APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 1, 1981.
Rafael Baes was indicted by a grand jury for two counts of armed violence and two counts of aggravated battery. Upon a plea of not guilty, he was tried by a petit jury in the Circuit Court of Will County. That jury found Baes guilty of one count each of armed violence and aggravated battery, but was unable to reach a verdict on the remaining two counts. It was the sentencing of the defendant that provides the issues for this appeal.
A brief recital of facts is helpful to understand the issues raised. On December 8, 1978, the defendant was in the parking lot of the Old Chicago Amusement Park. He was approached by two men, Gregory King and Jeffrey Conrad. King accused the defendant of beating him with a baseball bat several weeks earlier at the same location. At this time the defendant, perhaps because of taunts or provocation from King, lunged at King with a knife 4 1/2 inches in length, stabbing King in the side. As King retreated, Conrad came to his defense and grabbed Baes from behind. The defendant then swung at Conrad with the same knife, again causing injury. The wounds of both King and Conrad required stitches.
At the trial of the defendant, some time after the jury had retired to reach its verdict, the jury sent a note to the court asking: "What is the lesser charge between armed violence and aggravated battery and why?" In a conference with the defendant's attorney and the prosecutor, the trial judge indicated that he believed it inappropriate to answer the jury's query. He reasoned that the jury's function was to decide questions of fact, i.e., were all elements of the offense proved. Whether the offenses proved were classified by the legislature as more or less serious breaches of the criminal code is not pertinent to the jury's inquiry. The trial judge gave counsel an opportunity to present contrary authority, and when none was presented, he refused to answer the jury's question.
The trial judge then responded to the foreman's oral question concerning whether the jury could find the defendant guilty of one charge and not the other. That response informed the jurors that they should read the instructions on the eight verdict forms and answer each guilty or not guilty based upon their conclusion as to the facts.
When the jury finally reported back to the court, the 12 had been unable to agree as to the two counts stemming from the injury to King, but the jurors found the defendant guilty of armed violence and aggravated battery for the stabbing of Conrad.
At the sentencing hearing, the prosecutor recommended the minimum sentence for Baes, and stated that it was unfortunate that the defendant was facing a mandatory minimum sentence of six years. Further, the People's attorney stated that the inquiries from the jury suggested that the 12 perceived certain mitigating factors present here which recommended a conviction of a lesser offense.
The trial judge stated for the record that he felt the minimum sentence mandated by the statute was too severe for the facts of the case before him; however, the judge felt he lacked authority to second-guess the legislature on matters of sentencing. He further stated that he hoped the defendant's sentence could be reversed by the appellate process, and if not, that executive clemency would be considered. We are now presented with the question of whether we can do what the trial court felt it could not.
Three separate offenses are pertinent to the discussion which follows. The first is battery:
"A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." (Ill. Rev. Stat. 1979, ch. 38, par. 12-3(a).)
Battery is a Class A misdemeanor. The second crime subject to this discussion is aggravated battery:
"A person who, in committing a battery, commits aggravated battery if he * * * (1) [u]ses a deadly weapon * * *." (Ill. Rev. ...