APPEAL from the Circuit Court of Fulton County; the Hon. U.S.
COLLINS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 31, 1977.
Defendant, Robert K. Carmack, was charged by indictment with the offenses of mob action and aggravated battery resulting from inflicting bodily harm. After a jury trial Carmack was convicted of both charges and sentenced to concurrent terms of imprisonment of two to six years for aggravated battery and one to three years for mob action.
Both of the crimes charged allegedly occurred in the same incident at the residence of John Kem in Fulton County. Kem was identified as the victim of the attack. He testified that the defendant and four other men entered his home without invitation and confronted him in his dining room. A fight started when the defendant took a swing at Kem with a club he allegedly was carrying. Kem further reported that the fight proceeded into the yard where all five men jumped him and one of them hit him on the head. Kem testified that all five assailants had clubs and that he was chased into his back yard. He claimed he was punched by all of the assailants and threatened with death. His shirt was torn and bloody as a result of the attack. Throughout the ordeal defendant Carmack did most of the talking and threatening, allegedly.
• 1, 2 The first issue defendant raises on appeal goes to sufficiency of the evidence with regard to both offenses. Initially defendant challenges the sufficiency of the evidence because he contends there was no evidence that Kem suffered great bodily harm which is a necessary element of the offense of aggravated battery. Defendant contends that Kem was only struck with some sort of wooden stick or club, and suffered a gash on his head which resulted in some bleeding and which was so minor that Kem did not seek medical attention for it until three days after the incident. The question is not what the victim did or did not do to treat the injury inflicted but what injuries he did in fact receive. The record includes testimony of an osteopathic surgeon who treated Kem and diagnosed his injuries as a hematoma located on the right side of Kem's head behind the ear, bruising about his right eye, swelling of the back of his neck, and a laceration of the scalp that would have required stitching had Kem gone to a hospital emergency room immediately after the injury occurred. The term "great bodily injury" referred to as an essential element of the offense of aggravated battery is not susceptible of a precise legal definition but it is an injury of a graver and more serious character than an ordinary battery. (People v. Cavanaugh (2d Dist. 1957), 14 Ill. App.2d 573, 152 N.E.2d 266 (abstract).) Ultimately the question of whether a particular injury amounts to great bodily harm (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(a)) is a fact question for the jury. (People v. Smith (1st Dist. 1972), 6 Ill. App.3d 259, 285 N.E.2d 460.) The case of People v. Newton (2d Dist. 1972), 7 Ill. App.3d 445, 287 N.E.2d 485, is similar to the instant case. There the injury inflicted was found to be great bodily harm even though the victim had initially gone to the hospital but left and went to his own doctor's office because the hospital was busy. The jury's verdict with regard to the nature and extent of the injury suffered by John Kem is not so improbable, or unjustified as to suggest a reversal.
• 3 Defendant acknowledges that one of the four men with him actually struck Kem on the head, but did so only because the victim was about to strike the defendant with a shotgun. This and other evidence advanced by the defendant to contradict the State's evidence was resolved by the jury against defendant. After reviewing the record, we find that the evidence presented was sufficient to prove defendant's guilt of both aggravated battery and mob action and we will not substitute our judgment for that of the trier of fact who had a better opportunity to observe and view the evidence. People v. Latham (3d Dist. 1975), 31 Ill. App.3d 66, 333 N.E.2d 583.
• 4, 5 Defendant also claims that the trial court committed prejudicial error by refusing his tender of Illinois Pattern Jury Instructions 24.06 and 24.15 on the theory of self-defense. The victim's testimony was that the defendant, among others, struck and injured him. Defendant contended that he did not strike the victim John Kem, but he was struck by one of the other attackers. Though the defendant has the right to have the jury instructed on the law applicable to a particular set of facts even if there is only slight evidence relating to the defendant's theory of the case (People v. Kucala (1st Dist. 1972), 7 Ill. App.3d 1029, 288 N.E.2d 622; People v. Adcock (3d Dist. 1975), 29 Ill. App.3d 917, 331 N.E.2d 573), the record indicates that defendant denied striking the victim at all, and he did not claim that he acted in self-defense. (See People v. Bratcher (4th Dist. 1975), 29 Ill. App.3d 202, 330 N.E.2d 297.) Defendant seeks to establish that although he and the others were the initial aggressors they had abandoned the attack and were retreating; that the victim was beating defendant with a shotgun and one of the other participants, Bill Goulding, intervened to protect defendant by striking the victim on the head. As was discussed earlier, it is not unlikely, considering the swiftness and intensity of the attack, that none of the participants could give a detailed account of each blow or the injury suffered therefrom. The jury ultimately chose to believe the victim's version, and rejected defendant's claim that he was not accountable for the injury inflicted upon the victim by the other participants. The victim's actions in striking or attempting to strike the defendant or his other attackers was clearly self-defense. Any attempt by the other participants who were the initial aggressors to protect themselves or the defendant cannot be raised to the level of self-defense. Defendant's theory that he and the other participants acted in self-defense or in defense of another person (Ill. Rev. Stat. 1973, ch. 38, par. 7-1) is not available where defendant and the other participants were the initial aggressors. Under section 7-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 7-4), entitled "Use of Force by Aggressor," only a completed withdrawal followed by a new encounter, initiated by the victim, which the court found was not the case here, would allow defendant to avail himself of the theory of self-defense. Absent even slight evidence of self-defense the trial court properly refused the defendant's tendered instructions. People v. Adcock (3d Dist. 1975), 29 Ill. App.3d 917, 331 N.E.2d 573.
• 6 Defendant also argues that the jury was not properly instructed on the law relating to aggravated battery. Defendant claims that an instruction defining simple battery should have accompanied the aggravated battery instruction. It has been held that IPI Criminal Instruction No. 11.07 (aggravated battery), is sufficient without an instruction on simple battery. (People v. Hadley (4th Dist. 1974), 20 Ill. App.3d 1072, 314 N.E.2d 3.) In the instant case defendant did not tender IPI Criminal Instruction No. 11.05 and he even objected to its being given. Under these circumstances we believe defendant cannot now raise the issue for review.
• 7 Defendant next contends that reversible error occurred when the trial court refused to grant the mutual motions of the State and the defense for joinder of the related prosecutions for trial. Section 114-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114-7) provides, "The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge." The defendant and four other men involved allegedly participated in the same comprehensive criminal transaction which resulted in the return of the several indictments against them. From a reading of the statute it is clear that the decision of whether a joinder of related prosecutions should be granted is a matter left to the sound discretion of the trial court. The record indicates that the reason the trial court denied the motions for joinder was because it believed that Carmack, being the only one of the group of defendants who had a prior criminal felony record, might prejudice the rights of the other defendants if they were forced to be tried with him and if Carmack's prior felony conviction was used for impeachment purposes. The issue thus becomes whether the trial court abused its discretion by denying defendant's motion for joinder. In People v. Canaday (1971), 49 Ill.2d 416, 424, 275 N.E.2d 356, 361, it was aptly stated, "It is clear from decisions of this court that if one or more defendants are jointly indicted they are to be tried together, unless the trial court in the exercise of sound discretion considers that separate trials should be granted." Although the Canaday case, unlike the instant case, involved a motion for severance, and provided that the introduction of criminal records of a co-defendant was not per se a ground for severance, we have been shown no prejudice and believe the trial court did not abuse its discretion in choosing to refuse the joinder under the facts of the present case. It is not determinative that the State did not use Carmack's prior conviction for impeachment purposes. There being no abuse of discretion, the denial of defendant's motion for joinder was not reversible error, under the circumstances.
• 8 Defendant filed a pretrial motion to change the place of trial pursuant to the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-6), accompanied by an affidavit alleging prejudice in the community was such that he could not receive a fair trial. Specifically defendant complained of news items appearing in a local newspaper several months prior to the trial. The trial court denied the motion and proceeded with voir dire. Before opening statements, defendant renewed the motion which was again denied. He now claims it was an abuse of the trial court's discretion to deny the motion. We agree that the trial court cannot capriciously or arbitrarily deny a motion for a change of place of trial. (People v. Parisie (4th Dist. 1972), 5 Ill. App.3d 1009, 287 N.E.2d 310.) Only when the prejudice against defendant in the county is of such magnitude that defendant cannot receive a fair trial need the trial's location be changed. (People v. Cesarz (1969), 44 Ill.2d 180, 255 N.E.2d 1.) Here the defendant failed to exhaust all his peremptory challenges. It seems obvious therefore that even after the voir dire there was insufficient prejudice shown to require a change of place of trial. We believe that the trial court did not abuse its discretion in denying the motion.
• 9 Defendant finally contends that the sentence imposed was excessive. We disagree. Carmack was a previously convicted felon and on probation at the time of the commission of the offenses from which he now appeals. The two- to six-year sentence imposed for aggravated battery was not excessive in light of the nature of the offense charged and the history and character of the defendant. Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(c)(4).
• 10 The State has conceded in its brief that the offenses of aggravated battery and mob action arose essentially from the same transaction with the result that only one penalty should have been imposed upon defendant. People v. Ritchie (3d Dist. 1975), 25 Ill. App.3d 875, 323 N.E.2d 432; People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1.
For the reasons stated the judgment of conviction entered for the offense of aggravated battery and the sentence imposed thereon are affirmed, and the judgment of conviction and sentence for the ...