APPEAL from the Circuit Court of Tazewell County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Dan Lee appeals from a conviction on two counts of armed violence following a jury trial in the Circuit Court of Tazewell County. The trial court entered judgment of conviction on one of the counts of armed violence and sentenced defendant to a term of imprisonment of not less than 3 nor more than 9 years, to be served concurrently with a sentence previously imposed upon defendant. Defendant was charged in a four-count indictment with the offenses of armed violence and conspiracy, but the conspiracy count of the indictment was dismissed prior to trial.
On appeal in this court, defendant argues (1) that the State failed to prove defendant was armed with a dangerous weapon, (2) that the indictment fails to state a cause of action, (3) that the trial court abused its discretion in denying defendant's motion for severance, and (4) that the sentence imposed by the trial court was in excess of that authorized for the offense of armed violence.
Defendant was specifically charged in the indictment, which alleged that he and his six co-defendants committed (in Count I) the offense of armed violence in violation of section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 33A-2) by committing the offense of aggravated battery in violation of section 12-4(b)(1) of the Criminal Code while armed with dangerous weapons, by beating and striking with bludgeons certain individuals, thereby causing bodily harm to those persons. In Count II of the indictment, the charge was armed violence by committing the offense of aggravated battery in violation of section 12-4(a) of the Criminal Code while armed with dangerous weapons, bludgeons, by beating and striking a certain individual, thereby causing him great bodily harm. Count III of the indictment charged that defendant committed the offense of armed violence by committing the offense of aggravated battery in violation of section 12-4(a) of the Criminal Code while armed with dangerous weapons, bludgeons, by beating and striking another individual, thereby causing him permanent disfigurement.
It appears from the evidence that all seven defendants were present at a place called Stone Toad in the early evening of December 14, 1974. The bartender at the Stone Toad testified that she observed a metal bar under the shirt of one of the defendants (not Dan Lee) and that all seven defendants left the Stone Toad together about 7 p.m. The Club, a private club, was holding a game feed dinner on the evening of December 14, 1974. Bonnie Heilman, a member of The Club, testified that she attended the dinner that evening, and saw none of the defendants at The Club before she left the premises at about 7 p.m. that evening.
The State presented 12 occurrence witnesses who were present at The Club shortly after 7 p.m. on December 14, 1974, when a fight broke out. These witnesses generally agreed that from 5 to 14 men came through the front door of The Club and started swinging clubs, breaking glass and hitting patrons. Some of the witnesses, however, did not observe the mass entrance and thought, at the time, that a fight had started among persons already in The Club. At least 11 of the witnesses testified that during the fighting they observed someone with a club or cane. The 12th witness, a bartender at The Club, testified that after the fight was over, he found a spud wrench behind the bar. Nine of the occurrence witnesses testified that they saw defendant Dan Lee among the fighting crowd, and four of these witnesses testified that defendant Dan Lee had a cane or a club, while only one witness testified that that witness did not see Dan Lee with a cane or a club. All of these occurrence witnesses testified that they observed someone swinging a club, someone fighting while armed with a club, or someone hitting another person with a weapon or club during the ruckus. Four of the witnesses stated that they saw the defendant Dan Lee strike someone while armed with a club or cane. One other witness testified that he observed Dan Lee hit someone, but that the defendant was not armed at that particular time.
In addition to the 12 occurrence witnesses referred to, 4 of the 5 alleged victims testified at the trial. David Pagliaro testified that he saw one of the defendants, other than Dan Lee, pass him, and was then struck on the top of the head. After being struck on the head, Pagliaro saw nothing, since his eyes were full of blood. Peter Drudi testified that he saw Dan Lee and another defendant running through The Club, each with a cane or club, and that one of the defendants, other than Dan Lee, hit Drudi over the head. Drudi conceded that he did not mention any weapons on defendant Dan Lee either in his statement to the police or in his grand jury testimony. Rick VonDerHeide claimed his Fifth Amendment privilege against self-incrimination, and the privilege was sustained as to questions concerning events once the fight broke out. Brad VonDerHeide testified that a number of persons entered The Club and that someone hit him on the back, head and across the shoulders. He also stated that he saw Dan Lee at The Club that evening.
Four of the seven defendants, including Dan Lee, testified in their own behalf at the trial. Generally, the testimony of the defendants indicated that, while all had been present at the Stone Toad, the four testifying defendants arrived at The Club either singly or in groups of two. These four defendants all testified that the fighting was either in progress as they entered, or commenced just after they entered. Defendant Dan Lee testified that as he entered The Club he noticed someone holding his brother, also a defendant in this case, and that he went to his brother's aid. Defendant Dan Lee testified that he had no weapons with him while at The Club.
Dan Lee also stated that, shortly after the fighting, he observed a police officer arrest John Lee, one of the co-defendants, at a time when the officer had a cane in his hand. Dan Lee testified that he never saw the cane in John Lee's hand. The police officer had, however, testified that he had observed the defendant, John Lee, swinging the cane inside The Club, and had chased John Lee outside where he removed the cane from that defendant. The cane was admitted into evidence over the objection of the defense.
After hearing the evidence, the jury returned verdicts finding four of the defendants, including Dan Lee, guilty on Counts I and II of the indictment, finding one of the defendants guilty on Count I, finding two of the defendants not guilty on all counts, and finding all of the defendants not guilty on Count III. The trial court entered judgment of conviction against the defendant Dan Lee on Count II of the indictment, and sentenced him as we have indicated.
In People v. Lee (3d Dist. 1976), 44 Ill. App.3d 43, 357 N.E.2d 888, we reversed the convictions of John Lee and Patrick Hunt, two defendants in the trial who did not testify at the trial, on the ground that IPI Criminal No. 2.04, relating to defendant's failure to testify, was given to the jury over the objection of those defendants. The instant appeal, however, is brought solely by defendant Dan Lee, who did testify in the trial, and does not directly raise the issue on which the convictions of John Lee and Patrick Hunt were reversed.
• 1 As we have noted, an argument is made by defendant on this appeal to the effect that the State failed to prove beyond a reasonable doubt that defendant was armed with a dangerous weapon, a material allegation of Counts I and II of the indictment. As has been noted in the case of People v. Stringer (1972), 52 Ill.2d 564, 568, 289 N.E.2d 631:
"`[W]e may not substitute our judgment for that of a jury on questions involving the weight of the evidence or the credibility of the witnesses [citations], and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.' (People v. Mills, 40 Ill.2d 4, 19; accord, People v. Nicholls, 44 Ill.2d 533."
At the trial, five witnesses, including one victim, testified that the defendant had a cane, bat, pipe or club in his hand. In such circumstances, we cannot say that the evidence is so improbable as to raise a reasonable doubt that defendant was armed with some type of cane or ...