APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The appellant, Henry Kriston, was indicted together with his brother, Charles Kriston, and Charles Fick by the grand jury of Lake County and charged with the offenses of attempt to commit murder and aggravated battery. The two Kristons were tried together before a jury and found guilty of aggravated battery with a directed verdict in their favor on the charges of attempt. Henry Kriston was sentenced to probation for 5 years with the first 8 months to be served at the State farm at Vandalia. On appeal, he contends that the evidence did not prove his guilt beyond a reasonable doubt and that the jury was prejudiced against him as a result of an improper display of a chain during his trial.
The evidence showed that the Kriston brothers were at the Universal Restaurant on the north side of Madison Street in Waukegan at approximately 12:00 A.M. on July 25, 1970. Also at, or in front of, the restaurant were Fick, his girlfriend, Pat Rooney, and Roger Spice, Larry Ebler and Roberta Fletcher.
Spice went into the restaurant and purchased a hamburger and returned with it to the sidewalk in front of the restaurant where the others were standing and talking. When Spice refused to give Fick a portion of his hamburger, Fick struck him in the face. Ebler then grabbed Fick and the two began to fight, falling on the ground, until Charles Kriston pulled Ebler off of Fick and Ebler ran down the street. The testimony of all the witnesses, except for insignificant details, is consistent up to this point but there is a conflict in what occurred thereafter.
Kenneth Clark, an assistant State's Attorney for Lake County, testified for the State that he was leaving the Burgundy Room Lounge with Wayne Flanigan, an assistant public defender, with their wives at approximately 12:30 A.M. The Lounge is located directly across the street from the Universal Restaurant on the south side of Madison. Clark observed a fight in progress across the street and saw a boy in a blue shirt (Ebler) attempting to get up. He saw another person with blond hair and a motorcycle jacket (identified as Charles Kriston) pull Ebler up and Ebler run to the east. Clark testified that he then saw Fick turn to a boy in a white shirt (Spice), who was standing on the sidewalk in the entrance to an alley adjoining the restaurant to the east. He saw Spice put his hand up and heard him say "I don't want to fight". Fick then punched Spice and, Clark testified, the two Kriston brothers grabbed Spice's arms and held him from either side while Fick struck him on the head with a chain. They then dragged Spice back into the alley where the Kriston brothers kicked him in the head and Fick hit him again with the chain. As Clark crossed the street, Fick and the Kristons came out of the alley and he had a good look at their faces. Clark went back into the alley to Spice who lay, unconscious, with his head under a water pipe.
Clark stated that there was little traffic on Madison street at the time; that there were street lights in front of the Burgundy Lounge and on the north side of Madison and that the area was well lighted and he was able to see into the alley with no difficulty. He testified that Fick and Charles Kriston wore motorcycle jackets with insignias and that Henry Kriston had on levis and motorcycle boots but no shirt or jacket.
Flanigan also recalled seeing Fick turn to Spice after Ebler had left and Spice raise his hands at the entrance of the alley and state that he didn't want to fight. He testified that he then saw Fick strike Spice with a chain and Spice "crumple" to the ground. Then, Flanigan recalled, the Kristons took Spice by either arm and dragged him back in the alley where they laid him down by the rainpipe and Fick and both Kristons hit and kicked him. He also saw Fick and the Kristons as they left the alley and said that Charles Kriston and Fick wore blue levi's, motorcycle jackets, cut off on the sleeves, with various insignias and signs on the jackets. The other Kriston, he recalled, had no shirt.
Martin Salminen, a third eye-witness to testify for the State, stated that he was walking down Madison when the fight broke out. He testified that he saw "a tall blond-haired fellow" (identified as Charles Kriston) pull Ebler off of Fick and that Fick and Charles ran after Ebler. They then returned to the alley and started to push Spice back into it and Spice threw up his hands and said he didn't want to fight. He also observed a "fellow" without a shirt but didn't see him push or strike Spice. Salminen saw Fick strike Spice with a chain and the tall blond-haired fellow kick him. He was unable to identify Henry Kriston as the individual without the shirt.
In the meantime, Mrs. Clark had telephoned the police who arrived on the scene shortly thereafter where all three defendants were arrested a short distance away.
Six witnesses testified for the defense. Charles Kriston testified that he pulled Ebler off of Fick and then went to the door of the restaurant where he stood with his brother. He saw Fick push Spice into the alley and strike him with a chain. He also testified that a Roy Miller stood next to Fick and went into the alley and kicked Spice while he was on the ground. Charles said he wore a cut-off levi jacket with engineer's boots that night.
Mary Radky and Judy Grubbs testified that they had gone to the restaurant with Roy Miller and were talking with the Kristons when the fight in the alley started. The two girls stated they then crossed the street but kept looking back and that neither of the Kristons left the front of the restaurant or went into the alley. Mary Radky said she later observed blood on Miller's boots and that he said he had "kicked a guy in the head." Judy Grubbs testified that Miller was wearing a "splashy"" shirt.
Bob Worthington testified that he was at the scene during the attack and that only he, Fick, Spice, and Roy Miller were in the alley when Spice was beaten. He said that Fick hit Spice with the chain and that Miller kicked him until Worthington pulled him away. He also testified that the Kristons did not go into the alley and that he heard them "hollering" from the street.
Henry Kriston testified that he and Charles stood near the door of the restaurant and saw Fick, Spice, Worthington and Miller go into the alley. He said it was dark in the alley and he could not see the fight too clearly.
Fick, called as an adverse witness, admitted that he struck Spice with a chain and that Miller kicked Spice in the alley. He did not see either of the Kristons in the alley or anyone but Miller kick Spice. He testified that he and Charles Kriston were the only persons present with motorcycle jackets and ...