*1 PEOPLE OF THE STATE OF THE DIMOND, JR., Defendant-Appellant.
LAWRENCE E. Third District No. 7, 1977.
Opinion filed December concurring. J., specially Pelletier, Appellate Defender’s Agostinelli Michael both of State J. Office, Ottawa, Henderson, Hinterlong (James E. D. of Macomb
William Breslin, for the X. both of Illinois State’s John thе court: ALLOY Mr. PRESIDING delivered Dimond, a conviction of Jr., appeals E. Defendant Lawrence County entered battery which was tо be trial, in following Circuit Court prison to a term sentenced guilty of such crime. Defendant Dimond was of 3 to 9 (1) his court, argues that Dimond аppeal in this sufficient supported was not offense, (2) the harm, element of the trial court is excessive. imposed by 1975, 24, in this сause that on November appears from the record the offense of charged by information
defendant Dimond was Criminal 4(b)(6) section aggravated battery in violation of 12 — 38, (Ill. 4(b)(6)). Code Stat. At trial of this par. Rev. ch. 12 — cause, Perry shop where the incident took the owner drinking working place, together with several friends had been Perry Gale’s car. employee Defendant a friend and occasional mid-afternoon, left, Cale. He then returned came to the about later and begаn schnapps. to consume two fifths of began persons present verbally. abuse Defendant also *2 Holt, Ray Dimond, also, а friend of one attempted to break empty the schnapps police bottles. The called at Gale’s direction. were arrived, When the police had fifths defendant consumed both schnapps in a period slightly more than one hour. The police persuade go officers tried to defendant to outside with them to disturbance, discuss the but to so. Dimond refused do Dimond also officers, refused to hand the a schnapps over to bottle which he held in his times, hand. Defendant Icenogle then struck Officer at least three hand, liquor with the attempted bottle. He apparently also to break the bottle and retain the weapon. broken bottle as a The at officer testified the trial that he was in by stung struck the hand bottle and thаt caused bodily time, him harm. It was during that this period noted defendant stated that attempting he was break the in to kill to bottle order it, the officer with and he made such threat to officer. Defendant was custody by taken into the police. Evidence for rarely defendant that indicated defendant drank and that after the at scuffle acutely be to intoxicated when he hospital. arrived at the The a jury returned verdict of guilty battery. conviction, held, a sentencing hearing was at which the
prosеcution offered no in aggravation, that recommended defendant be sentenced to a term imprisonment 9 years. presentence report showed that had an defendant honorable discharge from the armed services and that hе was but had married no children. He was a student at Western at the time of the University offense. Testimony hearing was heard at the a sentencing from former professor taught who present, a class in which defendant was defendant’s landlord, owner, a restaurant and a classmate of at defendant university, and from defendant himself. At the conclusion of the sentencing hearing, the trial court sentenced defendant years imprisonment.
It is first by contended defendant that for aggravated battery should be reversed for that there was the reason insufficient bodily harm. While defendant had moved for a directed verdict at trial ground bodily оn the that there was no harm officer,
shown to in written present defendant did not this issue his People Guynn v. post-trial (3d 1975), As in 33 Ill. motion. we noted Dist. 736, 737, App. 3d 239: N.E.2d
“It by is clear that must at preserved objection error be either v. (People Long time, proper by filing post-triаl or of a motion 40, 43, Ill. (1968), 39 that if 389) post-trial 2d 233 N.E.2d filed, any motion errors set forth in the motion are deemed (People Pickett be (1973), wаived Ill. 2d N.E.2d 856).” alleged is notable that object failure to either or include the error
post-trial normally appeal. motion could in a result waiver of issue on (People v. Miller (3d 882, 885, 361 373.) N.E.2d While we required are not consider issue raised noted, do find that thе information the instant case alleged bodily officer, that defendant caused harm to the officer stung testified at the trial that he struck was the bottle which his hand and least that at one of the he was he times sustained circumstances, harm. such Under wе conclude that the element sufficiently was established at the and the justified in the aggravated battery conclusion defendant was involving police upon officer. *3 im argues years of also sentence since
prisonment presented, is In view the record excessive. of damage, аs any severe as to cause not such of the harm was nature is years 3 to not record, the sentence of we believe noted from record, intoxication includes which facts justified upon therefore, stated, we harm. For minimal actual 1 tо 3 to a term be reduced imposed should the sentence believe that 727, 333 N.E.2d Thornhill years. People (1st 8. therefore, County, Cirсuit Court judgment affirmed, is battery finding defendant years. in this cause reduced imposed sentence affirmed and guilt of Judgment of 1 to modifiеd to
STOUDER, J., concurs. concurring: specially Mr. JUSTICE I do majority opinion, result reached agree I Although, an issue have decided majority- opinion should agree the not sufficiency concerning The dicta was waived. deems which, certain although binding, сreates precedent, some this to follow. may compelled members of court feel because, dicta, оccasion, have, an issue we discussed remandment, the trial would be better served thought court However, affirms majority in this cаse concerning direction that issue. certainly no There remandment and judgment trial court. is no result, As a I believe give to thе trial reason to direction court. deleted Since it was not unnecessary language should have been deleted. as however, value precedential I limit its attempt hereby choose possible. much as OF
THE PEOPLE OF THE STATE MORRIS, Defendant-Appellant.
MICHAEL E.
Third District No. Opinion 1977. filed Decеmber Meinz, Defender’s Agostinelli Appellate R. State Verlin both of Ottawa, Office, *4 Mihm, Hinterlong, (James E.
Michael M. State’s of Peoria court: Mr. BARRY delivered the Morris, found defendant, Ellis Michael of imprisonment burglary and was sentenced to