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People v. Johnson

NOVEMBER 25, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

SYLVESTER JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Alexander County; the Hon. ROBERT CHASE, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Sylvester Johnson, was charged by indictments with an aggravated battery against Melvin Smith and an aggravated battery and attempt (murder) against Randolph Tucker. He was tried by jury and found not guilty of the attempt (murder) and guilty of both aggravated batteries. He was sentenced to two concurrent sentences of one to three years. From his convictions and sentences he brings this appeal.

The evidence at the trial of defendant showed the following. On September 28, 1972, the defendant, while at a carwash in Cairo, Illinois, was approached by Melvin Smith and Albert Purchase. Smith and Purchase told defendant that he owed Smith some money and that he would have to pay it. When the defendant disagreed, either Smith or Purchase pulled a gun from a paper bag and threatened to kill or harm the defendant if he failed to produce the money. Apparently defendant was unable or refused to produce the money, so Smith told defendant that he would be coming to defendant's house to see about the money. Smith and Purchase then left the carwash.

The next evening the defendant was sitting in the living room of his home when someone knocked on the door. Defendant's brother told the person to come in. Defendant then looked up and saw Melvin Smith standing in the doorway with his hand under his jacket. According to the defendant, Smith asked for his money. Defendant then asked Smith to go outside, and as Smith went outside, defendant unzipped the case of a shotgun which was positioned nearby. Smith heard the unzipping and began to run from the porch. Defendant chased him and shot him at least one time, causing a neck wound. Smith tried to get into the car where Randolph Tucker sat waiting. However, by that time the defendant had reached the car and Tucker decided to try to escape on foot. As Tucker was running the defendant, thinking that Tucker was Albert Purchase, shot him in the buttocks. Defendant's mother then came out and stopped the shooting.

Defendant has raised several issues on this appeal. He first contends that the record fails to show that the indictments charging him with the instant offenses were presented in open court. Defendant points specifically to the fact that the indictments did not have the signature of the clerk of the court or any other indication on their face that they had been presented in open court.

• 1 Each of the indictments for aggravated battery, as well as the indictment for attempt murder, after stating the county, the date, the name of the defendant, and the particular offense charged, contain the handwritten notation "a true bill," the signature of the grand jury foreman, the signature of the State's Attorney, and the name of the witnesses who appeared. Although on each indictment there is a clause attesting that the indictment had been presented in open court and a line following that clause for the signature of the court clerk, such signature does not appear on any of the indictments. However, with respect to each offense there is a record sheet entry dated October 13, 1972, which reads, "Indictment filed," followed by a statement regarding the bail set.

Section 112-4(c) of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, § 112-4(c)) provides:

"(c) If 12 grand jurors concur that the evidence before them constitutes probable cause that a person has committed an offense the State's Attorney shall prepare a Bill of Indictment charging that person with such offense. The foreman shall sign each Bill of Indictment which shall be returned in open court."

Several Illinois cases have considered the question of what the record must contain in order for the court to hold the requirement that the indictment be returned in open court to have been met. (For example, see Gardner v. People, 20 Ill. 431; Morton v. People, 47 Ill. 468; Yundt v. People, 65 Ill. 372; People v. Dennis, 246 Ill. 559, 92 N.E. 964; and other cases cited in Dennis at 246 Ill. 559, 561.) Of these cases, Morton presents the factual situation most like that of the instant case.

In Morton the record stated that on March 18, 1868, "the following indictment was filed," after which the indictment was set out in the record. The indictment was subscribed by the State's Attorney and on its back appeared the notation "[a] true bill" followed by the signature of the grand jury foreman and the names of the three witnesses for the prosecution. The Illinois Supreme Court held this sufficient to show the indictment had been returned in open court. The court stated:

"Some minor points have been made by plaintiff in error, which we will notice.

The first in this series is, that it does not appear the indictment was returned into open court.

We think this sufficiently appears from the entry on the record by the clerk, that the following indictment was filed on the 18th day of March, 1868, it being of the March term, and copying the indictment endorsed a true bill, and signed by the foreman of the grand jury, with the names of the witnesses endorsed thereon." 47 Ill. 468, 476.)

The record in the instant case, as did the record in Morton, sufficiently indicates that the indictments in question were returned in open court as required by statute.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt because the "evidence did not prove that the defendant's actions in self-defense were unjustifiable." This contention is without merit. The cornerstone of this contention is the underlying assumption that defendant's actions were, in fact, in self-defense. As the assumption falls, so does the remainder of the contention.

Whether the acts of a defendant can be justified on a theory of self-defense is always a question for the trier of fact. (People v. Benedik, 56 Ill.2d 306, 307 N.E.2d 382; People v. Muldrow, 30 Ill. App.3d 209, 332 N.E.2d 664.) The determination by the jury should not be disturbed unless the evidence is so unsatisfactory as to justify a reasonable doubt. People v. Benedik; People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840, cert. denied, 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658.

In the instant case the issue of self-defense was properly placed before the jury, and the jury was properly instructed on the law of self-defense as set out in I.P.I. Criminal 24.06. By finding the defendant guilty of the two counts of aggravated battery, the jury determined the self-defense issue adversely to the defendant.

The important question, therefore, is whether the evidence was so unsatisfactory as to justify a reasonable doubt so that the determination by the jury should be disturbed. The testimony of the defendant himself makes it clear that in neither the shooting of Melvin Smith nor the shooting of Randolph Tucker was defendant acting in self-defense. The following colloquies on direct and ...


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