{
  "id": 5577847,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE E. CLARK, Defendant-Appellant",
  "name_abbreviation": "People v. Clark",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE E. CLARK, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE KUNCE\ndelivered the opinion of the court:\nDefendant-appellant Jackie Clark was convicted of aggravated battery after a bench trial in the Circuit Court of Perry County. The only issue which we need resolve on this appeal is whether the battery, which admittedly occurred, took place \u201con or about a public way\u201d within the meaning of section 12 \u2014 4(b)(8) of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 4(b)(8)).\nThe evidence at trial revealed that the battery took place some 95 to 100 feet from Illinois Highway 152 about three-tenths of a mile outside of DuQuoin, on a dirt lane referred to by witnesses as a \u201cturnaround.\u201d Although the record is not definite on this point, it appears that the turnaround was located on private property. According to witnesses, the turnaround is a dirt lane approximately 200 feet in diameter used to reverse direction on Highway 152 and to park one\u2019s vehicle while fishing in a nearby strip pit. The turnaround is neither well marked nor well traveled.\nThe victim of the battery testified that on the night of October 10, 1977, the defendant invited him to take a ride in his recently acquired pickup truck. After they reached the turnaround, the defendant parked and started an argument about $20 which the victim had taken from the defendant some months previously. Without provocation, the defendant hit the victim above his left eye with a wine bottle. The resulting cut in the victim\u2019s eyebrow was cleaned at a hospital, but no stitches were required. The evidence indicated that the highway was visible from the place where the pickup truck was parked during the daytime but not at night: After he was hit, the victim ran across the highway and hid until his assailant had left.\nIn finding the defendant guilty of aggravated battery under section 12 \u2014 4(b)(8), the court below based its conclusion on the facts that \u201cthe battery was committed on this looping road and from 95 to 100 feet off the paved portion where the loop enters and exits on the public highway\u201d and that \u201cthe victim, when he was able to extricate himself from the situation, did flee across the public highway.\u201d The defendant was sentenced to one to three years imprisonment, plus a $200 fine and court costs.\nThe defendant argues on appeal that a conviction of aggravated battery on the basis of the facts and circumstances in evidence here is inconsistent with the legislative purpose behind the statute at issue. We agree.\nWe have found no cases construing the phrase \u201con or about a public way\u201d as used in this statute. Two decisions, one emanating from this court and one from the Appellate Court for the Fourth District, have speculated as to the legislative purpose underlying the statute. In rejecting a claim that the statute in question was unconstitutional, the court in People v. Cole (4th Dist. 1977), 47 Ill. App. 3d 775, 362 N.E.2d 432, stated:\n\u201cThe statute might have been intended to remedy the deteriorating condition of public safety on the streets, thereby calming the widespread reticence of citizens who fear travel beyond their immediate neighborhoods. The statute might also have been intended to preserve public order in the tumultuous times through which we have been passing since the early 1960\u2019s.\u201d (47 Ill. App. 3d 775, 780, 362 N.E.2d 435.)\nDissenting in People v. Lockwood (5th Dist. 1976), 37 Ill. App. 3d 502, 346 N.E.2d 404, Justice George J. Moran would have decided the issue of the constitutionality of the statute even though it was not raised by the parties. He stated in part:\n\u201cIn my opinion, the fortuitous circumstances of being located upon a public way at the instant a simple battery occurs does not warrant the transformation of the same act from a simple battery classified as a Class A misdemeanor * \u00ae \u00ae to an aggravated battery classified as a Class 3 felony.* * *\nThe purpose of this statute, as explained in the S.H.A. Committee Comments, is to increase the penalty for a battery committed under aggravated circumstances, circumstances under which \u2018great harm might and usually does result.\u2019 The rationale seems to be that a battery which occurs on a public way in some manner poses a more serious threat to society than one which takes place on privately owned property.\u201d \u201d \u201d\nNo doubt, the intent of the legislature in defining the presence upon a public way as an aggravated circumstance was to protect an innocent member of the public who might also be situated upon the public way and thus be endangered by a battery committed in close proximity to his person. However, as it now stands, this section would include a number of situations clearly not intended to be aggravated crimes. \u201d * \u201d\u201d 37 Ill. App. 3d 502, 509-11, 346 N.E.2d 409-10.\nAlthough we need not, and therefore do not, decide the constitutional issue raised in the instant case, we hold that the purview of the statute cannot be extended to cover a situation such as that revealed on this record. The phrase \u201con or about\u201d is used in reciting the location of an occurrence \u201cto escape the necessity of being bound by the statement of an exact \u201d \u201d \u201d place.\u201d (67 C.J.S. 866 (1978).) The word \u201cabout,\u201d used in describing a location, has been judicially defined to mean reasonably nearby or convenient of access. (1 C.J.S. 344 (1936).) We hold that the incident involved in the instant case, which occurred some 95 to 100 feet from the public way, did not occur \u201con or about a public way.\u201d\nAlthough defendant was not proved to have committed aggravated battery, the trial court found and we conclude that defendant was proved guilty, beyond a reasonable doubt, of \u201csimple\u201d or \u201cplain\u201d battery, which is a violation of section 12 \u2014 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12 \u2014 3). Battery is a lesser-included offense to the offense of aggravated battery. (People v. Cole (4th Dist. 1977), 47 Ill. App. 3d 775, 362 N.E.2d 432.) Supreme Court Rule 615(b)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(b)(3)) permits a reviewing court to reduce the degree of the offense of which the appellant was convicted, as in this case when a lesser-included offense was proved. (See People v. Towers (1st Dist. 1974), 17 Ill. App. 3d 467, 308 N.E.2d 223, voluntary manslaughter reduced to involuntary manslaughter; People v. Oliver (1st Dist. 1976), 38 Ill. App. 3d 166, 347 N.E.2d 865, deviate sexual assault reduced to attempt deviate sexual assault; People v. Taylor (1st Dist. 1972), 3 Ill. App. 3d 313, 278 N.E.2d 469, armed robbery reduced to robbery; and People v. Cunitz (5th Dist. 1977), 45 Ill. App. 3d 165, 359 N.E.2d 1070, felony theft reduced to misdemeanor theft.) Accordingly, we exercise our power under Supreme Court Rule 615(b)(3) and reduce the degree of the offense for which defendant was convicted from aggravated battery to battery and remand this case to the Circuit Court of Perry County for sentencing on the modified judgment of battery.\nAffirmed as modified and remanded with directions.\nKARNS and JONES, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE KUNCE"
      }
    ],
    "attorneys": [
      "Richard J. Wilson and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Lloyd Middleton, State\u2019s Attorney, of Pinckneyville (Raymond F. Buckley, Jr., and William S. Zale, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE E. CLARK, Defendant-Appellant.\nFifth District\nNo. 78-97\nOpinion filed April 10, 1979.\nRichard J. Wilson and Jeffrey D. Foust, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLloyd Middleton, State\u2019s Attorney, of Pinckneyville (Raymond F. Buckley, Jr., and William S. Zale, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People."
  },
  "file_name": "0698-01",
  "first_page_order": 720,
  "last_page_order": 723
}