People v. Shadowens
| Citation | 10 Ill.App.3d 450,294 N.E.2d 107 |
| Decision Date | 16 March 1973 |
| Docket Number | No. 72--174,72--174 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry SHADOWENS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Kenneth L. Jones, District Defender, Illinois Defender Project, Mount Vernon, for defendant-appellant.
Kenneth Powless, State's Atty., Snyder Howell, Asst. State's Atty., Marion, for plaintiff-appellee.
This is an appeal from an order of the circuit court of Williamson County revoking appellant's probation and imposing a sentence of one to three years' imprisonment. Appellant Larry Shadowens pleaded guilty to aggravated assault and was placed on probation for two years under the conditions of chapter 38, section 117--2(a)(1--4), Illinois Revised Statutes, including the provision against further violation of the law. Four months later a petition for revocation of probation was filed, alleging the commission of a second aggravated assault. A hearing was conducted at which facts indicating two incidents of assault were presented. In the first incident the complaining witness, Marvin Chamness, and one Norma Headrick Leonard appeared about 3:30 a.m. at the home of Jerry Nicholson, where her husband, John Leonard, and appellant were staying. Mrs. Leonard demanded that Leonard take her to his house to get clothes allegedly hers. Chamness and Mrs. Leonard were refused entry and asked to leave the premises. The dispute grew more heated, and Mrs. Nicholson handed appellant a shotgun belonging to her husband. When appellant appeared carrying the gun, Chamness and Mrs. Leonard retreated. Leonard claimed to have been too drunk to recall the incidents.
About noon that same day, Chamness appeared at Leonard's house with a man identified only as Tony to retrieve Norma Headrick's car which had stalled there during a previous attempt by her to retrieve her clothes. As chamness approached, he saw Leonard and Shadowens on the front porch of Leonard's house. Chamness claimed that he raised the hood of the car, noticed that the coil wire was missing and looked again toward the porch, at which time he saw both Leonard and Shadowens pointing guns at him. Chamness stated that he was not armed and had to crawl behind the car as Tony drove it down the street until he could safely leave.
Shadowens claimed that upon finding the wire missing Chamness drew a pistol from his pocket. At this, Leonard, still drunk, picked up the shotgun and pointed it at Chamness and Shadowens took the gun away from Leonard to prevent violence. Shadowens stated that he pointed the gun at Chamness only while trying to engage the safety and that Chamness had then retreated. The sole impartial witness, a next-door neighbor, testified that she saw both Shadowens and Chamness with guns but was not sure who had 'drawn' first. She further stated that Chamness quickly returned the gun to his pocket and crawled beside his car until he could stand out of the range of the shotgun. From this testimony, the trial judge found a probation violation and sentenced appellant to one to three years in prison.
Appellant claims that the trial court erred in finding a probation violation from the evidence presented. The State must prove a violation of probation not beyond a reasonable doubt but by a preponderance of the evidence (People v. Crowell, 1 Ill.App.3d 868, 276 N.E.2d 508; People v. Dotson, 111 Ill.App.2d 306, 250 N.E.2d 174). The credibility of witnesses and the weight to be given their evidence are matters for the finder of fact and should not be disturbed except where the evidence is so unsatisfactory as not to sustain the burden of proof (People v. Hampton,44 Ill.2d 41, 253 N.E.2d 385). In the instant case the judge clearly considered all the evidence and made a factual finding that appellant did point the gun at Chamness and was not at all times acting properly within the scope of self-defense and did, in fact, commit an aggravated assault in violation of his probation. The trial judge undoubtedly had the best opportunity to hear the evidence, observe the demeanor of the witnesses, and make the factual determinations. The use of his discretion was not arbitrary here and will not be overturned by this court (People v. Crowell, 1 Ill.App.3d 868, 276 N.E.2d 508).
It is further claimed that the trial judge considered matters which were improper in that appellant had not been notified of...
To continue reading
Request your trial
-
People v. Willett
...of defendant's explanation. People v. Holton, 18 Ill.App.3d 625, 310 N.E.2d 430 (5th Dist. 1974); People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107 (5th Dist. 1973). We cannot say that the judge's determination was against the manifest weight of the evidence and, therefore, must agree ......
-
People v. Haynes
... ... But since the judgment appealed from was imposed the United Code of Corrections (ch. 38, § 1001--1--1 et seq.) has become effective. For the reasons assigned in People v. Shadowens", Fifth District, filed March 16, 1973, Ill.App., 294 N.E.2d 107, (See also People v. Hendrickson, Supra.), the sentences imposed in cases pending on direct appeal subsequent to the effective date of the Code must be adjusted to conform to the sentences in the Code. Under the provisions of ch. 38, \xC2" ... ...
-
People v. White
...in the revocation proceeding itself. Absent such objection in that proceeding, the matter is waived on appeal. People v. Shadowens (1973), 10 Ill.App.3d 450, 294 N.E.2d 107. However, even treating the challenges on their merits, we do not think either can be 1) As to the offense of unlawful......
-
People v. Horton
...a notion rejected by the jury. For the reasons assigned in People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; and People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107, the sentence imposed for the conviction of illegal possession of narcotics must be adjusted to conform to the sentencing pro......