*1 permitted temporary restraining expire order under the terms it elevating preliminary injunction. the statute without to a Order was Rights protected. parties prevailed. maintained. of both Justice I in issuing would find that the trial court did not abuse its discretion temporary restraining order. ILLINOIS, Plaintiff-Appellee, v.
THE PEOPLE OF THE STATE OF FINLEY, Defendant-Appellant. MARK R.
Fifth District No. 75-456 Opinion May filed 1977.
EBERSPACHER, J., dissenting. Rosche, Jr., Hillsboro, appellant.
A. Paul of P. Kelly Attorney, (Bruce D. and Keith Long, D. Irish State’s of Hillsboro Dooren, Association, counsel), for the Attorneys Vanden both Illinois of of State’s People. opinion
Mr. of PRESIDING CARTER delivered JUSTICE court: defendant, jury
Mark a conviction of Finley, seeks review of days imprisonment obstructing peace officer the sentence of imposed *250 fine thereon. to submitting the case
Defendant contends court erred claims that the trial court certain He also mitigation. The improperly hearing aggravation conducted shogld him granted is have defendant’s final contention the court probation. occurred on upon was based incident which the conviction Nokomis, dark Shortly Illinois. after city
October in the car a car circle police officer in civilian clothes in an observed unmarked occupants its stop nearby school car came and one of building. The to The officer testified pistol fired small three times outside the window. pursued that he the car and stopped the vehicle front of defendant’s residence which is on a street that parked borders the school. The officer his car behind stopped vehicle. then stepped He of his car and out stood behind the door. The officer identified himself a police officer requested occupants stopped get lay vehicle to out and face down middle the street in headlights front of the officer’s car. defendant,
About car, time who was not an occupant of the approached the officer’s car and stood in front open of the door on the driver’s side. The standing officer was on opened the inside of the door at officer, the time. According to the he asked defendant leave the area and was answered with a statement that he would not move until the officer moved car. The officer once again asked defendant away refused, move and when he the officer struck him the side of the face with a flashlight. The called officer for assistance and defendant and the occupants of the car were taken to the station.
Defendant he yard piece testified that was in the school looking for a his car stopped directly when the officer the vehicle in front of his home. approached Defendant the officer and asked him what he doing step was told yard. into his He did but so then he returned to the officer’s car and again going asked what was on. The struck officer then *3 him with his flashlight. The officer further testified that the defendant’s actions him in making suspects hindered the arrests the of also presented danger a to him. jury
The a verdict of guilty judgment by returned was the entered court.
Defendant was of obstructing peace convicted a officer violation of 1975, 38, section 31—1 of Criminal (Ill. the Code of 1961 Rev. Stat. ch. par. 1). The statute reads as follows: 31 — “Resisting Obstructing or a A who person Peace Officer.
knowingly performance resists or obstructs the one known to person the peace any to be a officer of act within his authorized capacity official a A commits Class misdemeanor.” People v. 595, Raby, In 40 Ill. 2d 240 supreme N.E.2d our court was that it grounds faced with constitutional attack on this statute on the accepted fixed no the guilt. standard for the ascertainment of The court of of in the case observations the Federal District Court Northern Illinois of Landry v. Daley (N.D. Ill. when it stated the 1968), F.Supp. following: “ # ” e of. These terms way ‘Obstruct’ means ‘to be or come the physical act Given a reasonable
imply some or exertion. construction, argument proscribe natural these not mere terms do policeman validity police with or other about the of an arrest an imposes which act physical only some action, proscribe but delay or hinder, interrupt, prevent may impede, which obstacle limp, duties, going such the officer’s of performance the avoid party third aiding a resisting physically or forcefully arrest 392, 399. 2d 40 Ill. arrest.” believed, must have jury the testimony, which officer’s police The the the officer stepped between had defendant indicated that of position that the stated The officer stopped vehicle. occupants the of car) his was in front of (on ground occupants that of the himself and he feared that He stated protection. for own training his police part of his that when He testified fired. of shots safety because his own for nor clearly people, him, see he not of could in front defendant stood moving. delayed was they were He he determine whether or not could gun that had been their occupants his search of the vehicle at a interrupted the officer fired. evidence shows that defendant The weapon. an arrest for delayed a search incident to critical moment and shooting be blank gun later It matters not that the was determined the circumstances and reasonably under pistol. The officer was imposed an the area” presence defendant his and refusal to “clear ample was duties. There officer’s performance obstacle to the jury. of it to the submission justify in this case to given evidence The they was faced with evidence on could base verdict guilty, court say cannot their determination unreasonable.
The defendant contends that three instructions tendered People erroneously given solely were the jury. This contention is based fact that Illinois Pattern instructions not contained Jury given Instructions criminal to be The cites no cases. in support cases contention and does how not demonstrate defendant was prejudiced Supreme in the these 451(a) Stat., 110A, Court (Ill. Rule Rev. IPI par. 451(a)) ch. states that Criminal should used “unless that it instructions be the court determines gives does not accurately state the law.” This rule the trial court discretion given. People to determine such an whether instruction should be Hines, App. 28 Ill. 3d 976. crucial what of a issue is constitutes an obstruction officer
under
31—1
the
People
section
of the Criminal Code. Both the
and
concerning
defendant submitted
issue
the law
instructions
the
and
on
subject,
given by
People
trial
The
which were
the
court.
offered
People Raby,
392,
v.
in
Ill.
pronounced
definitions of obstruction
40
2d
Raby
Defendant specify does not any inaccuracy or other erroneous or misleading matter that challenged was contained in the by instructions him on apppeal. The trial court did not abuse its in giving discretion these
The next contention of error is the to grant court’s refusal probation to Finley. When confronted a application with denial of an probation, reviewing court is limited to determination whether the trial court in fact exercised its discretion or whether it abused its Johnson, (People v. arbitrary discretion an manner. 36 Ill. 122, Saiken, 177; v. App. 3d 343 N.E.2d People Ill. 2d 275 N.E.2d In 381.) this case the probation court considered the report officer’s and defendant, testimony wife, officer, heard from the the arresting sheriff of Montgomery County, probation and the report. officer who the wrote Defendant’s background past and record at were discussed the sentence hearing as was his current situation. The evidence admitted sentencing decision, and hearing report supports trial judge’s he did not abuse his denying probation. discretion in vein,
In a Finley’s similar contention that was the sentence Fox, People excessive 239, 251-52, 269 has no In Ill. merit. 2d N.E.2d 720, 728, sentence, supreme our statutory court said within the excessive, limits but alleged nevertheless to be “should not be disturbed it greatly unless is purpose spirit at variance with the of the law or ** * manifestly in proscriptions excess of the Illinois constitution requires penalties proportioned that all should to be the nature of the offense. The trial normally superior position during court is hearing trial and the in aggravation mitigation a sound to make determination as the punishment imposed to to be than are courts of review.” Accordingly, say we cannot 60 days that the instant sentence of imprisonment and a *250 fine was excessive.
In his brief defendant claims that he was access to the refused presentence report. The clearly record shows that the court offered the report ready to both counsel and if they proceed asked probation sentencing hearing. Counsel for defendant answered affirmative and defendant will not be claim he was now allowed to prejudiced part. on his preparation lack Defendant’s final is an opportunity contention that “he was not afforded regarding mitigation concerning be heard defense aggravation against hearing pursuant him.” The record is clear that was conducted Stat., sentencing (Ill. par. 4—1). statute Rev. ch. Counsel 1005 — made an had his wife probation oral motion for the defendant and sheriff, testify in support prosecution presented of the motion. probation arrest county officer of the and the officer who made the part probation report of the defendant. The of the record. The made *5 delivery its or to report or objected to the at no time sentencing hearing. reasons, Court of the Circuit judgment foregoing
For County is affirmed. Montgomery
Affirmed. J.,
JONES, concurs. EBERSPACHER, dissenting: Mr. JUSTICE plain-clothes officer was that this agree majority I not do Halloween required the circumstances when he reasonably under the street in front of middle of the pranksters to lie face down in the the head struck defendant on nor when the officer headlights of car failed to move flashlight, knocking him when defendant with his down open door. car away from front incarceration, sentence, days which includes
I likewise consider manifestly excess at law and purpose spirit with the variance all requires proscriptions of the Illinois Constitution proportioned the nature of offense. penalties should be ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF HARFLINGER, Defendant-Appellant. ALFRED EARL Fifth No. 76-101 District Opinion May 1977. filed