APPEAL from the Circuit Court of Du Page County; the Hon.
CHARLES R. NORGLE, SR., Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant herein was charged in two complaints with battery upon William R. Wick and James R. Horrell II. In a bench trial he was found guilty of both offenses and sentenced to spend 15 consecutive weekends in the Du Page County Jail and placed on probation for one year. He appeals.
The defendant contends that the evidence was not sufficient to establish his guilt beyond a reasonable doubt where the complaining witnesses did not testify; that the State must prove lack of provocation; and that the sentence was excessive.
On the night of November 1, 1976, Karen Loy, Maria Prosek, William Wick and James Horrell were at the Iron Horse Lounge in West Chicago. Both Maria Prosek and Karen Loy testified that as they were leaving the tavern, the defendant attacked Horrell and knocked him to the ground. Maria Prosek attempted to pull the defendant off of Horrell but she was pulled off. Horrell was then kicked in the face by the defendant. Wick went to the aid of Horrell and Karen Loy testified that Mills then started beating Wick, knocked him down and kicked him in the stomach. One of the victims apparently sustained a broken nose, a broken jaw, and a broken cheekbone, while the injuries to the other victim consisted of tissue damage. Horrell and Wick did not testify. Maria Prosek testified that the attack was without provocation. The defendant testified that he was not at the Iron Horse on the night in question but was at his brother's house. In rebuttal, Karen Loy testified that the defendant was in the Iron Horse, that words were exchanged between defendant and Horrell, that Horrell attempted to shake hands with defendant, and the defendant "went to kick him and the owner jumped in and got kicked instead."
Defendant's wife and his brother testified that defendant was at his brother's house at the time of the attack on November 1, 1976. Three other witnesses also testified on behalf of the defendant. Bolla testified that defendant was not the perpetrator of the attack and the other two witnesses testified that they were friends of the defendant and that he was not at the Iron Horse on the night in question.
We are thus confronted with conflicting testimony and in this regard the remarks of the trial judge are most pertinent. After summarizing the testimony of Prosek and Loy, he said:
"It's a question of credibility.
And in this case the Court had the opportunity to see each of the witnesses at close hand.
I noted each one of them as they testified.
I heard what they said, how they said it.
I had the opportunity to judge their demeanor on the stand as they testified.
I have also had the opportunity to weigh their reasons for testifying.
The defendant does not have to prove that he is innocent.
In this case he undertook to present witnesses on his behalf who were, in essence, to establish that he was not ...