APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. PRESIDING JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant, Ernest Lee Bratcher, appeals from a judgment entered following a jury trial for the offense of aggravated battery in violation of section 12-4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(6)) and from a sentence imposed of 2 to 10 years' imprisonment. Defendant was charged with two counts of aggravated battery. He was convicted of striking Officer Robert Moore, acquitted of the charge involving Officer Resch. Defendant raises the following issues for resolution by this court: (1) Whether the trial court erred in refusing defendant's self-defense instruction, and (2) Whether the trial court erred by imposing the wrong sentence for the offense charged.
The following recitation of testimony related to the evidence as presented on the self-defense issue.
Robert Moore, a Decatur police officer, testified as follows. On July 4, 1973, he and Officer Resch observed a car out of control. The car was stopped. Thelma Moss was driving. The officer suspected that she was under the influence and requested Ms. Moss to perform several tests. The officer, however, decided to issue but one citation for improper lane usage and returned to the squad car to write up the citation. Defendant approached the scene and talked to Ms. Moss. Defendant then approached the squad car and initiated a conversation concerning the citation. Defendant began swearing, insisting that the officers would have to beat him up if they issued a citation. Officer Moore noticed the smell of alcohol on defendant's breath. Both officers stepped out of the car. Defendant retreated but also raised his hands to a squaring-off position. Moore drew his nightstick but did not raise it. The officer then advised defendant three different times to leave the area. Each time defendant refused, repeating his original statements. The officer informed him he was under arrest for obstructing a police officer. Defendant was requested to go into a frisk position against the squad car. Defendant did so, at least to the point of putting his hands on the car. Moore started to return his nightstick to his belt. He looked up, saw defendant's fist coming, dodged but was hit above the ear and knocked back. At that point Officer Resch hit defendant over the head with his nightstick, and defendant started swinging wildly. A fracas and chase ensued, defendant eventually being subdued. Officer Resch substantially corroborates Moore's testimony.
Officer Donald Brooks testified that he interviewed defendant the morning after the incident. Mr. Bratcher admitted hitting one of the officers but told Brooks that he felt that they were going to whip him so that he took a swing first.
Defendant testified in his own behalf. He admitted being intoxicated and admitted that he was repeatedly asked to leave but refused to do so. Defendant's version was that both officers had their nightsticks raised up as they got out of the squad car. He stated that he was never told he was under arrest but was shoved against the car, told to leave, decided to do so and had taken a step away when he was shoved hard from behind. At this point he turned around and hit Officer Moore. Defendant further stated that he was not in fear but that the second shove surprised him and made him mad so that, in automatic reaction he turned around and hit Moore as hard as he could. He said he then realized what he had done, decided to quit and dropped his hands. According to defendant Officer Moore then told defendant that he was going to be taught a lesson and the two officers started beating on him with their nightsticks.
Defendant first contends that the court improperly refused to give an instruction (IPI-24.06) tendered by defendant. The instruction is that on the use of force in defense of a person.
• 1 It is proper to give the self-defense instruction only if the issue of self-defense is raised by the evidence. (People v. Allen, 50 Ill.2d 280, 278 N.E.2d 762.) The trial judge refused to give this instruction on the grounds that the evidence did not raise the issue.
IPI-24.06, defendant's instruction, reads:
"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force."
This is taken directly from the statute which defines the affirmative defense of self-defense. (Ill. Rev. Stat. 1973, ch. 38, § 7-1.) The Committee Comments to that section indicate that a person must actually believe that a danger exists and that force is necessary to avert the danger. Ill. Ann. Stat. ch. 38, § 7-1, Committee Comments (Smith-Hurd 1972).
• 2 Defendant's own testimony negates the existence of a self-defense issue. Defendant testified that he struck out in anger and surprise. He said his action was an automatic response to the touch of the officer. Defendant specifically testified that he was not in fear at the time he hit the officer. A self-defense issue arises only if the person acted to protect himself from the imminent use of unlawful force by another. Defendant testified to his own mental state and that testimony shows that defendant did not act to aver the use of unlawful force by another. Therefore the court did not err in refusing the instruction.
Defendant also contends that he was improperly sentenced. Defendant was convicted of aggravated battery under section 12-4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 12-4) which states that a person who in committing a battery upon a peace officer engaged in his official duties commits an aggravated battery. Prior to the passage of the Unified Code of Corrections sections (a)(b) and (c) of the aggravated battery statute each contained their own penalty provisions. The penalty for a violation of section 12-4(a) was 1 to 10 years' imprisonment (Ill. Rev. Stat. 1971, ch. 38, § 12-4(a)). The penalty for a violation of any of the subparagraphs of section 12-4(b) was contained in subsection (9) of that section and provided for imprisonment "in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years." Section 12-4(c) also contained its own penalty provisions.
The Unified Code of Corrections, however, became effective on January 1, 1973, and added a new section (d) to the statute which provided that aggravated battery is a Class 3 felony. A Class 3 felony carries a 1- to 10-year term of imprisonment (Ill. Rev. Stat. 1973, ch. 38, § 1005-8-1(b)(4)). The individual penalties under section (a) and (c) were removed at that time. The penalty for section (b) contained in subsection (b)(9) was, however, not removed. Defendant therefore contends that it was improper for the trial court to have imposed a sentence which ...