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People v. Athey

OPINION FILED NOVEMBER 10, 1976.

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

v.

GARY ATHEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Edgar County; the Hon. RALPH S. PEARMAN, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 3, 1976.

An Edgar County jury found the defendant, Gary Athey, guilty of attempt murder in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) and of aggravated battery in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4). The Circuit Court for the Fifth Judicial Circuit, Edgar County, entered judgment on both verdicts and, since both offenses arose from the same conduct, sentenced the defendant to 4 to 8 years in the penitentiary for the most serious offense. The defendant appeals, alleging that he was not proved guilty beyond a reasonable doubt, that the trial court erred in refusing to give a defense instruction concerning self-defense and that the court misunderstood the minimum sentence it could impose for attempt murder.

On May 2, 1974, the defendant was seen carrying a shotgun along Main Street in Paris, Illinois. Three Paris police officers, Officers McKenna, Gosnell and Nicholas, investigated and apprehended one Cliff Rigsby who was unarmed and seen running along Main Street. Rigsby said he was looking for the defendant so Gosnell remained with Rigsby while McKenna and Nicholas searched for the defendant.

McKenna located the defendant at the rear of a nearby apartment building and arrested him for disorderly conduct. McKenna and Nicholas attempted to handcuff the defendant who was trying to escape on foot. McKenna tried to prevent the defendant's escape by tripping him, however, both officers and the defendant fell to the ground. As they fell McKenna felt a slapping on his holster, and saw his .357 magnum service revolver fall to the ground.

Once on the ground, defendant placed his hand on the loose revolver as he continued to struggle. Officer McKenna's hand was also on the barrel and cylinder of the gun when he felt the cylinder turn in response to someone's pull on the trigger. Defendant at that time was gripping the stock of the gun with his left hand. The revolver discharged and McKenna felt a pain in his right hand which, upon later investigation, turned out to be a powder burn. Trooper Frank Barnhart of the Illinois State Police, who had just arrived at the scene, thought he had been hit in the left foot by the bullet or rock fragments that necessitated removal by a physician.

Immediately after the shooting, defendant repeatedly shouted, "You fucken [sic] pigs, I'll kill you motherfuckers." McKenna was then able to pull the revolver from the defendant and throw it from the scene.

I.

The State failed to file a brief in this appeal, however, there is no rule requiring pro forma reversal for failure to file a brief in this court. Supreme Court Rule 352 (58 Ill.2d R. 352) provides the only sanction for failure to file a brief on appeal. Rule 352 states, in pertinent part that "* * * [n]o party may argue unless he has filed his brief as required by the rules * * *." Our supreme court, however, has recently stated that:

"* * * the judgment of a trial court should not be reversed pro forma for the appellee's failure to file its brief as required by rule. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal.

We do not feel that a court of review should be compelled to serve as an advocate for the appellee or that it should be required to search the record for the purpose of sustaining the judgment of the trial court. It may, however, if justice requires, do so. Also, it seems that if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal. In other cases if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed." (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 131-33, 345 N.E.2d 493, 494-95.)

Accordingly, we have reviewed the record and defendant's brief in order to determine the merits of this appeal.

II.

• 1 Defendant alleges that his guilt was not proved beyond a reasonable doubt. Section 8-4 of the Criminal Code of 1961 (Ill. Rev. ...


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