APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendant, Dennis Szudy, was found guilty of the offense of aggravated assault (Ill. Rev. Stat. 1975, ch. 38, par. 12-2(a)(1)). He was sentenced to a term of 10 months in the House of Correction. His sole contention on appeal is that this conviction violated his constitutional right against double jeopardy inasmuch as he had previously been placed under a peace bond (Ill. Rev. Stat. 1975, ch. 38, par. 200-1 et seq.) for the same acts upon which the conviction is based.
While we conclude that the defendant's contention is without merit, nevertheless, for the reasons hereinafter set forth, we reverse the conviction.
On April 20, 1976, a warrant issued for defendant's arrest pursuant to a misdemeanor complaint filed by his wife. The complaint charged that on April 19, 1976, without lawful justification, defendant attempted to choke her with a rolled up handkerchief, placing her in reasonable apprehension of receiving a battery.
On April 26, 1976, the parties appeared before a judge other than the one who presided at trial. The State related that the complainant wished that defendant be placed under the restraints of a peace bond. The State also requested the court to admonish defendant that if he did not leave complainant alone, the State would seek a revocation of a parole term to which defendant was apparently then subject, and effect his reincarceration. The court questioned defendant, who was not represented by counsel at this proceeding, whether he understood the State's position. Defendant responded in the affirmative, adding that complainant was his wife and had filed an action for divorce. The court then said to defendant:
"That's neither here nor there.
What he is telling you, I think, is good information for you to know. Even this arrest now, it is now going to be stricken, can put you back in the joint.
I don't know what you are doing for time, at this juncture, it does not make any difference to me, but if you don't want to go back, don't bother lady, or anything else.
The report of proceedings indicates that no plea was entered, no witnesses were sworn and no testimony was taken. The half-sheet record discloses the court's order as "Stricken from docket with leave to reinstate." There is no reference to a "peace bond" proceeding nor that the defendant in effect executed such an undertaking.
Without indicating what had transpired in the interim, the record further disclosed that on May 28, 1976, the matter came on for trial on the original misdemeanor complaint before Judge Genesen. The complainant testified that she was at her aunt's home in Chicago on April 19, 1976, when defendant took a large handkerchief from his pocket, drew it taut with his hands, and, while advancing toward her, told the witness he was going to strangle her. She said she screamed and backed away, and that defendant fled when her aunt appeared on the scene.
Defendant, who was represented at this trial by appointed counsel, claimed that he had gone to the home of complainant's aunt to ask complainant about some of his personal belongings. The complainant told him that he could have everything if he returned in two hours. He stated that he had been wearing a handkerchief around his head as a sweat band; and when his wife asked him why he was wearing this "silly looking thing," he removed it, showed it to her and told her its purpose was to keep perspiration out of his eyes. He denied pulling the handkerchief taut between his hands, and stated that he had in fact backed away from complainant as she walked. He then placed the article in his pocket and left the area. He testified that he learned a warrant had been issued for his arrest when he telephoned the aunt's home later that day.
At the close of the evidence and arguments of counsel, the court commented on certain aspects of the testimony that was presented, the lack of evidence of ill feeling between the complainant and the defendant, and the lack of motive on the ...