APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant was charged with four counts of aggravated assault and two counts of unlawful use of weapons. After a bench trial he was found guilty and sentenced for two terms of three to five years on each of two counts for aggravated assault and of three to six years on one count of unlawful use of weapons, with all sentences to run concurrently.
On appeal defendant contends:
1. that he was not proven guilty of the offense of aggravated assault of Robert Vanna (Count II) beyond a reasonable doubt,
2. the concurrent sentences on the two offenses of aggravated assault were improper because they arose from the same conduct, and
3. the sentence for a term of three to six years on Count V for the offense of unlawful use of weapons was improper.
It was the testimony of the two police officers that they were in plain-clothes in an unmarked automobile when at about 11:20 P.M. they stopped to question three men, one of whom was defendant. As officer Filipiak exited the automobile defendant started to walk away and Filipiak told him, "Hold it, police officers," at which time defendant began to run. Filipiak pursued him on foot and was immediately joined by officer Vanna. As defendant was running through a lighted viaduct, Filipiak was about 70 to 75 feet behind him with Vanna about 10 to 15 feet behind Filipiak, he pulled out a black object from his waistband which Vanna testified appeared to be a gun. As he reached the end of the viaduct defendant turned around and fired a shot at the police officers. Only one shot was fired. Filipiak testified that he saw the flash from the gun. Vanna testified that he heard the shot. Filipiak ducked behind a pillar after the shot was fired and Vanna then returned to their automobile to get his radio. Both officers testified that during the chase and before the shot was fired, Filipiak continued to yell to defendant, "Hold it, police officers." After Filipiak came out from behind the pillar he continued his chase but lost sight of defendant. Seconds after the shot was fired police officers Beilke and Crotty met Filipiak who gave the two officers a description of defendant and about fifteen minutes later Beilke and Crotty saw a man of similar description on the second floor landing of a building in the vicinity of the occurrence. They eventually apprehended defendant and found a .22-caliber revolver on the landing where he had been standing. The officers had previously observed defendant remove a black object from his waistband and drop it to the floor of the landing. One empty cartridge was found and another bullet had misfired.
Defendant testified that he was standing at a street intersection talking to two other men when a car pulled up and two men jumped out with guns drawn and he ran. He testified that it was almost 12:00 A.M. and one of the conditions of his parole was that he be in at that time and for this reason he ran. He denied having any weapon or shooting at the officers.
Defendant's first contention relates to the elements of the charge of aggravated assault *fn1 (Ill. Rev. Stat. 1969, ch. 38, pars. 12-1(a) and 12-2(a)(1)). He argues that although it may have been reasonable to assume Filipiak was placed in apprehension of receiving bodily harm, he contends that the same conclusion is not warranted in the case of Vanna. He points out that Vanna did not testify that defendant shot at him or that he was placed in apprehension of bodily harm. He suggests that the essence of Vanna's testimony is that he saw defendant, from approximately 90 feet away, reach into his belt and take out an object, which the officer could not say was a gun, and then he heard a shot and saw his partner jump behind a pillar and he contends that this testimony falls far short of proving him guilty of the aggravated assault of Vanna beyond a reasonable doubt.
We note that Vanna also testified that he saw defendant with what appeared to be a gun and that the shot came from defendant at a time when Vanna was 10 to 15 feet behind Filipiak and both were pursuing defendant through a well lighted viaduct.
• 1, 2 It is well established that in a bench trial the credibility of witnesses and the weight to be given their testimony is within the province of the trial judge and any decision as to these matters will not be set aside by a reviewing court unless the proof is so unsatisfactory as to create a reasonable doubt as to defendant's guilt. People v. Pagan, 52 Ill.2d 525, 288 N.E.2d 102.
The trial judge found that both officers were placed in reasonable apprehension of receiving a battery when the gun was fired in their direction. We believe that it was reasonable for him to have so found and we think it was reasonable for the officers to believe that defendant, having already fired a shot, would shoot again to effect his escape and, as the evidence of a misfired bullet indicated, he may, in fact, have tried to do so. The trial judge, under those circumstances, could ...