dissenting:
I
A
Today, the majority holds that the defendants are entitled to have the jury instructed on justifiable use of force despite defendant Mercado’s concomitant denial of using any force and defendant Rodriguez’s concomitant denial of intentionally using force against the victim. Because I feel that the evidence presented in this case fails to meet the minimal level required to warrant a self-defense or defense of other instruction, I respectfully dissent from the majority’s holding.
Section 7' — 1 of the Criminal Code provides that:
“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another * ° (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 1.)
Self-defense and defense of other, the justifiable use of force defenses, presuppose that the accused committed the act and a defendant invokes either defense as a justification for the act. (People v. Hawkins (1980), 88 Ill. App. 3d 178, 410 N.E.2d 309; see also People v. Smith (1912), 254 Ill. 167, 98 N.E. 281; People v. Lahori (1973), 13 Ill. App. 3d 572, 300 N.E.2d 761.)1 The cases cited by the majority support this basic premise. In each, the defendant involved admitted committing the act and invoked the defense as justification for the act. See, e.g., People v. Woodward (1979), 77 Ill. App. 3d 352, 395 N.E.2d 1203; People v. Harris (1976), 39 Ill. App. 3d 805, 350 N.E.2d 850.
People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31, also relied upon by the majority, holds that a defendant is not entitled to a self-defense instruction, even where he admits committing the act, unless there is “some evidence” of self-defense presented at trial. In Bratcher, the defendant testified that police officers twice shoved him before he struck one of them. The defendant asserted that he was not placed in fear by the officer’s actions but that he was surprised and angry “[a]nd, [in] an automatic reaction to the officer’s touch * * *, [h]e struck out.” (63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) The Illinois Supreme Court noted that defendant’s comment to a police officer that he thought the police officers would whip him was insufficient to warrant submitting the issue of self-defense to the jury, “[especially in light of the defendant’s own testimony which reveal[ed] a clearly opposite motivation for his action.” (63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) The Bratcher court held that the evidence presented was insufficient to reach the minimal level of evidence required to warrant a self-defense instruction. To hold otherwise, the court stated, would allow a defendant to demand unlimited instructions based upon the “[m]erest factual reference or witness’ comment.” 63 Ill. 2d 534, 541, 349 N.E.2d 31, 34.
As in Bratcher, the evidence presented in this case is insufficient to meet the minimal level required to warrant a self-defense or defense of other instruction. Defendant Mercado testified that at no time did he use any force against the victim. He also asserted that he was angry with the victim prior to confronting him in the gas station. If, as defendant Mercado asserted at trial, he never used any force against the victim, then it follows that he could not have reasonably believed that force was necessary to prevent harm to himself. If defendant Mercado believed force was necessary to protect himself, he necessarily would have used it against the victim. It is illogical to claim self-defense when no act of self-defense was committed. Since defendant Mercado denied committing the act, and the State’s evidence did not show that defendant acted in self-defense, the trial court properly refused defendant Mercado’s self-defense instruction. People v. Hawkins.
Similarly, defendant Rodriguez’s testimony failed to meet the minimal level required to warrant a justifiable use of force instruction. Rodriguez first asserted that he never hit the victim with anything, but later, he testified that he hit the victim with an oil spout to prevent the victim from harming Mercado. He further stated that he did not intend to hurt the victim when he threw the oil spout. Since defendant Rodriguez did not intend to use force likely to cause death or great bodily harm, as defined in section 7 — 1 of the Criminal Code, he could not have reasonably believed that such force was necessary or justified to defend Mercado in view of the fact that admittedly he did not use that force. “By its very nature, self-defense [and defense of other], whether reasonable or not, relates to the intentional or knowing use of force and not to an accidental” use of force. (Emphasis added.) (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 893, 420 N.E.2d 461, 467.) To invoke the defense, the defendant must have acted intentionally. Where as here, defendant Rodriguez did not act intentionally and the State’s witnesses did not present “some evidence” of acting in defense of others (People v. Bratcher), the minimal level of evidence was not met and the trial court properly refused the justifiable use of force instruction. Accordingly, I would affirm the trial court’s ruling.
B
The majority also holds that the State did not meet its burden of establishing that Mercado knowingly and intelligently waived his Miranda rights prior to introducing in the State’s case-in-chief Mercado’s statement that the victim “should die.” Implicit in this holding is the recognition that the State did establish that Mercado was apprised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.1 agree that the evidence shows Mercado was informed of his Miranda rights, and Mercado’s extensive history with the criminal justice system tends to indicate that he was familiar with these rights and understood them.
Although it appears that the record does not sufficiently show that the State met its heavy burden of demonstrating that the defendant knowingly and intelligently waived his privilege against self-incrimination (Miranda v. Arizona; People v. Washington (1977), 68 Ill. 2d 186, 369 N.E.2d 57), in my view, the introduction of Mercado’s statement, if error, was harmless error beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Both the victim and a disinterested eyewitness testified that Mercado brutally beat the victim. The physician who treated the victim testified that the victim’s injuries were inflicted in a manner consistent with the testimony of the victim and the eyewitness. Given this evidence, and the fact that Mercado’s statement was not inconsistent with his explanation of what occurred, I am able to conclude beyond a reasonable doubt that the use of Mercado’s statement at trial did not contribute to his conviction. (See People v. Anthony (1976), 38 Ill. App. 3d 427, 347 N.E.2d 770; compare People v. Washington (1977), 68 Ill. 2d 186, 369 N.E.2d 57 (eyewitnesses were unable to identify defendant at a lineup).) Since any error resulting from the introduction of Mercado’s statement was harmless beyond a reasonable doubt, I would not reverse the jury’s determination of guilt.
In view of my decision to affirm the convictions and not reverse and remand for a new trial, it is necessary for me to address certain of defendants’ additional contentions which have not been disposed of by the majority.
II
Defendants contend that the State exercised its peremptory challenges to systematically exclude Blacks from the jury. To sustain a challenge to an array, defendants’ motion to discharge the jury must state facts which show the jury panel was improperly selected or drawn. (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 3(b).) Defendants’ motion, in a conclusionary manner, merely stated that the State exercised its peremptory challenges to systematically exclude Blacks from the jury. This bare assertion fails to show purposeful exclusion and, since by agreement, the voir dire was unreported, I am unable to determine how many challenges, in fact, were exercised to exclude Blacks and what evidence, if any, discloses the accuracy of defendants’ charge. (People v. Bracey (1981), 93 Ill. App. 3d 864; People v. Fleming (1980), 91 Ill. App. 3d 99.) In both these cases, this court emphasized the importance of preserving a record of voir dire.
Lacking an appropriate record, I find myself without an evidentiary basis upon which to review the trial court’s ruling. At most, the record contains conflicting statements by the court and counsel for defendants as to how many Blacks were excluded from the venire. Whatever the exclusion, I am unable to determine whether this exclusion was purposefully discriminatory, and consequently I would find the defendants’ contention is without support. People v. Bracey; People v. Fleming.
III
Defendants also contend that their convictions for aggravated battery must be vacated because the trial court ruled that defendants’ aggravated battery convictions merged with their attempt murder convictions. I agree that the aggravated battery convictions should be vacated because these convictions are predicated on the same conduct underlying the attempt murder convictions. See People v. Williams (1978), 62 Ill. App. 3d 966, 379 N.E.2d 1268; People v. Washington (1978), 60 Ill. App. 3d 662, 377 N.E.2d 397.
Accordingly, I would affirm the defendants’ attempt murder convictions and sentences and remand the cause to the trial court to vacate the aggravated battery convictions.
The Random House Dictionary of The English Language defines self-defense as “A claim or plea that the use of force or injury or killing another was necessary in defending one’s own person from physical attack.” (The Random House Dictionary of the English Language 1293 (unabridged ed. 1966).) Black’s Law Dictionary defines the defense as an “excuse for the use of force in resisting an attack on the person ° 1**4 Black’s Law Dictionary 1525 (4th ed. 1968).