People v. Cohen
| Decision Date | 24 March 1949 |
| Docket Number | No. 30847.,30847. |
| Citation | 402 Ill. 574,85 N.E.2d 19 |
| Parties | PEOPLE v. COHEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Elmer J. Schnackenberg, judge.
Al Cohen was convicted of armed robbery and he brings error.
Reversed and remanded.
Al Cohen, pro se.
George F. Barrett, Atty. Gen. and John S. Boyle, State's Atty., of Chicago (John T. Gallagher, W. S. Miroslawski, Arthur F. Manning, and Melvin S. Rembe, all of Chicago, of counsel), for the People.
Plaintiff in error, Al Cohen, hereinafter called the defendant, was indicted in the criminal court of Cook County for the crime of armed robbery. He entered a plea of not guilty, was tried before a jury, and at the close of all the evidence was found guilty as charged in the indictment. Motions for a new trial and in arrest of judgment having been overruled, judgment was entered on the verdict and defendant was sentenced to the penitentiary for a term of not less than three nor more than eight years.
Defendant contends the court erred in overruling his motion for substitution of counsel and in denying his motion for a change of venue. The record discloses that on February 18, 1947, defendant entered his plea of not guilty and the cause was continued to February 21, 1947. On that date the cause was further continued to March 7, 1947, on which date the court of its own motion appointed the public defender as counsel and continued the cause to April 24, 1947. Before the cause was called for trial the court permitted the public defender to withdraw as counsel and appointed attorney Drennan J. Slater. On April 11, 1947, the court vacated the order appointing Slater and appointed Robert J. Rafferty as counsel. On April 18, 1947, the cause was again continued until May 14, 1947, on which date the defendant appeared with one Jefferson Schultze, an attorney, and a motion was presented that he be substituted as counsel for the defendant. This motion was overruled and thereupon a motion for change of venue from the judge was made, this motion being accompanied by affidavits of defendant and Schultze. It was alleged in the motion, which was overruled, that the trial judge was so prejudiced against the defendant that he could not receive a fair and impartial trial. It was after this motion was overruled and the cause proceeded to trial that the defendant was convicted and sentenced, the jury finding the age of the defendant to be 18 years.
It is not contended that defendant was not represented by counsel and there is no showing of any specific objection to the counsel appointed, but defendant seriously contends that even though he was represented by appointed counsel, the court erred in denying his motion for the substitution of attorney Schultze, who he claims was selected and retained by him. The People contend that as the court overruled the motion for substitution, and there being no objection or exception thereto made and no bill of exceptions filed, the motion for appointment of counsel did not become a part of the record by inclusion therein by the clerk and by the clerk's certificate, because the motion for appointment of counsel and objections and exceptions to the ruling thereon must be a part of the bill of exceptions. People v. Lehner, 326 Ill. 216, 157 N.E. 211. In the Lehner case a motion accompanied by an affidavit was made for the appointment of special counsel to assist the State's Attorney. No constitutional question was raised and no question of a defendant's right to counsel of his own choice. The crucial question in the instant case is, whether, after the court has appointed counsel of its own motion, a defendant may reject that counsel and substitute his own. We do not find the cases of People v. Witt, 394 Ill. 405, 68 N.E.2d 731, and People v. Montville, 393 Ill. 590, 66 N.E.2d 861, cited by the People, much assistance in determining the question here. In these cases the question was presented whether it was error to appoint counsel when such appointment was not requested or objected to. The record here discloses that the public defender was appointed to defend on the court's own motion and after his withdrawal two other attorneys successively were appointed to defend the defendant. The record does not disclose that the above attorneys were requested by the defendant, nor does it appear that inquiry was made by the court as to whether defendant was able to, or desired to, employ his own counsel. On the particular day of the trial the defendant appeared with attorney Jefferson Schultze, who presented a motion to be substituted as counsel for the defendant. Thus it appears for the first time that defendant desired to assert his right to choose his own counsel.
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...v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; People v. Green (1969), 42 Ill.2d 555, 248 N.E.2d 116; People v. Cohen (1949), 402 Ill. 574, 85 N.E.2d 19.) However, "it is likewise true that such right may not be employed as a weapon to indefinitely thwart the administration of j......
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