APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Charles Jones (defendant) was indicted for aggravated battery and attempt to commit murder. Following his jury trial the jury returned guilty verdicts as to those two offenses as well as on the lesser included offense of reckless conduct. The trial judge entered judgment on the counts of aggravated battery and attempt to commit murder, sentencing defendant to terms of three to 10 years and six to 20 years in the Illinois State Penitentiary on those respective counts. On appeal defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) testimony concerning the commission of a prior offense by defendant was improperly allowed; (3) the State improperly cross-examined a defense witness concerning defendant's failure to produce certain witnesses; (4) defendant's sentence for attempt to commit murder may have been affected by the trial court's potential misapprehension of the minimum sentence allowed by statute; (5) defendant was improperly convicted of aggravated battery, as that charge was based on the same conduct as the charge of attempt to commit murder.
We affirm defendant's attempt to commit murder conviction and reverse his conviction for aggravated battery.
Defendant's contentions on appeal require a summation of the evidence adduced at trial. Carol Walters, who, at the time of the events at issue, was defendant's girlfriend and had been living with him for almost three years, testified for the State. On March 19, 1974, she was with the defendant at his apartment. Between 1 and 4 p.m. that day defendant told Carol that he was angry about what had happened the previous Saturday with Terry Szewczyk, the victim in this case. He stated that Terry was telling everybody about it. (On cross-examination defendant's attorney elicited from Carol the information that defendant was angry about Terry's statements that defendant had raped her, an accusation which Carol testified defendant had denied to her.) Carol also recalled that during that same conversation defendant said that: "* * * he was going to straighten it out and that he was going to off her." Carol interpreted defendant's use of the word "off" to mean that he was going hurt Terry in some way. Between 8:15 and 9:30 that evening Carol rode in a car with defendant to an alley behind defendant's apartment. He went into the apartment building and returned with a gun, which he placed in the back of his pants under his jacket. Defendant stated at that time that he was going to the apartment of Debbie Vasquez, with whom Terry was then living, to straighten everything out. They proceeded to that apartment, where defendant instructed Carol to knock and identify herself, while he hid from view. Carol did so and Terry opened the door. Carol entered, followed by defendant, who said he wanted to talk with Terry. Terry sat on a chair in the middle of the room and defendant walked up to her, asking why she had caused trouble. Terry responded that she did not want any trouble, which was why she had moved out. Defendant asked why she was telling everybody a lie about what had happened, then he pulled out a gun from behind his back and pointed it at the left side of Terry's chin. According to Carol, defendant was in the middle of a sentence about "if this trouble continued" when the gun went off and Terry fell back bleeding. Defendant stated that he did not mean to do it, that it was an accident. Carol told him to leave the apartment and he did so. Also in the apartment at the time were Debbie Vasquez and Ben Darling. Darling went out to call for help. When Carol followed Darling downstairs she saw him pick up a gun out of the bushes. Darling unsuccessfully tried to convince Debbie to get rid of it, then he went upstairs with it. On cross-examination Carol stated that she was surprised when the gun went off.
Terry Szewczyk, who was 15 at the time of the incident, testified that until the Saturday before the incident she had lived for one year with defendant's brother, William Jones, as his girlfriend. Also residing with her during that time were defendant's brother, Zyrone Jones, defendant and Carol Walters. The Saturday before the shooting, Terry moved in with Debbie Vasquez as the result of "some incident." On March 19, 1974 at about 9:45 p.m. Terry was at the Vasquez apartment when someone whose voice she recognized as that of Carol Walters knocked at the door. Terry opened the door and Carol walked in, followed by the defendant. Defendant walked up to within inches of Terry, who had sat down, and asked why she was telling people he had raped her. Terry replied that she did not want any trouble. Defendant then reached behind himself and produced a gun which he pointed at the left side of Terry's face. Terry closed her eyes. She could not recall whether defendant said anything further. Terry heard a "pow" and felt some pain. The next thing she remembered was regaining consciousness in a hospital a week later. She then testified concerning the extensive injuries to her jaw which were caused by the gunshot, injuries which prevented her opening her jaw more than one-quarter of an inch.
Patrolman Edward Beyer testified, over defendant's objections, that he was part owner and manager of the building which contained defendant's apartment. Beyer had an office in the basement of that building. In that office he kept a .38-caliber snub-nose revolver, wrapped in rags and hidden in the back of a sink. Beyer had last seen the gun in his office about three days prior to March 19, 1974. At that time it was in working order and was fully loaded with six rounds of ammunition. Defendant had access to the office because he had been working for Beyer, doing some janitorial work and keeping teen-agers out of the hallways and the laundromat. Beyer next saw his gun, which he identified by its serial number, in May of 1974 when he got it from the Recovered Property Section of the Chicago Police Department. Beyer was never asked at trial, nor did he state, whether defendant had permission to use the gun. Beyer did testify that when he arrested the defendant, defendant stated that it was an accident, he did not mean to do it, and he was sorry. On cross-examination Beyer stated that though there had been occasional fights in his building, he never had occasion to use the gun there. Beyer identified the gun produced by the State as being his gun.
Patrolman James Adams testified that the same gun was recovered near the scene of the shooting soon after the shooting occurred. At that time the gun contained five live rounds and one expended one. Adams owned a gun which was identical to the one found at the scene except that his was blue steel, not nickel-plated. Adams had fired his gun hundreds of times. Because of a safety device on that type of gun it could only be fired in two ways: by pulling the hammer all the way back and then pulling the trigger or by pulling the trigger all the way back. On cross-examination by defendant's attorney Adams stated that he had read and heard that the average trigger pull on such a revolver was five to six pounds. The gun would not fire in any other way, even if someone beat on it. The gun was then admitted into evidence without objection.
Defendant's only witness was Willie Jones, his brother. Willie had lived with Terry Szewczyk, his girlfriend, in the same apartment as the defendant until several days prior to the shooting. At that time he helped her move to the apartment of Debbie Vasquez. The day he helped her move, Terry did not tell Willie that defendant had raped her. (Terry Szewczyk, however, testified on cross-examination that between the 17th and 19th of March she told Willie Jones that defendant had raped her.) Willie volunteered that on the moving day he was accompanied by Ben Darling, whom he identified as a friend. On cross-examination Willie testified that he was not present when Terry was shot. The following testimony was then elicited:
"MR. BROWN: Q. Ben Darling a friend of yours?
Q. Ben Darling, a friend of your brother's?
Q. Do you know where Ben Darling is now?
Q. Debbie Vasquez a friend ...