APPEAL from the Circuit Court of Cook County; the Hon.
MARVIN E. ASPEN, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 17, 1977.
After a bench trial defendant was convicted of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4) and sentenced to a term of 2 to 6 years. On appeal he presents the following issues for review: (1) whether his guilt was established beyond a reasonable doubt; and (2) whether the sentence of 2 to 6 years was excessive.
The pertinent facts follow:
Leon Woods testified that on January 18, 1975, at about 10 a.m., he was in a tavern in which there were 6 to 8 people seated along the bar. He bought one beer upon arriving and stood by himself, facing away from the bar. Defendant and Clephus Whitledge were seated at the bar a couple of stools apart. Woods ordered another drink and was getting his change from the bartender when something struck him from the side and he heard a gunshot. He looked around to see what hit him. He saw defendant and Whitledge standing at an angle, away from him. Whitledge staggered toward the stools and then fell on the floor with blood coming from his nose. Defendant put what appeared to be a gun down his pants. The gun appeared to be black in color but everything happened so fast he was not sure. Woods told the manager of the bar to call the police and have someone take him to the hospital because he had been shot.
On cross-examination, Woods stated that he was not looking directly at defendant at the time of the shooting. He heard the shot a few moments or a few seconds after he was struck. Woods testified he heard only one shot. Several days later, while he was in intensive care, Woods identified a photo of defendant. The officer let him look at the photo without saying anything. He identified it, and to the best of his knowledge only one photo was shown to him.
Clephus Whitledge testified he was in the tavern on January 18, 1975, at around 10 a.m. Defendant walked in and sat down on the stool next to him. When defendant leaned on him, he told defendant not to do it. Whitledge played some records on the jukebox and returned to the same seat. Defendant leaned on him once more, and once more Whitledge told him not to do so. He did not raise his voice to defendant and testified he had no weapon on his person. He saw defendant pull back his arm to strike him, but he did not see the blow come toward him, and he did not know what he had been hit with. He remembered nothing more. About three days later, the police came by his home and showed him four or five pictures, but he was not able to identify anyone. He stated that at the time he viewed the photos, he could not see well because one eye was bandaged. At trial he identified defendant as the man who struck him in the face. On cross-examination he testified that he had no difficulty watching television with one eye.
Harold Manor, the tavern manager, testified there were about five people in the tavern at about 10:15 a.m. on January 18, 1975. There were only three people sitting at the bar, and he saw defendant sitting next to Whitledge. He stated that Woods and another person were standing by a counterpiece. Defendant raised his voice and said to Whitledge, "Get yourself together," and his hand came up at the same time and struck Whitledge. Manor heard something go off and noticed a gun in defendant's hand. Whitledge fell to the floor and then defendant backed out toward the door with the gun in his hand. At no time did defendant put it in his waistband. Defendant walked outside to his car, opened the door and acted like he was putting something in it. Then he shut the door and walked away. Prior to defendant telling Whitledge to "Get yourself together," Manor had not heard Whitledge say anything. Manor described the gun as "kind of silver like * * * not the color silver itself, but you know ."
Chicago police officer Joe T. Thomas testified he was directed to a car in front of the tavern which was stipulated to be defendant's vehicle and made a thorough check but did not discover anything in it. He stated the manager of the tavern gave him a description of the offender as being between the ages of 26 and 30.
Chicago police officer Marvin J. Pharr testified that on January 19, 1975, he received a call from defendant, who stated he was a friend of the officer's brother-in-law. Defendant told him he shot a man in the nose and that he wanted to give himself up to him. Defendant met him in front of the officer's house at 6 p.m. that evening. Officer Pharr subsequently went to the hospital and showed Woods a group of five photographs. Woods was able to identify the photo of defendant. Officer Pharr testified he showed the same group of photos to Whitledge, but he was unable to identify any of them.
Sam Linto testified for the defense. He stated that when defendant began walking out of the tavern, he stopped to talk to a man and woman. Then a man who had previously talked to defendant walked over and said to Frazier, "I'll blow your brains out." At that time Linton left the bar and did not see anything after that. Linton testified defendant was not a friend of his, but he had known him for five years.
Aldo Washington testified that at about 10 a.m. on January 18, 1975, he was in the tavern and saw two men begin to "tussle." He ran out the door when he saw a short man pull out a gun. He had known defendant but was not a friend of his and did not see defendant in the bar that day.
James Jackson testified he saw defendant talk to a man for a few minutes and then stop to talk to a man and woman. He saw a short man approach defendant with a gun and then he left the tavern.
Defendant testified in his own behalf that he arrived at the tavern and asked the manager when the drug store opened. He also asked if he could make a phone call and was told he could not. He then went to the bar and ordered a drink. He told the man next to him, Clephus Whitledge, "My name is Fred, what's yours?" Whitledge said, "I don't want to know your name. I don't give a f____ what your name is." Defendant testified he started to leave, but he was called by a man he used to work with. The man introduced him to his wife and bought him a drink. Then Whitledge intruded between them. Defendant pulled his stool over and said, "Pardon me." Whitledge went away but subsequently pushed into him again. The third time Whitledge came over he pulled out a gun and stated he would kill defendant. Defendant stated he grabbed it, and when the gun went off, he thought he had shot Whitledge. Defendant said he was nervous and shaking and ...