APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN NIELSEN, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 21, 1974.
A jury found the defendant guilty of aggravated battery in violation of section 12-4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12-4(b)(6)), and he was sentenced to 1 year at the Illinois State Farm at Vandalia.
The defendant contends on appeal that (1) certain of the court's and State's Attorney's comments were prejudicial to him; (2) he was not proven guilty beyond a reasonable doubt; (3) irrelevant and immaterial evidence was admitted; (4) the criminal complaint was insufficient; (5) the statute under which he was convicted is unconstitutionally vague and uncertain; (6) certain instructions, submitted by the State and given by the court over defendant's objections, were prejudicial; and (7) the sentence was excessive.
Defendant and his wife quarreled on November 9, 1971, and the wife went to their daughter's home. Defendant followed, was denied entry into the house, broke in the front door, ripped the telephone out and damaged the back door. The police were called and, upon their arrival, defendant was observed with his hands in his pockets standing in the front yard of the home. He stated that he had a gun, was going to shoot them and was not going to be arrested. During efforts to arrest the defendant, one of the four officers was hit in the chest and kicked in the leg; defendant sustained three broken ribs and a bruised eye. He was finally subdued, handcuffed and taken away in a patrol car. No gun was found.
Defendant contends that he was prejudiced by remarks made during trial in that (a) the trial court was critical of defense counsel's understanding of the law; (b) the court was impatient with the manner in which the defense was conducted; (c) the defense counsel was reprimanded by the court, and (d) the State's Attorney's indications of impatience with the defense counsel compounded the alleged prejudiciality of the court's remarks. Defendant cites 32 separate remarks by the court and 6 by the State's Attorney, all made in the presence of the jury. It is the State's position that the statements were either provoked by defense counsel or were not prejudicial and that the mere possibility of prejudice was cured by the cautionary instruction.
• 1, 2 Other than the officer's testimony, there is no direct evidence of defendant striking the officer; defendant denied doing so. Thus, the case turns on whom the jury chose to believe. Should the record indicate that the court showed obvious irritability toward the defense and that the State's Attorney failed to accord opposing counsel due courtesy, reversal would be required. (People v. Evenow, 355 Ill. 451, 455-56 (1934).) Such actions, in the presence of the jury, may prove a source of prejudice which would deny defendant a fair and impartial trial. (People v. Lewerenz, 24 Ill.2d 295, 300-01 (1962).) In this consideration, however, we are mindful that it would be a dangerous precedent to permit counsel to claim an advantage from statements which the trial court made in response to the invitation or provocation of counsel. People v. Smith, 63 Ill. App.2d 369, 376-77 (1965); People v. Shockey, 66 Ill. App.2d 245, 249 (1966); People v. Smith, 66 Ill. App.2d 257, 262-63 (1966).
• 3 An examination of the record reveals that the remarks by the trial court and the State's Attorney were never directed toward the defendant or the evidence presented. We find that of the 38 allegedly prejudicial comments directed at defense counsel, 33 were not prejudicial and the remaining 5, which in other circumstances may be construed as error, were here provoked by defense counsel. Further, in this case the cautionary instruction (I.P.I.-Criminal 1.01) counteracted any possibility of prejudice posed by the comments.
• 4-8 It is maintained that because the State failed to meet its burden of proof as to the element of bodily harm, defendant was not proven guilty beyond a reasonable doubt. There was direct testimony from the complaining officer that he was struck and kicked by the defendant. Whether this constituted bodily harm is a question for the jury. (People v. Newton, 7 Ill. App.3d 445, 447 (1972).) Even when refuted by the defendant, the testimony of one witness (when that testimony is positive and the witness credible) is sufficient, without corroboration or medical reports, to support a finding that bodily harm did occur. (People v. Holmes, 5 Ill. App.3d 708, 712 (1972).) Here, the witness' testimony was positive and where the issue turns on the credibility of that witness, a reviewing court will not upset a jury's finding unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory that it would raise a reasonable doubt as to the guilt of the accused. (People v. Spears, 106 Ill. App.2d 430, 434 (1969); People v. Nuccio, 54 Ill.2d 39, 51 (1973).) The evidence being sufficient, we find no error with the jury's determination of guilt.
• 9, 10 Defendant alleges that he was prejudiced by irrelevant and immaterial evidence admitted over his objection, such evidence being: (a) an officer's testimony during the case-in-chief regarding his observations of the condition of the home after defendant's arrest; (b) the defendant's testimony on cross-examination concerning events prior to the arrival of the police; (c) rebuttal testimony of defendant's daughter contravening defendant's denial of having broken into her house, and the daughter's criminal complaint introduced into evidence.
"The test of the admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put in evidence which tend to make the proposition at issue more or less probable." People v. Peter, 55 Ill.2d 443, 459 (1973).
The officer's testimony supported a necessary element of the offense, i.e., that the officers were acting in their official capacity. (People v. Bailey, 10 Ill. App.3d 191, 192 (1973).) The testimony concerning the condition of the house was also admissible in that it presented a continuous narrative of the facts at and around the time of the crime. People v. Johnson, 34 Ill.2d 202, 206 (1966); People v. Sanders, 56 Ill.2d 241, 250 (1974); City of Chicago v. Mayer, 56 Ill.2d 366, 369-70 (1974).
• 11-13 On direct examination, the defendant testified that he was only standing in the yard when accosted by the police. Based on this testimony, the State questioned him as to the circumstances which led to his being in the yard. The questions on cross-examination were expositive of defendant's direct testimony. As a general rule, the latitude allowed in cross-examination is left to the discretion of the trial court and reversal on this ground would only be occasioned by a clear abuse of discretion. (People v. Gallo, 54 Ill.2d 343, 356 (1973).) It was therefore not error to allow the inquiry.
• 14 The rebuttal testimony of the defendant's daughter and the criminal complaint supporting her testimony were properly admitted since they had probative value for the purpose of refuting defendant's testimony that he was merely standing in the yard prior to arrival of the police. (People v. Daugherty, 43 ...