APPEAL from the Circuit Court of Fulton County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 13, 1980.
This is an appeal from a judgment of conviction entered after jury trial by the Circuit Court of Fulton County, Illinois.
On August 3, 1977, at 10:45 a.m. Nicholas Del Mastro was driving his truck south on Fifth Avenue in Canton, Illinois. At that time, defendant, Kenneth Churchill, turned his car into Fifth Avenue. The two vehicles proceeded south, the car in the left lane and the truck in the right lane. After Fifth Avenue crosses Elm Street, Fifth narrows to one lane, and there the two vehicles collided.
Both vehicles stopped with defendant's vehicle in front of Del Mastro's. Both drivers got out of their vehicles. Del Mastro looked at the damage to his vehicle and asked if defendant was all right. While Del Mastro was looking at the damage to his vehicle, defendant punched him on the jaw, knocking him to the pavement. Del Mastro was dazed by the blow and received a cut jaw. After punching Del Mastro, defendant carried him to the grass at the side of the road.
In response to a radio call, Canton police officer Dennis Brown drove to the scene of the collision and parked 10 feet south of defendant's car. He looked at defendant's car and then went to the place where defendant, Del Mastro, and Del Mastro's passenger, Gregg Beard, were standing. Brown was told that defendant had struck Del Mastro. Brown told defendant to go and sit in the police car. After the ambulance arrived, Brown noticed that defendant was standing next to his own car.
Brown walked to where defendant was standing and repeated his demand that defendant sit in the police car. At that point, defendant struck Brown, knocking him to the ground. Brown received a deep cut on his upper lip and a bruise on his arm. Defendant was then restrained.
Defendant was charged with aggravated battery for striking a police officer engaged in his official capacity and with battery for harming Nicholas Del Mastro. The causes were joined for jury trial on November 15, 1977.
At trial, defendant's wife testified that Del Mastro's hand was on the truck door handle when defendant approached the truck. Del Mastro moved his hand off the handle and paused. Defendant struck him.
She also testified that Officer Brown walked to the defendant's car at a fast rate and pointed his finger at defendant while ordering him to the squad car. As Brown reached the defendant, his hand came up over defendant's shoulder. Defendant then punched Brown.
Defendant's testimony was similar to that of his wife. Defendant said that when Del Mastro had his hand level with the truck window it looked like Del Mastro intended to hit defendant. Defendant struck first.
Defendant also testified that on his way to the police car, he stopped to talk to his children. Brown approached looking angry. He pointed his hand and then brought his hand up with a closed fist and grazed defendant's shoulder. Defendant said he felt he had to defend himself and punch Brown.
Brown, Del Mastro, and the other eye witnesses testified that neither Brown nor Del Mastro made any threatening gestures toward defendant.
At the instructions conference, the State tendered issues instructions on battery and aggravated battery. These were accepted by defendant without any objection. Defendant tendered an instruction on the justifiable use of force, which was accepted. The issues instructions did not say that the State must ...