and Not Get Caught." The meeting concerned itself with devising a program of protection for the community. The defendant, a Viet Nam veteran with a sharpshooter's medal, allegedly carried a weapon as a part of this program of self-protection.
The defendant first contends the guilty verdict on the charge of aggravated battery is fatally inconsistent with his acquittal of attempted murder. This conclusion is based on the presumption that the issue was entirely one of credibility: if the jury believed the defendant, it believed he shot Cummings in self-defense. If the jury believed Cummings and Daly, it necessarily rejected the affirmative defense.
• 1, 2 This contention is without merit because the issue is not credibility but whether there was sufficient evidence to prove the element of specific intent to kill, which is required for a conviction of attempted murder. In this case the same set of facts was the basis of two separate and distinct offenses which required different elements of proof. For aggravated battery it was necessary to prove that defendant intentionally or knowingly caused great bodily harm or in the commission of a battery used a deadly weapon. (Ill. Rev. Stat., Ch. 38, sec. 12-4.) To establish the defendant's guilt of the crime of attempted murder it was necessary to prove the additional element of specific intent to commit murder. (Ill. Rev. Stat., Ch. 38, sec. 8-4.) The testimony of the defendant was that he did not try to kill Cummings: "No, I had no thought to kill him." Arlester Brown testified: "If we wanted to get them we could have easily blowed their brains out. We were sitting at the crossing talking. All we wanted to do is scare them off." The jury evidently found there was not sufficient evidence of an intent to kill on the part of the defendant.
• 3 Furthermore, logical consistency in verdicts is not necessary so long as the verdicts are not legally inconsistent. People v. Joyner (1972), 50 Ill.2d 302; People v. Hairston (1970), 46 Ill.2d 348.
• 4-6 The defendant's next contention is that a defendant's right not to be placed in double jeopardy precludes a finding of guilty on the aggravated battery charge when he was found not guilty of attempted murder. However, we believe People v. Hairston, 46 Ill.2d 348, is dispositive of the issue despite the defendant's attempts to distinguish it. In that case the court stated:
"`For a double jeopardy claim to be viable, it must be shown that the two offenses charged are in law and in fact the same offense.' (Hattaway v. United States (5th cir. 1968), 399 F.2d 431, 432.) `It is the identity of the offense, and not of the act, which is referred to in the constitutional guaranty against double jeopardy; * * *.' (People v. Ciucci, 8 Ill.2d 619, 629, aff'd 356 U.S. 571, 2 L.Ed.2d 983, 78 S.Ct. 839.) Two or more distinct offenses may emanate from the same transaction or act, and we have consistently held that the rule that a person cannot be put twice in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act. [Cases cited.]"
In the instant case the crimes of aggravated battery and attempted murder are separate and ...