APPEAL from the Circuit Court of Cook County; the Hon. JOHN
GANNON, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
After a trial by jury, defendant, Joyce Looney, was convicted of the offenses of theft of property not exceeding $150 in value (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)) and battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-3). She was sentenced to two years probation plus $100 in costs and $250 in fines for theft, and to two years probation with the first 30 days in the Cook County Department of Corrections plus $100 in costs for battery. Defendant appeals.
The issues on appeal are whether there was error in giving and refusing certain jury instructions; whether defendant was proved guilty of the offenses of theft and battery beyond a reasonable doubt; whether improper elements concerning aggravation and mitigation entered into the sentencing; whether defendant's sentence was excessive; and whether defendant's motion for a new trial was properly denied.
We conclude that the trial court erred in instructing the jury, and accordingly we reverse and remand the cause for a new trial.
Judith Billington, a security guard for the Turnstyle Department Store in Schaumburg, testified at trial as follows. On September 14, 1974, she observed defendant in the Turnstyle store for approximately 30 minutes. Defendant was accompanied by a younger woman and a baby. The women carried large, black, flattened purses. She saw defendant and the younger woman gather certain merchandise and place it into the two black purses which they had placed atop a car. During the course of her observations she indicated to Mark Edmonds, manager of the recreation department, that defendant was a shoplifting suspect. As defendant began to leave the building, Billington walked into a phone booth and dialed her own home phone number. From the phone booth she saw defendant leave the store without paying for the items. Billington left the building and saw defendant sitting in the driver's seat of a van, which was parked in a firelane just in front of the store. She approached the van on the passenger's side and displayed her badge to the younger woman. She announced that she was a security officer, that defendant and the younger woman were being detained for theft, and that they should hand over the purses and go with her. Having been ignored by the younger woman, she secured a foothold inside the van and showed her badge to defendant. She again announced her status, and told them that they were being detained for theft and that they should follow her. Defendant then accelerated, applied the brake and swerved, while Billington attempted to hang onto the moving van. Billington was hit with one of the purses, and she held onto the purse as she fell from the van, sustaining injuries. She went into the manager's office and opened the purse. In it she saw merchandise belonging to Turnstyle. She then called the Schaumburg police, and Officer Bartkavich arrived approximately 10 minutes later. Billington accompanied him to the Schaumburg Police Station, where warrants were sworn out. The purse and merchandise were introduced into evidence.
On cross-examination Billington testified that at the time of the incident she was wearing slacks, tennis shoes, a sweater, and a windbreaker, and that she was carrying a purse. She also stated that she was trained and employed by Turnstyle as a security guard, and that she was not a duly licensed police officer. She was, however, acquainted with the law of "bringing people under arrest or detaining them."
Mark Edmonds, manager of the recreation department of the Turnstyle store, testified that Judith Billington had pointed defendant out to him in the store as a shoplifting suspect. He did not stay with Billington because he did not want to give her away. He did not see anyone with defendant nor did he see defendant break the law. He saw that Billington was injured.
Marilyn McArthur, resident security agent for the Turnstyle store, testified as follows. As she arrived at the Turnstyle store in her car, she observed Judith Billington getting in on the passenger's side of defendant's van; defendant was getting in on the driver's side. She did not notice if there were other passengers. It appeared to her that Billington was displaying her badge and making a "stop." She also saw the van accelerate and brake suddenly. She got out of her car and followed the vehicle on foot. She then saw Billington on the ground, injured.
William Bartkavich, a Schaumburg police officer assigned to investigate the theft, testified. He identified certain items at trial, and stated that he had first seen them when he removed them from the purse at the Turnstyle store, and that he later inventoried them at the police station.
Defendant testified on her own behalf. On the morning of the incident she went shopping with her four-month-old son and her 15-year-old stepdaughter. Defendant drove the family van. They stopped at the Woodfield Mall shopping center and made some purchases, and then drove to the Turnstyle store for school supplies. They entered the store through a doorway at which there were no counters or registers. The only accessory they carried, other than her own purse, was a black bag in which she kept things for the baby. She did not find what she was looking for after 10 minutes, and so they left the store through the same doorway at which they had entered. They returned to the van and defendant started the engine. Her stepdaughter was in the passenger's seat holding the baby. At that time a "strange lady," who was dressed in civilian clothes, opened the passenger door. Defendant heard her yell "Let go." Defendant denied hearing the woman announce that she was a security officer. She saw the woman holding the baby's shirt. She thought that the woman was attempting to take the baby, so she started to pull out with the van. The bag with the baby's things fell out of the van during the incident. She drove home, but did not report the incident to the authorities.
Defendant's stepdaughter gave essentially the same testimony as defendant.
The jury found defendant guilty of both theft and battery, and she was sentenced on both offenses. Defendant's objections to the jury instructions, together with other alleged trial error, were set forth in her motion for a new trial, which was denied.
On appeal defendant contends that the trial court erred in refusing to give the jury her defense instruction, Illinois Pattern Jury Instructions, Criminal, No. 24.06 (hereinafter cited as IPI Criminal), concerning justifiable use of force in self-defense or in defense of another. The State argues that defendant's contention is not subject to ...