APPEAL from the Circuit Court of Clinton County; the Hon.
ARTHUR G. HENKEN, Judge, presiding
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Defendant, Robert G. Pahlman, appeals from a judgment of guilty entered following a jury trial in the Circuit Court of Clinton County for the offense of aggravated battery in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)). The defendant was sentenced to probation for 1 1/2 years with a $500 fine. One of the conditions of probation was a 60-day term of periodic imprisonment in the county jail to be served on weekends with every third weekend off. On appeal defendant contends that the trial court erred in: (1) failing to give a separate issues instruction which included the element of voluntary intoxication, and (2) imposing the weekend imprisonment sentence upon defendant as part of his probation sentence when the State conceded that the nature of the offense did not require incarceration of the defendant.
The pertinent facts are as follows: on the evening of February 7, 1976, the defendant and a group of about 10 friends, all from Trenton, Illinois, were having a bachelor party for one of their number. The group visited seven or eight different bars before entering the Sleepy Hollow Tavern in Germantown, where the described incident took place. The defendant testified that he had at least one beer in each bar visited and that by the time he reached the Sleepy Hollow Tavern, although he was not intoxicated, he was "feeling good."
Daniel Langenhorst, his wife JoAnn, and several of their relatives were sitting at the bar. At about midnight defendant went to the bar to order a drink and picked up a $5 bill that belonged to Daniel Langenhorst. One of Langenhorst's relatives accused defendant of trying to steal the money and defendant explained that he had only done it in jest. He and Langenhorst shook hands and dismissed the incident but the relative went around to other people in the bar and told them that defendant was a thief and made some derogatory remarks about people from Trenton in general.
About 15 to 30 minutes later a commotion broke out at one of the game machines. Testimony as to the precise chain of events is unclear but the following is apparent. Daniel Langenhorst pushed his way through the crowd toward defendant and defendant struck him in the left cheek. The two men momentarily backed away and defendant was hit by JoAnn Langenhorst. Defendant then attempted to slap her, but the evidence is unclear as to whether he actually touched her. At this point one of defendant's companions grabbed defendant and attempted to push him toward the exit to avoid further conflict. Daniel Langenhorst again came at defendant and defendant freed himself from his friend, threw Langenhorst to the floor and then kicked him twice in the face. As a result of this kicking, one tooth was knocked out, a partial plate was damaged and a number of Langenhorst's facial bones were broken. Defendant then went outside the tavern and waited until the police arrived and arrested him.
At the conference on instructions the defendant offered the alternative defense of self-defense and intoxication by requesting the "definitional" instruction of each defense followed by the "issues" instruction for aggravated battery which incorporated the respective affirmative defenses raised. The order of these instructions is as follows: the definition of self-defense (defendant's instruction No. 2, IPI Criminal No. 24.06); the issues instruction for aggravated battery, including self-defense as an issue (defendant's instruction No. 3, IPI Criminal No. 25.05); the definition of the intoxication defense (defendant's instruction No. 4, IPI Criminal No. 24.02); and the issues instruction for aggravated battery, including the intoxication defense as an issue (defendant's instruction No. 5, I.P.I. Criminal No. 25.03).
The court granted defendant's instruction No. 2, which defined self-defense, and also defendant's instruction No. 3, the issues instruction for aggravated battery, which read:
"To sustain the charge of aggravated battery, the State must prove the following propositions:
First: That the Defendant knowingly and intentionally caused great bodily harm to Daniel Langenhorst.
Second: That the defendant was not justified in using the force which he used.
If you find from your consideration of all the evidence that each of these propositions has been proven beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you should find from your consideration of all the evidence that any of these propositions has not been proven beyond a reasonable doubt, then you should find the defendant not guilty."
The court then granted defendant's instruction No. 4, defining the defense of intoxication, but, in light of "all the evidence and the other instructions given," denied defendant's instruction No. 5, which incorporated No. 4 into the issues ...