APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. JANCZY, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
The defendant, Felipe Claudio, was found guilty at a bench trial of resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago and fined the sum of $45. He also was found guilty of the offense of battery. (Ill. Rev. Stat. 1971, ch. 38, par. 12-3.) The defendant's application for probation was allowed and he was released for one year to the chief probation officer on condition that the defendant serve the first thirty days in the House of Correction.
There were two records filed in the appellate court. Appellate Court No. 57283 pertains to the appeal from a judgment finding the defendant guilty of resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago. Appellate Court No. 57284 pertains to the appeal by the defendant from a judgment finding him guilty of the offense of battery in violation of section 12-3 of the Criminal Code of Illinois.
The evidence discloses that on December 31, 1971, the defendant was causing a disturbance in front of 1318 North Spaulding Avenue, Chicago, Illinois. Police Officer Joseph Terracina attempted to arrest the defendant. The defendant resisted and they started struggling and both fell to the ground. Police Officers Fred Mascarella and Carl Veller came to the assistance of Terracina. In attempting to place the defendant in their squad car, the defendant kicked both Mascarella and Veller.
The defendant contends (1) that because the State, rather than the City of Chicago, prosecuted the complaint for resisting arrest in violation of section 33 of chapter 11 of the Municipal Code of the City of Chicago, the defendant's conviction is a nullity; and (2) that the State's failure to prove the material allegation of bodily harm contained in the battery complaint is fatal to the conviction of the defendant.
The defendant argues that the Assistant State's Attorney, rather than the Corporation Counsel, conducted the hearing for the City of Chicago in Appellate Court No. 57283 and, therefore, the conviction for resisting arrest is a nullity. The State argues that it was not error for the Assistant State's Attorney to prosecute the City violation and, further, the appeal on the ordinance violation should be dismissed because the defendant failed to serve a notice of appeal on the City of Chicago. Similar arguments were presented in the case of People v. Wright, 75 Ill. App.2d 290, 221 N.E.2d 159, and the court held that "the Assistant State's Attorney was not acting for the State's Attorney when he undertook to prosecute the case for the City"; that "notice to the State's Attorney therefore cannot be considered notice to the City"; and that "failure of defendants to designate in their Notice of Appeal the City of Chicago as appellee and the failure to give notice to the city was therefore fatal to their appeals on that point."
• 1, 2 Rule 303(d) of the Illinois Supreme Court (Ill. Rev. Stat. 1971, ch. 110A, par. 303) provides that the party filing a notice of appeal shall serve a copy "upon every other party and upon any other person or officer entitled by law to notice of the appeal." The City of Chicago, the plaintiff in Appellate Court No. 57283, comes within the provisions of Rule 303(d) and defendant's failure to serve it with a copy of the notice of appeal requires that the appeal in Appellate Court No. 57283 be and it is dismissed.
The defendant relies upon the case of City of O'Fallon v. Reynolds, 2 Ill. App.3d 712, 276 N.E.2d 772. However, the Reynolds case held (2 Ill. App.3d 715-16) that a municipality cannot be a proper party plaintiff in the prosecution of a violation of a State statute. That is not the situation in the case at bar. Here the City of Chicago charged the defendant with a violation of a municipal ordinance and the complaint was filed in the name of the City of Chicago.
The defendant also argues that the State failed to prove that police officer Mascarella suffered bodily harm as a result of the kicking by the defendant and, therefore, the battery conviction should be reversed. Officer Fred Mascarella testified that when he and his partner, officer Veller, got to 1318 North Spaulding Avenue, Chicago, police officer Joseph Terracina and the defendant were fighting on the ground; that Mascarella and Veller got out of the car and started to put the defendant under arrest; that they handcuffed him, but he did not want to get into the car; that he was kicking and fighting; and that the defendant kicked officer Carl Veller. Officer Mascarella also testified as follows:
"Q. Did he fight with you or kick you also, officer?
Q. Did you sustain any injuries being kicked, officer?
Q. You saw also Officer Veller being kicked, ...