People v. Lowe

560 N.E.2d 438, 202 Ill. App. 3d 648, 148 Ill. Dec. 136, 1990 Ill. App. LEXIS 1391
CourtAppellate Court of Illinois
DecidedSeptember 13, 1990
Docket4-89-0970
StatusPublished
Cited by12 cases

This text of 560 N.E.2d 438 (People v. Lowe) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lowe, 560 N.E.2d 438, 202 Ill. App. 3d 648, 148 Ill. Dec. 136, 1990 Ill. App. LEXIS 1391 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in the circuit court of Brown County, defendant John Lowe was convicted of aggravated battery for committing a battery “on or about a public way.” (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(b)(8).) Defendant now appeals, raising constitutional challenges to the phrase “on or about a public way” as used in the statute. We affirm.

On February 27, 1989, Mr. James Assell, while working in his capacity as park superintendent at the Siloam Springs State Park office, noticed the defendant hauling a load of hay which appeared to exceed the maximum weight limit for the park road. Assell left his office and followed defendant down the road to defendant’s farm. Assell parked his truck and walked toward defendant to discuss the weight limitations for the park road. Following a brief conversation regarding the weight limit for the park road, defendant began pushing As-sell. These facts are uncontested by both parties.

On August 11, 1989, a jury trial occurred. Assell testified he parked his truck on the public road before walking toward the defendant. He further testified before he could leave the defendant’s property, defendant began pushing him toward the road and tried to shove him into his truck. The shoving occurred both on defendant’s property near the public road and on the public way as well.

Defendant and his son, Paul Lowe, testified Assell did not park on the public way. Rather, they insisted Assell parked clearly on defendant’s property. They further testified Assell refused to leave defendant’s property when requested to do so, and defendant only pushed Assell in an attempt to remove him from his property. Defendant introduced a photograph into evidence depicting, in his opinion, where the altercation occurred.

Mr. Jesse Smith, Jr., an assistant superintendent in the Brown County highway department, testified the right of way was 40 feet wide. He further testified he was unsure as to the exact demarcation between defendant’s property and the public road.

During closing arguments, defendant argued his use of force was reasonable to remove a trespasser, and the entire episode took place on private property, not a public way. The State argued that although the exact boundary line could not be ascertained, such evidence was unnecessary since the State only had to prove the altercation occurred “on or about a public way.”

Approximately an hour into the deliberations, the jury returned a written question to the court which stated, “What does ‘about’ mean in, on or about public property?” After consulting dictionaries and hearing the arguments from both attorneys on the meaning of the word, the judge decided the proper definition was “in the immediate neighborhood of; near.” Counsel for defendant objected to this definition on the grounds a more accurate definition would be, “immediately adjacent to.” Alternatively, he argued the wording of the statute is unconstitutionally vague. The judge rejected this argument and, in a written response, instructed the jury, “The word ‘about’ means: ‘in the immediate neighborhood of; near.’ ” Shortly thereafter, the jury returned with a verdict finding defendant guilty of the offense of aggravated battery.

On appeal, defendant raises vagueness and overbreadth challenges to the phrase “on or about a public way,” challenges the trial judge’s instructions to the jury, and alternatively argues the State failed to prove him guilty beyond a reasonable doubt.

Defendant’s constitutional challenge to the aggravated battery statute can be broken down into three specific contentions: (1) defendant’s due process rights were violated because the word “about” in the Illinois aggravated battery statute is unconstitutionally vague; (2) defendant’s due process rights were violated because the use of the word “about” deprives him of his right to use justifiable force against trespassers to his real property; and (3) the statute denies defendant his right to equal protection of the laws constitutionally afforded because there is no rational basis for distinguishing between a landowner who removes a trespasser “on or about a public way,” and a landowner who removes a trespasser onto other privately owned property. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2; Ill. Rev. Stat. 1989, ch. 38, pars. 7—3, 12—4(b)(8).

The constitutionality of the Illinois aggravated battery statute has been previously challenged and upheld under both due process and equal protection challenges. (People v. Watson (1987), 118 Ill. 2d 62, 514 N.E.2d 167 (upholding the statute under an equal protection challenge); People v. Handley (1983), 117 Ill. App. 3d 949, 454 N.E.2d 350 (upholding the statute under a due process challenge); People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432 (upholding the statute under both due process and equal protection challenges).) These cases addressed the same issues present here.

This constitutional challenge and its subparts derives from the instruction given by the judge when defining the word “about” at the request of the jury. The issue of the judge’s instruction to the jury, which is discussed under a separate section of this opinion, will be briefly discussed here.

I

After receiving the question from the jury on the meaning of the word “about,” the judge, relying on Wester’s Seventh Collegiate Dictionary, instructed the jury the word “about” means, “ ‘in the immediate neighborhood of; near.’ ” Defendant objected to this instruction as violating his due process rights. Specifically, defendant insists the use of the word “about” in the aggravated battery statute fails to give fair notice of the prohibited conduct. Defendant contends the statute could be interpreted so justifiable use of force in the removal of a trespasser is prohibited when such force spills “on or about a public way.” Defendant also contends a statute this vague allows overly broad prosecutorial discretion. He suggests a more appropriate definition of the word “about” would be: “immediately adjacent to the public way; so close to the public way as to interfere with the public’s travel.”

The State argues the alleged unconstitutionality of the statute has been properly dealt with by the courts and these decisions should be dispositive. (Watson, 118 Ill. 2d 62, 514 N.E.2d 167; Handley, 117 Ill. App. 3d 949, 454 N.E.2d 350; Cole, 47 Ill. App. 3d 775, 362 N.E.2d 432.) The State further contends the wording of the statute is consistent with its legislative intent. Ill. Ann. Stat., ch. 38, par. 12—4, Committee Comments—1961, at 465 (Smith-Hurd 1979).

The aggravated battery statute provides in relevant part:

“(b) A person who, in committing a battery, commits aggravated battery if he either:

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Cite This Page — Counsel Stack

Bluebook (online)
560 N.E.2d 438, 202 Ill. App. 3d 648, 148 Ill. Dec. 136, 1990 Ill. App. LEXIS 1391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lowe-illappct-1990.