APPEAL from the Circuit Court of Stark County; the Hon. C.M.
WILSON, Judge, presiding.
MR. PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal from convictions of aggravated battery and the unlawful use of a weapon following a jury trial in the Circuit Court of Stark County. The defendant, Randy J. Deskin, was sentenced to five years probation, the first year of which was to be served on work release.
At the trial, the State's witnesses indicated that the victim of the alleged battery, Wayne Thompson, had been drinking and that the incident arose because Thompson insulted Deskin. Two witnesses testified that, during the evening of September 19, 1976, at Brownie's Supper Club, they observed the defendant pull a revolver and strike Thompson on the head, although they admitted Deskin's fist, rather than the pistol, may have actually struck Thompson. A third incident witness stated he did not know whether the defendant struck the victim with a gun and admitted he was not in a position to see the blow land. In addition, a photograph was also introduced into evidence to show that the victim had a rather gaping laceration above his hairline.
The victim, however, did not testify. A subpoena had been issued for him, but neither the sheriff nor the marshal for Wyoming, Illinois, were able to locate him.
According to the defendant's testimony, Thompson had made obscene comments and obscene gestures to the defendant and the defendant's wife. Deskin admitted striking Thompson but stated that, although he was wearing a large ring, he did not then have a gun in his hand. He further testified that he did not pull the gun out of his back pocket until he reached the door.
Several defense witnesses testified that Thompson had been drinking and using drugs. The defendant's wife, sister, sister-in-law and a friend each testified that Thompson provoked the altercation and that they did not observe a gun in the defendant's hand.
The defense also attempted to call Mr. Eugene H. Rennick, Jr., acting State's Attorney at the time of the incident. While in that capacity, he had interviewed Thompson and in a file memorandum he related that:
"Thompson said it all started because of him making remarks about Deskin's shirt. He said he had been drinking (Tequilla Sunrise) and was not in very good shape. He said that he told Deskin that his shirt was obnoxious. Deskin did not like this and he then claims he does not know what happened except that he got hit by Deskin or he was told he got hit by Deskin. Thompson said he does not know what he got hit with. Obviously, he does not want to testify against Deskin for some reason * * *."
The trial court, however, did not allow either Rennick's testimony or this memorandum into evidence because these remarks concerning Thompson's statement were hearsay.
In addition, the trial court allowed the following documents to be admitted into evidence: A certified copy of an application for a liquor license by Dorothy J. Brown, d/b/a "Brownie's Supper Club," in the County of Stark, filed in the office of the clerk of Stark County on October 30, 1976, and a copy of a continuation of a surety bond, numbered 4418486, in the amount of $1000, effective January 1, 1976, and expiring January 1, 1977. The Stark County clerk also certified that the application was approved by the Stark County Liquor Commission on December 2, 1975, and that License Number 164-C, expiring December 31, 1976, was issued on that date. Although the defense made an objection, no specific reason for not admitting this evidence was advanced, and the trial court admitted this evidence over the objection.
1 The first issue raised by the defendant is whether the trial court erred by refusing to allow the former acting State's Attorney to testify concerning his conversation with the victim. The defendant, after pointing out that the exceptions to the rule against the admission of hearsay evidence are based on necessity and public policy, argued that the testimony of the acting State's Attorney was necessary to preserve Thompson's out-of-court statement showing his lack of credibility, and that, as a matter of public policy, the defendant was otherwise denied a fair trial because the State elected to go forward with the prosecution without the victim. Neither of these arguments form a legal basis for the admission of hearsay, and both are based on the implication that the State intentionally proceeded without the victim.
2-4 Generally, the failure to call a witness who could testify concerning material facts in a case raises a presumption that the testimony would be unfavorable to the party failing to call the witness, and in a criminal case, such an inference can create a reasonable doubt as to the defendant's guilt, even though the presumption can be rebutted by an explanation of the failure of the witness to testify. (People v. Guido (1962), 25 Ill.2d 204, 184 N.E.2d 858.) The testimony of the acting State's Attorney was not necessary to raise the inference. Thompson's failure to testify raised the inference. However, that inference was rebutted by the explanation of the sheriff that Thompson had been subpoenaed and was searched for but could not be located. Furthermore, the failure of the State to call all occurrence witnesses does not raise an inference that those witnesses who were not called would be helpful to the defendant where one eyewitness does testify directly to the event and his testimony is clear and convincing. (People v. Rowe (1st Dist. 1977), 45 Ill. App.3d 1040, 360 N.E.2d 436.) Several witnesses testified concerning the occurrence and none denied that the defendant struck Thompson. Two of the State's witnesses testified that the defendant, with a pistol in his hand, struck Thompson on the head. Therefore, Thompson's failure to appear should raise no inference negative to the People.
5 As to the exceptions to hearsay suggested by the defendant into which he is attempting to fit the testimony of the former acting State's Attorney, we can find no error by the trial court in not admitting this evidence based on these theories. On appeal, the defendant argues two alternative theories. However, the theory that the victim's statement to the former acting State's Attorney was a declaration against interest was neither presented to the trial court during trial nor in the defendant's post-trial motion. Therefore, the defendant has waived this argument for the purpose of appeal. Ill. Rev. Stat. 1977, ch. 110A, par. 366(b)(2)(iii); People v. Walker (1st Dist. 1974), 22 Ill. App.3d 711, 318 N.E.2d 111.
6 The defendant secondly argues that the evidence should have been admitted because it was an admission of a party opponent. In a criminal case, the party opponent to the defendant is the People of the State of Illinois. The ...