APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
CROWLEY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-3) and sentenced to one year probation on condition he serve the first 90 days in the House of Correction. On appeal defendant contends that: (1) he was not proved guilty beyond a reasonable doubt because he reasonably believed he was being attacked, and (2) the sentence was excessive since defendant was 17 years old, employed as a carpenter and had no criminal history.
The following pertinent evidence was adduced at trial.
He was 18 years old on October 1, 1977. As he drove into a park in Chicago, he was forced to slow down because defendant and several other youths were standing out in the middle of the road. When he stopped, the youths approached his car and defendant accused him of kicking his sister's car at "Super Dog," a restaurant. Although he denied this, defendant kept repeating the accusation. Since the youths were "creeping in" to his car, he "took off." Several of the youths including defendant, pursued him in another vehicle into a dead-end street where defendant rammed the rear of his automobile as it came to a stop. Defendant walked over to the car, punched him twice in the nose, grabbed his hair and pulled him out of the car. Defendant then held his head down and kept kicking and thrashing him in the face. As he was "blackening out," he heard someone say "Quit kicking him," and when he looked up neighbors were getting defendant off him. He took down defendant's license plate number as defendant drove off. He went to a hospital where a doctor took X rays which indicated a broken nose. He left the hospital that evening and another doctor operated on him subsequently. On cross-examination, Cichowski denied that he kicked the car of defendant's sister, that he got out of his car when it came to a stop, that he approached defendant with his fists raised or that he took a swing at defendant.
She is the mother of James Cichowski. At about 11:30 p.m. on October 1, 1977 her son, James, came home with his face covered with blood, abrasions over his right eye and bruises on his arm. He was visibly shaken and stated that somebody had beaten him up. He asked to be taken to the hospital.
Charles Stade, on his own behalf
When he asked Cichowski why he kicked his sister's car, Cichowski replied with a vulgar remark and drove off. Defendant "got a little mad" and chased Cichowski around the park until he caught up with him in a dead-end street. Doug and Jim MacDonald were present in his car. Cichowski then got out of the car and swung at him, but missed. He then "protected himself," and hit and kicked Cichowski causing him to fall. Defendant testified he went after Cichowski not to "beat him up," but to find out his name.
He testified that he was in defendant's car and that it was Cichowski who swung first. He said that defendant hit Cichowski and kicked him a few times ...