*1 72, 504; Bradley Sanitary Metropolitan NE2d Chicago, 482, Dist. of App2d Greater 56 Ill 206 NE2d 276. helpful We believe neither of these cases position defendants’ here. appeal

No notice of from the final has post-trial ever been filed. No motion has ever been filed. The notice appeal expressly purports which filed appeal appealable. from an order which is not Much doing so, therefore, as we dislike compelled we feel appeal. this dismiss

Appeal dismissed. MCCORMICK, DRUCKER, J., P. J. and concur. - City Macomb, Municipal Corporation, Plaintiff

Appellee, Gould, Defendant-Appellant. v. Oren A.

Gen. No. 68-7. Third Judicial District.

January 9, 1969. *2 Harris, Macomb, appellant. & of for Harris Macomb, Dye, appellee. for Flack & of SCHEINEMAN, J. violating city guilty found of a

The was fighting prohibiting and a fine of ordinance was assessed contending appeals, not sufficient He the evidence is $10. guilty beyond required prove him a reasonable doubt as to present Code of Procedure. our Criminal in night high at at a football The occasion was school teaching and game. on the staff The defendant was duty keeping charged of the crowd at the time with playing away and the the fence between stands from 362 15-year-old boy proceeded He a several field. to strike brought charge. times, He defends on the on this which ground enforcing only discipline, he that right corporal punishment. a he had the use teacher right no of a teacher We have doubt of enforcing process of corporal punishment in the inflict App 270; discipline. People, Ill Drake v. Fox 57, Thomas, App 899. The cases Ill 33 NE2d same wantonly right. may not limit of He state the guilty may maliciously corporal punishment and be inflict battery done he he has so if does so. Whether method the unreasonableness of the be inferred from adopted employed the circumstances. or the force under requiring presents This fact reference a evidence. Daniels, complaining witness, Mike testified

shortly player in- before the half-time intermission *3 jured a He and was carried from the field on stretcher. just put was was near the fence below where Mike down sitting. Mike, others, and a of went to the number something the in- of fence to learn about the seriousness along juries. defendant came and ordered them back The back, to their Mike the seats. testifies crowd started go back, hold took and he turned to the defendant as hitting around, him him, him and on the of turned started fist, face, continued flat of his with his then with the first (later campus police- a Another man identified as hand. stopped man) him defendant and stepped between and any striking. not in of the classes Mike he the stated was recognized and taught by defendant but he the defendant groaned obey him, little he a turned and that he to say anything. did turned but not on the a red mark side with the fist caused The blow overnight to a small he diminished his face which said of any injuries. claiming he was not serious so that bruise using striking denied a but admitted some The defendant He thought turning go fist. asserted that he Mike was to hack to the fence when he turned Mike He testi- around. “Ah, fied Mike said Gould.” other teachers had Some part striking agreed it, seen minimized but and one entirely with the defendant there no with blow was a fist. police striking going officer saw was the when it it, stepped stop

on and he in to testified could not see but whether not blow a fist. was with complaining witness, In addition the there were five counting prosecution testified, other witnesses who not policeman. preliminaries the One had the but not seen up looked in time to see defendant strike a blow with fist, persons his so there were who at least six testified to agreed fist, one and them that Mike blow with five of walking away him or the defendant turned was when begin striking him around him on the twirled face. obeying orders, Mike and If it is believed that walking around, away turned him when any kind? any justification physical acts there for striking Furthermore, justified in is a teacher ever ? pupil face of a the fist with Granting a enforce disci teacher by punishing paddle, a would pline with a switch or we regard clubbing malicious and unrea over the head as force, where is two extremes between these sonable but line between what reasonable to be drawn circum that under the ? We conclude what is malicious by witnesses, there was a number of as attested stances by the trier resolved of fact be presented credibility fact, have to consider the who would also *4 decide what facts were and to of the various witnesses the province to actually proved. not override It is our reading our of a respects on these based of fact in trier transcript. ordered the court also asserted because

Error was testimony by Director Athletics the certain stricken testimony injuries Mike’s minor. were This that striking merely it not a reversible cumulative and affirmed. error. The is Judgment affirmed.

ALLOY, J.,P. concurs.

Dissenting Opinion STOUDER, J. agree majority opinion. the

I cannot with the Under majority upon relied in the in cases decided Illinois quite A teacher not opinion law of Illinois clear. the is right duty discipline only children the but the has tutelage. to the do tantamount Failure to this is under his perform function, that of teach- of a teacher to his failure discipline ing. must The criteria are that the established excessively by not be or actuated malice and must not be conflicting wantonly spite evi- administered. In the dence, is no conflict in the fact that there being thought and rebellious the child was disobedient lacking steps him. Evidence is from and took to correct mali- defendant acted which it be inferred that the wantonly. only question it ciously as to whether only and the in much force was used is how was excessive or not defendant used point whether evidence on this is not A with a fist does the child. blow his to strike fist slap with necessarily a more violent action than mean majority opinion, suggest, does the hand. To as utterly ignore head, clubbing is to there about majority opinion, question, To the record. does striking justified in face ever a teacher is whether employed only method in pupil of a admittedly province of within the performing a function the teacher. However, here used. the methods

I do not condone methods should say I would not use such because *5 impose quasi-criminal liability on the defendant would be my judgment performance of substitute for his in the recognition his duties. In the absence of uniform acceptable discipline what is and what is not and on the record, basis of this I would reverse Circuit Court. County Mills, Plaintiff-Appellant,

Alvernest Winnebago, Defendant-Appellee.

Gen. No. 68-47. Second District. January 13, 1969.