APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
McDONNELL, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
James Alexander, Jr. (Alexander), the appellant herein, was charged in three separate complaints with the offenses of assault as to fireman Boyce Coleman (Coleman) and assault and aggravated assault as to fireman Elijah Strickland (Strickland) under sections 12-1(a) and 12-2(a)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 12-1(a) and 12-2(a)(7)):
(a) A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery.
"§ 12-2. Aggravated Assault
(a) A person commits an aggravated assault, when, in committing an assault, he:
(7) Knows the individual assaulted to be a fireman engaged in the execution of any of his official duties."
After a bench trial defendant was found guilty on each charge and was sentenced to 360 days in the House of Correction on each charge to run concurrently.
On appeal defendant contends:
(1) That the State failed to prove the offense of assault as to Coleman beyond a reasonable doubt,
(2) That the State failed to prove the offense of aggravated assault as to Strickland beyond a reasonable doubt, and
(3) That the trial court erred in entering judgment on the charge of assault as to Strickland where a judgment had been entered on the greater offense of aggravated assault and both charges arose out of the same transaction.
It was the testimony of Coleman and Strickland that they were in uniform answering a call for an ambulance at 7101 S. Parnell at approximately 3 a.m., on June 15, 1975. When they arrived at that address, they found it to be a fire station. The fireman on watch told them that the injured person was in a tavern across the street called Gwen's Den. Coleman crossed the street to assist the injured woman. Strickland remained with the ambulance. While Coleman and Strickland were helping the injured woman into the rear compartment of the ambulance, they became engaged in an argument with two of the co-defendants, Michael Jones and John Jones, who are not the subjects of this appeal. Although the record is not at all clear, it would appear that the argument initially concerned the length of time it had taken the ambulance to arrive and whether the injured woman would be taken to St. Bernard's or Cook County Hospital. During the course of the argument the defendants used obscene, abusive and threatening language. The argument rapidly escalated into open hostility. The appellant herein, defendant James Alexander, Jr., arrived sometime after the onset of the confrontation.
The entire series of events lasted long enough for Coleman to have requested police assistance four times. Coleman first noticed defendant Alexander after he had returned from going to the firehouse for the second time to tell the fireman on watch to call the police. He then saw Alexander standing behind his partner, Strickland, with a tire iron raised over Strickland's head. Both Strickland and Coleman testified that Alexander stated that he intended to "bust his [Strickland's] brains out." Coleman, at this point, pushed Strickland aside and according to Coleman's testimony Alexander "backed up and presented hisself [sic] again." Coleman stated that no blows by the defendant ever made contact with him and that Alexander did not threaten him with the tire iron but did threaten his partner, Strickland, with it. Strickland testified that he did not see Alexander attempt to strike him at first but, after his partner pushed him away from Alexander, he saw Alexander with the tire iron up in the air and was ...