APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was acquitted of attempt murder, but a verdict could not be reached as to three counts of aggravated battery, and a mistrial was declared as to them. After a second jury trial, he was convicted on each of the aggravated battery counts and sentenced to 2 to 6 years. On appeal from the judgment entered thereon, he contends that (1) his retrial violated the principles of double jeopardy; (2) the proof established that he acted in self-defense; and (3) a wooden board was improperly admitted because it was not shown to be similar to that used by complainant.
At the second trial, Alphonso Redmond testified that he was with a group of persons in front of an abandoned building and that, during an argument with defendant about a girl, defendant said he would cut him (Redmond) before he would allow Redmond to beat him with a 2-by-4 inch board, as he had beaten Freddie Watson; that after arguing for a short while, he (Redmond) turned to enter the building and, as he reached the corner of the building, he "felt like something had hit [him] in [his] back" and he "stumbled around the building, went up in the building [and] got a stick" about 2 to 3 feet long, 1 inch thick, and 3 inches wide; that he went out to where defendant was on the street corner and struck him once across the shoulders and neck — breaking the board, which he then dropped; that defendant turned around and stabbed him in the stomach with a knife; that he grabbed defendant's hand to keep from being stabbed again and tried to get away but was stabbed 11 times before defendant was stopped by Cleven Warfield and others; and that as a result of the stabbing he was hospitalized for 1 1/2 to 2 weeks. He displayed various scars reportedly left by the wounds.
Cleven Warfield testified that he was one of those at the abandoned building when Redmond began talking to defendant; that he did not understand what was said but saw Redmond turn away from defendant, who had a knife in his hand; that he saw defendant stab Redmond, who stumbled into the doorway of the abandoned building; that while he did not actually see the knife strike Redmond's back, he knew it was a stabbing because he observed a cut and a 5- to 6-inch tear in Redmond's shirt; that Redmond emerged carrying a stick about 3 1/2 feet long with which he struck defendant once or twice and then dropped it after it broke; and that he (Warfield) grabbed defendant to stop further cutting of Redmond.
Henry Baker testified that he was a short distance from the abandoned building and saw defendant, Redmond, and Warfield there; that when Redmond turned to walk away, he saw defendant hit him in the back but did not see a knife at that time; that Redmond went around the corner of the building and returned with a stick about 3 feet long with which he struck defendant across the back; that Redmond dropped the stick when it broke, and then he saw defendant stab Redmond more than once with a knife while Redmond had nothing in his hands; and that Warfield grabbed defendant's hand — after which he broke away and fled.
Officer Wade Crosson testified that after he was arrested and advised of his rights, defendant told him he had argued with Redmond who "had grabbed him around the neck" causing defendant to stab him in self-defense. It was stipulated that Redmond sustained multiple stab wounds, with a total of 13 lacerations — some of which required surgery.
Defendant testified that he was at the abandoned building and, after he told Henry Baker to stay away from his girl, Redmond made a remark which he (defendant) thought to mean Redmond would beat him with a 2-by-4, as he had done to Freddie Watson; that he told Redmond he would cut him if he attempted to do so; that when Redmond grabbed his shirt collar, he pushed him away, and Redmond turned to enter the building; that up to that time, he had not touched or stabbed Redmond; that he then walked to the street corner where, without warning, Redmond hit him twice near the temple, forehead and ear with a rotten 2-by-4; that in their struggle, the board was broken and Redmond hit him with a piece of it; that he cut Redmond with the knife he had taken out after he was struck the second time; that he continued to stab Redmond after he dropped the broken piece of board; that Warfield then grabbed them, but he broke loose and fled; and that though his head was hurting when he was arrested, he did not request medical aid nor tell the police about the board or that Redmond had grabbed him around the neck.
In rebuttal, Larry Baker testified that defendant, in referring to the stabbing, said "something came over me."
Defendant first contends that he could not, consistent with the principles of double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10; Ill. Rev. Stat. 1979, ch. 38, par. 3-4(b)), be retried for the aggravated batteries after the jury acquitted him of attempt murder and was unable to reach a verdict on those counts. Defendant was charged with the attempted murder of Redmond by stabbing him with a knife, and with three counts of aggravated battery based respectively on causing great bodily harm, permanent disfigurement, and use of a deadly weapon. He argues here that those general counts did not adequately apprise the jury either of the location of or the conduct constituting the crimes and thus did not explain which stabbing was connected to the attempt murder count and which to the aggravated battery counts. He maintains that it cannot be ascertained from the general verdict which of the stabbings resulted in acquittal or which could not be agreed upon, and consequently, since aggravated battery is a lesser included offense of attempt murder (People v. Camacho (1979), 71 Ill. App.3d 943, 389 N.E.2d 1213), he was twice tried for at least one of the stabbings for which he had been previously acquitted.
The cases upon which defendant relies in support of his position are unavailing. In People v. Harrison (1946), 395 Ill. 463, 70 N.E.2d 596, cert. denied (1948), 334 U.S. 812, 92 L.Ed. 1744, 68 S.Ct. 1013, after defendant was acquitted of assault with intent to murder, the victim died, and he was then indicted and convicted of murder. Defendant sought to invoke the acquittal of the lesser offense as a bar to prosecution for murder after the victim died. The court held that defendant could not have been charged with murder at the time he was acquitted of assault with intent to murder, as the victim was still alive and that the acquittal was not a bar to subsequent prosecution for murder. Thus, Harrison is inapposite, as defendant here had first been acquitted not of a lesser but of a greater offense, with no verdict having been rendered as to aggravated battery counts and no new element supervening to justify subsequent prosecution for any new offense.
In People v. Dugas (1923), 310 Ill. 291, 141 N.E. 769, defendant was convicted of assault with intent to murder and, while the matter was pending on his motion for new trial, the victim died and defendant was indicted for murder and acquitted. The court held that his motion for new trial on the first conviction should have been granted because the acquittal of murder was in bar of lesser included offenses of which defendant might have been convicted on the murder indictment and growing out of the same transaction. Thus, the acquittal of the murder charge necessarily encompassed the lesser included offense of assault with intent to murder. In the present case, by contrast, defendant was not indicted for aggravated battery for the first time after being acquitted of attempt murder. Had such been the case, under the reasoning of Dugas the acquittal for attempt murder could have been pleaded in bar of prosecution for aggravated battery. The facts of the present case do not, therefore, warrant the application of the rules announced in Harrison and Dugas.
• 1 In general, a conviction on the greater offense of attempt murder does not preclude conviction on the lesser included offense of aggravated battery, for the reason that the greater offense includes the additional element of specific intent to kill. (People v. Todorovic (1977), 53 Ill. App.3d 1, 368 N.E.2d 471.) Thus, an acquittal of attempt murder and a conviction of aggravated battery in the same trial means that the accused was found to have committed such acts but lacked specific intent. People v. Hancock (1980), 83 Ill. App.3d 700, 404 N.E.2d 914.
Bearing the above principles in mind, we think the present case is governed by People v. Jenkins (1976), 41 Ill. App.3d 392, 354 N.E.2d 139, where defendant was indicted on one count of attempt murder and two counts of aggravated battery. She was acquitted of the attempt murder charge, but when no verdict could be reached as to aggravated battery, a mistrial was declared and the State subsequently sought to retry her on that offense. Holding that her double jeopardy rights had not been violated, the court stated:
"[T]he section defendant cites [Ill. Rev. Stat. 1973, ch. 38, par. 3-4(b)] prohibiting subsequent prosecution as to crimes which `defendant could have been convicted on the former prosecution' applies to those instances where defendant is charged with only the greater offense and the trier of fact acquits him of that offense, remaining silent as to all lesser included offenses. In such circumstances any doubt concerning what the jury determination might have been, had they considered any of the included ...