APPEAL from the Circuit Court of Champaign County; the Hon.
JOHN P. SHONKWILER, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
A Champaign County jury found the defendant, Ricky Brown, guilty of battery in violation of section 12-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-3), of aggravated battery in violation of section 12-4 of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-4) and of intimidation in violation of section 12-6 of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 12-6). The court entered judgment on all three verdicts and defendant was sentenced to concurrent 4-year terms of probation for intimidation and aggravated battery with the first 6 months to be served in the county jail. Defendant was sentenced on the battery conviction to 6 months in the county jail, this sentence being concurrent with the sentences imposed for intimidation and aggravated battery.
The conduct addressed herein occurred on the evening of December 27, 1974, at the Douglas Recreation Center in Champaign, Illinois. The essential facts are that Victor Jones purchased a pistol from defendant while the two were at the center. After taking possession of the pistol, Jones handed it to his brother and Jones then attempted to walk to his car. Defendant and Charles Williams stopped Jones on the Douglas Center parking lot and defendant demanded the pistol's return. Jones refused to return the weapon unless the defendant refunded the purchase price.
Defendant then brandished a gun and struck Jones on the head. Jones tried to explain that he no longer had the gun, but defendant wrestled and pushed Jones onto the adjoining blacktop lot of Washington School. Defendant then cocked his gun, stated, "* * * I ought to kill you * * *," and resumed striking Jones. Defendant's brother eventually broke up the fight and Jones went home before the police arrived.
The single question raised in this appeal is whether it was proper for the court to enter judgment and sentence defendant on the battery and aggravated battery verdicts despite the fact that those offenses arose in the course of a series of closely related acts penalized by defendant's conviction and sentence for intimidation.
Section 12-3(a) of the Criminal Code provides:
"(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." (Ill. Rev. Stat. 1973, ch. 38, par. 12-3(a).)
Section 12-4(b) of the Code defines aggravated battery as conduct in which:
"(b) A person who in committing a battery either:
(1) Uses a deadly weapon;" (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(1)).
Section 12-6(a) of the Code provides that the offense of intimidation is committed when a person:
"* * * with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
(1) Inflict physical harm on the person threatened or any other person ...