APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
A jury of the Circuit Court of Sangamon County returned verdicts finding defendant Robert Reynolds guilty of the offense of aggravated battery and not guilty of armed robbery. A mistrial was declared as to a charge of armed escape. He appeals from the conviction and the subsequently imposed sentence of 3 to 9 years' imprisonment. The aggravated battery was alleged to have occurred on November 23, 1973, and to have arisen out of the striking of one known by the defendant to be a peace officer engaged in the performance of his official duties all as prohibited by section 12-4(b)(6) of the Criminal Code, which provides that the offense is committed when:
"A person who, in committing a battery either:
Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional officer, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest." Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b) (6).
Defendant admits that he hit James L. Campbell, a Sangamon County deputy sheriff, during an altercation that occurred while Campell was arresting the defendant pursuant to a warrant. The evidence is undisputed that the deputy suffered resultant bodily injury. Defendant contends that his action was a justified use of force in self-defense and that the trial court committed reversible error in refusing his tendered instruction on this point which stated:
"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."
At the time of the occurrence, Campbell was in full uniform. He had been let into a house by a woman who told him that the defendant was not there. She had permitted the deputy to come in and look. Upon entering a room in the rear, Campbell noticed legs protruding from a closet and asked the person in the closet to come out. A man stepped out, and Campbell recognized him as the defendant Reynolds. The officer had the defendant put his hands on the wall and patted him for weapons, finding none. The evidence is disputed as to what happened during the next few minutes.
The deputy testified that he tried to put handcuffs on the defendant but defendant jerked his hands away. In the meantime Campbell had told defendant that he was arrested for conspiracy, and the defendant had continued to demand the nature of the charge. After the second try at handcuffing, the defendant lunged at Campbell's holster and shoved the officer into the corner in fighting for possession of the gun. The defendant hollered for the woman who had let the deputy in to "get my thing." In the scuffle, Campbell kneed defendant in the groin, and then defendant struck Campbell in the face twice. The woman gave defendant a revolver which he then pointed at Campbell and made Campbell also give defendant his, Campbell's, gun. With revolvers in each hand, the defendant then hit the officer on the left side of the head. The officer fell to the floor and defendant left. On cross-examination, Campbell admitted that he had given a statement 3 hours after the occurrence which stated that he was reaching for his gun when defendant lunged at the holster and that defendant was either trying to stop Campbell from drawing his gun or was trying to take the gun from Campbell.
The defendant testified that Campbell threw his handcuffs at defendant's hands, apparently to make them open and lock. The cuffs hit the defendant's hand and the defendant pulled his hands back, and the officer put them up again. The defendant continued to ask what the warrants were for. The officer again tried to handcuff the defendant but the defendant put his hands back up again. The officer became angry and "pushed" the defendant back in the corner. As the officer pushed him, the officer said, "* * * Damn it, do as I say * * *." And the defendant reached out and grabbed him, turned him around and "threw" him against the wall. The officer then kneed the defendant in the groin. Reynolds proceeded to strike Campbell twice with his right hand. The officer reached for his weapon and flipped the strap on the holster as if he were going to draw it. The defendant reached over and put his hand over the officer's hands to prevent him from drawing the weapon. During this time the two men were still scuffling, and the officer was still kneeing Reynolds. The defendant succeeded in pulling the weapon out of its holster.
The defendant further testified that when he got the gun out of the holster, he did not have another gun in his hand. He received the second gun after he had secured the officer's weapon. The woman brought him the gun because the defendant asked for it. At the time the defendant was struck he did not have the gun. While in possession of both guns, Campbell reached for the defendant's left arm. The defendant struck the officer with his fist but with the gun in his hand. The defendant stated that he did not intend to hit Campbell with the gun.
The instruction on justifiable use of force tendered by defendant is a statement taken from section 7-1 of the Criminal Code which states:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony." (Ill. Rev. Stat. 1973, ch. 38, par. 7-1.)
A defendant is entitled to an instruction on the theory of justifiable use of force if evidence is introduced from which the jury could find each of the necessary elements of the affirmative defense. (People v. Stombaugh, 52 Ill.2d 130, 284 N.E.2d 640). The defendant and Deputy Campbell were the only occurrence witnesses to testify. The testimony of Campbell was clearly insufficient to set forth any grounds to justify the force used by the defendant. The question to be decided is, therefore, whether the testimony of the defendant together with the reasonable inferences to be drawn from it was such that, if believed by the jury, it would be sufficient to justify the force used by the defendant. The importance of this determination is obvious because the evidence is undisputed as to all of the other elements of the case, namely that the defendant intentionally hit the officer knowing him to be a peace officer making an arrest and caused him to suffer bodily harm.
The law concerning the use of force by an officer making an arrest and by the person being arrested each against the other is complicated. It arises out of sections 7-1, 7-4, 7-5 and 7-7 ...