APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
E. DOLEZAL, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Convicted by a jury of the crime of aggravated battery *fn1, defendant Charles R. Thornhill was sentenced to a prison term of 2 to 5 years. He now appeals from that conviction, presenting the following issues for review: (1) whether the State unconstitutionally employed peremptory challenges to exclude blacks from the jury; (2) whether the remarks and conduct of the trial judge invaded the province of the jury and deprived defendant of a fair trial; (3) whether the evidence presented was sufficient to prove defendant guilty beyond a reasonable doubt of the offense charged; and (4) whether the trial court abused its discretion when it denied defendant's application for probation.
At approximately 8 a.m., on June 29, 1969, Officer James McEnroe of the Chicago Police Department stopped defendant for making a "U-turn" at the intersection of 101st and Halsted Streets in Chicago. The officer testified and defendant admitted that, while the officer sat in his squad car writing a citation for the "U-turn," defendant reached into the open window and grabbed his driver's license from the officer.
The testimony offered by the witnesses for the prosecution and the defense concerning the events which followed are in direct conflict.
Officer McEnroe testified that defendant not only grabbed his driver's license but also took the officer's ticket book. The officer then exited from his car, caught defendant by the arm, and warned defendant he would be in more trouble if he did not return the book. Defendant nonetheless pulled away from the officer's grip. The officer took hold of defendant once again. Defendant then turned, grabbed the officer and began pushing him. The officer tripped, fell on his back, got up and went to his squad car to radio for assistance. When Officer McEnroe returned to defendant's car, he opened the car door whereupon defendant got out from the car holding a baseball bat in his hand which he began to swing at the officer. Although the witness tried to protect himself, defendant hit him in the chest with the bat. The officer was able to force defendant over to the squad car where he told defendant to place his hands on the car. He was about to handcuff him when defendant turned and struck the officer in the mouth. The two men began pushing one another, fell to the ground and, at this point, the officer stated, defendant began to choke him. Officer McEnroe next remembered leaning against the squad car and watching the other officers, who had arrived in the interim, struggle with the defendant.
Also testifying on behalf of the State were two additional Chicago police officers. The first was Frank Malis who testified that about 1 minute after receiving a radio call at 10 minutes to 8 in the morning, he arrived at the scene and observed defendant with an arm around McEnroe's neck as he struck the officer in the head with the other fist; that Malis then handcuffed the defendant; that he saw no one strike the defendant; that McEnroe looked pale and dazed; and that he observed no blood either on the defendant or on the street.
The second officer, William Marcy, Jr., testified that when he arrived at the scene he saw four to eight policemen holding the defendant on the ground; that afterwards the defendant was handcuffed and placed in a squadrol; that McEnroe looked pale and his uniform looked dirty; that the defendant had blood on his face; that there was blood on the ground; and that he saw no one strike the defendant.
The defendant testified that he got out of his car to speak to Officer McEnroe; that he asked for a "pass" since he was unfamiliar with the area; that McEnroe stated that "black people are always asking for a break or a pass," at which point he reached into the squad car and grabbed his license; and that, as he walked from the squad car to his own auto, McEnroe grabbed him by the shoulder, flung him around against the car, knocked him to the ground and began to hit him. Defendant then covered his face, tried to turn over and next remembered "a lot of feet and hands dragging and kicking on me," and then being turned over facedown, handcuffed, put into a squadrol and taken to the station. Defendant denied the alleged assault of McEnroe and further stated that, as a result of the incident, he sustained bruises on his face, hands, chest, stomach and legs, as well as skin abrasions on his eye and forehead.
Of the seven remaining defense witnesses, two claimed to have observed the incident from its outset. Neither witness had known the defendant previously, and each witness's account of the event coincided in its significant parts with that of defendant, i.e., it was the officer who had initiated the physical violence, and that defendant never struck any of the policemen but was hit repeatedly by them. The testimony of defendant's girl friend and her daughter who were passengers in defendant's auto also corroborated his version of the incident.
Three of the defendant's witnesses had not seen the incident from the beginning but testified as to various phases of the events, e.g., six police officers striking a man on the ground, one officer kicking the defendant, blood on the defendant and street, and the defendant's torn clothing. Additionally, two of the witnesses testified that one of the officers took a baseball bat from the back seat of the defendant's car and placed it in the squad car. The two passengers in the defendant's car corroborated certain portions of the defendant's testimony.
Defendant, a black person, contends that blacks were systematically excluded from the petit jury by the State's use of its peremptory challenges, and that such conduct constituted a denial of equal protection of the laws in violation of the fourteenth amendment of the United States Constitution.
The police officer initially involved in defendant's arrest and the principal State witnesses were white. In the selection of the petit jury, the State exercised five peremptory challenges, of whom four were black. During the jury selection the defendant consistently objected to the State's use of each peremptory challenge. Defendant claims "the State exercised its peremptory challenges to exclude every black prospective juror from the jury panel, apparently because of race." On the other hand, the record does indicate that of two alternative jurors selected, one was black. The record further indicates that of the four blacks peremptorily challenged, their occupations were: truck driver, school teacher, factory worker, and a guard for the General Service Administration.
Section 115-4(e) of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 115-4(e)) provides that in cases of the type involved here, each party is allowed ten peremptory challenges. A peremptory challenge is a right to challenge a certain number of jurors without showing any cause or reason, or inquiry into motives. As any trial attorney knows, a peremptory challenge is often exercised on a mere "hunch," and sometimes on the so-called sophisticated consideration of race, religion, nationality, employment, residence, and many other real or imaginary reasons.
The defendant states that "the systematic exclusion of blacks from a jury is a denial of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution." (Strauder v. West Virginia (1879), 100 U.S. 303, 25 L.Ed. 664; Eubanks v. Louisiana (1958), 356 U.S. 584, 2 L.Ed.2d 991, 78 S.Ct. 970.) But neither Strauder or Eubanks touches the precise question raised here.
The supreme court considered this issue in People v. Harris (1959), 17 Ill.2d 446, 451, 161 N.E.2d 809, 811-12, and there concluded that:
"The fact that the State's exercise of peremptory challenges resulted in excluding [blacks] from the petit jury did not deprive defendant of any constitutional right. [Citation.] The right of peremptory challenge is a substantial one which should not be abridged or denied. It may, by its very nature, be exercised or not exercised, according to the judgment, will or caprice of the party entitled thereto, and he is not required to assign any reason therefor. [Citation.]"
Reasoning in a similar fashion, the United States Supreme Court concluded in Swain v. Alabama (1965), 380 U.S. 202, 221, 13 L.Ed.2d 759, 773, 85 S.Ct. 824, 836, that the equal protection clause does not entitle a black American to a jury containing members of his own race, and that the Constitution of the United States does not require an examination of the prosecutor's reasons for the exercise of his challenge in any given case.
• 1 In light of these decisions, defendant nonetheless attempts to distinguish the instant case by suggesting that the phrase in the Harris opinion, "according to the judgment, will or caprice of the party entitled" does not mean that "the State, as it did in this case, may hide behind the cover of peremptory challenges in order to effect the deprivation of a constitutional right." Defendant, in his brief or in oral argument, cited no authority to support this contention. We have found no authority to extinguish the longstanding principle that the right to a peremptory challenge may be exercised without explanation or without being subject to control by the ...