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People v. Bowie

OPINION FILED JANUARY 22, 1976.

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

v.

KENNETH BOWIE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES DURHAM, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 4, 1976.

Defendant, Kenneth Bowie, was found guilty by the circuit court of Cook County sitting without a jury of the offenses of battery, resisting a police officer, and criminal trespass to land. Defendant was sentenced to one year concurrent sentences on each charge. On appeal, defendant alleges that the State failed to prove him guilty of battery beyond a reasonable doubt, and that a police officer, in the context of this case, cannot be considered to be an owner or occupant within the meaning of the criminal trespass to land statute. Ill. Rev. Stat. 1973, ch. 38, par. 21-3.

We reverse and remand.

The record reveals the following pertinent facts. At 8:30 on the morning of May 11, 1973, defendant attempted to enter Harlan High School, but was asked to leave the school building by a uniformed Chicago police officer who said he was assigned to the school. The policeman escorted defendant to the door and told defendant that he was trespassing and would be arrested if he returned. Between thirty and forty-five minutes later, the policeman saw defendant in the school building and placed defendant under arrest. Our reading of the record discloses conflicting accounts of what next transpired.

The police officer testified that as they were walking toward the school office, defendant began to use obscene language and then took a swing at the uniformed policeman. A struggle ensued. The defendant's testimony was that as they were walking down the hallway, defendant commented that the officer's grip on his arm was too tight. The officer said, "Don't tell me what to do," and then started beating defendant over the head with his policeman's club. Defendant's head was bleeding as a result of these blows. During the ensuing struggle, defendant tried to wrest away the police officer's club to avoid further bodily injury. Defendant further testified that he did not resist the policeman until he was beaten over the head with the club. The third witness at trial was a friend of defendant who testified that he saw the policeman take defendant by the arm, say "You can't tell me what to do," draw his stick, and beat the defendant over the head with the stick. A struggle ensued during which defendant did not take any swings at the officer; defendant tried only to get away. At the conclusion of the bench trial, the court found defendant guilty of battery, criminal trespass to land, and resisting a police officer. (Ill. Rev. Stat. 1973, ch. 38, pars. 12-3, 21-3 and 31-1.) The judge then sentenced defendant to one-year concurrent sentences on each charge.

• 1 Defendant's first allegation on appeal is that he was not proven guilty of battery beyond a reasonable doubt. The evidence presented at trial as to the battery was contradictory; the police officer and defendant each claimed the other began the physical altercation. The determination of credibility of witnesses is for the trial court in the absence of a jury, and the trial court's judgment will not be overturned on review unless a defendant's guilt was not proven beyond a reasonable doubt, an unjust decision was reached, or an error of prejudicial dimension occurred in the trial. People v. Mallett (1971), 2 Ill. App.3d 55, 58.

• 2 Our reading of the record discloses that defendant did not have a fair trial because the trial judge did not fairly consider the question of credibility. This will become clear as we examine defense counsel's closing argument:

"DEFENSE COUNSEL: And along with that, in regard to the battery charge, we certainly have a conflict of the evidence as to who struck who first. It would seem to me that we have two witnesses, of course there is a question of credibility, both of them saying that they observed the defendant and his witness, they observed the officer strike the defendant twice in the head. There was blood resulting and an injury inflicted on the defendant.

THE COURT: Who said so?

DEFENSE COUNSEL: The defendant.

THE COURT: I didn't hear that. I heard nothing about that the defendant stating anything about that he was bleeding, strike that out." (Emphasis added.)

Yet, the record contains the defendant's testimony on direct examination:

"* * * he grabbed me and told me that I was going to be placed under arrest and he told me that he warned me about being there before and we were walking down the hallway and he had a tight grip on my arm and I told him that it wasn't necessary, that I wasn't going anywhere and he said, I don't tell him what to do, and he hit me up beside ...


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