APPEAL from the Circuit Court of Cook County; the Hon. JOHN A.
OUSKA, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Wilbert Harris was found guilty of theft and battery by a jury and was sentenced on each charge to a term of "one year less one day," the sentences to run concurrently. The defendant appeals contending: (1) that he was not proven guilty of either charge beyond a reasonable doubt; (2) that the court erred in allowing the prosecution to impeach his testimony on collateral matters; and (3) that his battery conviction should be reversed because the battery was merely incidental to the theft and part of the same transaction.
At trial, Oscar Aguilera, the complaining witness, testified that on the evening of July 23, 1974, he was employed as a security guard at the Community Discount Store at 3161 North Clark Street in Chicago, Illinois. At approximately 7:45 p.m., Aguilera observed the defendant and another person enter the store and proceed to the ladies' department where they browsed for about ten minutes. Aguilera testified that he observed the defendant remove six pants suits, complete with hangers, from a display rack and proceed into the drug department. The defendant then removed a brown shopping bag with handles from underneath his shirt and pants and placed the pants suits into the bag. Several minutes later the defendant walked to the cashier's line and got in line behind the other customers. Aguilera then observed the defendant pass through the line holding the bag with the pants suits down low without paying for the pants suits and head for the front entrance.
Aguilera testified that he positioned himself outside on the sidewalk and when the defendant came through the door Aguilera identified himself as a security guard for the store and produced his identification card. The defendant then struck Aguilera on the chin, dropped the shopping bag, pushed Aguilera to the ground and fled. Aguilera and Ray Samlow, the acting store manager who appeared on the scene at that moment, pursued the defendant down Fletcher Street. The defendant ran into a dead-end alley, and Aguilera and Samlow cornered him and put handcuffs on him. Aguilera testified that he drew his gun for the first time while he was in the alley and he did not fire any shots during the entire incident.
Aguilera testified that he and Samlow then took the defendant back to the store and the three of them went into the security office. About five minutes later at approximately 8:40 p.m., Kennedy, another security guard, brought up a brown bag with the six pants suits in it. Aguilera inventoried the pants suits and placed his initials and the date on the tags which were attached to the pants suits. The suits had "IBM tags" which Aguilera explained had two parts, one of which would be removed by the cashier when the item is paid for. He observed that the tags on the pants suits still had both parts intact.
Shortly after the pants suits were brought up to the security office, the police arrived. Aguilera testified that when the police arrived they asked him if he had been firing his gun and he said no. The defendant, Aguilera stated, then told the police that Aguilera had shot at him which Aguilera denied. On cross-examination Aguilera stated that he did not hear any shots fired that evening. Aguilera stated that he later signed a complaint against the defendant. It was later noticed that the complaint listed only four pants suits having been stolen, Aguilera testified, so the complaint was changed to read six pants suits. The six pants suits which were entered into evidence contained two each of sizes 7 and 13 and one each of sizes 5 and 9.
Ray Samlow, the soft lines merchandise manager of the store and the store's acting manager on the night of the incident, was then called as a witness for the prosecution. He testified that he had also been observing the defendant and his companion while they were in the store. He had observed them proceed to the drug department and then to the checkout counter. He testified that he did not observe the defendant carrying a bag. However, during this time, Samlow testified, he could not observe the lower portion of the defendant's body because from where he was standing the merchandise counters, which were 5 feet high, blocked his view. He testified that he then saw the defendant walk through the checkout line, glance up at an overhead mirror and walk back through the line. Samlow testified that at this time he could see the lower part of the defendant's body and the defendant was not carrying anything. He did not, however, observe the defendant when the defendant later left the store.
A short time later one of the store clerks yelled to Samlow, he testified, and he observed the defendant hit and push Aguilera who fell backwards. Samlow and Aguilera then pursued the defendant until they apprehended him in the alley. Samlow testified that he never heard Aguilera fire his gun.
Samlow testified that the six pants suits submitted into evidence had arrived in the store the day prior to the incident and were the only pants suits of that type in the store the day of the incident. The only other items on the rack where they were hanging were six skirt suits. The next time he saw the pants suits was when they were brought up to the security office in a bag after they had apprehended the defendant.
Edwin Kennedy, a security guard for the store, was the final witness called by the prosecution. He testified that an employee of the store named Pearl came into the store carrying a full brown bag and that he escorted her while she carried the bag up to the security office.
The defendant testified on his own behalf. He stated that on the day of the incident he had gone to the Community Discount Center with a friend, Ronda Harrison. Miss Harrison, he testified, picked out four outfits including a blue outfit with checks or flags on it, a dress suit, a pants suit and another one which he could not remember. None of the outfits was part of the allegedly stolen merchandise, he testified. He had intended to buy one outfit for Miss Harrison, but when she insisted that he buy all four, he walked out of the store. He was not carrying a shopping bag when he left, he stated.
The defendant testified that when he left the store, Aguilera touched or grabbed his arm and hollered inside the door, "Is he the one?" The defendant then pulled his arm away and began walking away. Aguilera pulled out his gun and the defendant ran. The defendant testified that Aguilera fired two shots at him. During the whole incident, defendant testified, Aguilera never identified himself as a security guard. He was apprehended and taken to the security office, he testified. When police arrived they asked who had been firing shots. He stated that the police took Aguilera's gun, removed two spent cartridges and dropped them because they were still hot. While the police were leading him out of the store, defendant testified, one policeman jerked the defendant's handcuffs and pushed him on the shoulder, causing his knee to break a window and cutting his knee. He stated that he was treated at Illinois Masonic Hospital and he offered in evidence a hospital card bearing the name "Christofer Harris" and the address "1306 West Roosevelt." The prosecutor then stated:
"I don't mean to be facetious but the first question put to the witness, he said his name was Wilbert Harris. The complaint says Christofer Harris. The card says Christofer Harris. I just want to make sure Christofer Harris is Wilbert Harris."
The defendant stated that "Christofer" was not his name but that it had been put on the card because one of the police officers at the ...