People v. Richardson

• Decision Date: 20 May 1965
• Docket Number: No. 38501,38501
• Citation: 32 Ill.2d 497,207 N.E.2d 453
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. John RICHARDSON, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 453

207 N.E.2d 453

32 Ill.2d 497

The PEOPLE of the State of Illinois, Defendant in Error, v. John RICHARDSON, Plaintiff in Error.

No. 38501.

Supreme Court of Illinois.

May 20, 1965.

Charles Locker, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and William J. Nellis, Asst. State's Attys., of counsel), for defendant in error.

UNDERWOOD, Justice.

John Richardson was convicted of the offense of attempt (Ill.Rev.Stat.1963, chap. 38, par. 8-4) in a bench trial in the circuit court of Cook County and sentenced to the Illinois State Penitentiary for a term of 1 to 3 years. He prosecutes this writ of error, contending his constitutional right to a jury trial was not understandingly and knowingly waived, and that the proof failed to establish the material allegations of the indictment or that any crime had in fact been committed.

The common-law record originally filed did not contain a written jury waiver, and defendant argues its absence is corroborative of his contention that he did not knowingly and understandingly waive his right to a jury trial. However, a supplemental record filed by the People does contain a written waiver of jury trial signed by defendant. Additionally, the common-law record states that defendant was fully advised of his right to a jury trial, but that by agreement between the State's Attorney, counsel for defendant and defendant the cause was submitted to the court without a jury. The stenographic transcript reads:

'The Court: Will this be a bench or a jury?

'Mrs. Johnstone (the attorney for defendant): A bench, Your Honor.

'The Court: All right. We will hold it for trial. We will call it again.

'Mrs. Johnstone: Thank you, Your Honor.

'The Court: Take him back. We will call it again.

(Thereupon a short recess was taken, after which the following proceedings were had).

'The Court: All right. Bring out the defendant. (Defendant present before the bar).

'The Court: Have a seat, please.

'Mr. Zimmerman (assistant State's Attorney): Judge, the defendant, Richardson, has executed a jury waiver.

'The Court: All right. Jury waiver.'

Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. (People v. Palmer 27 Ill.2d 311, 313, 189 N.E.2d 265.) Here, the defendant's counsel, directly after stating to the court that there was to be a bench trial, had the opportunity to discuss the merits of this decision with her client during a short recess, after which defendant and his counsel were present in court when the assistnat State's Attorney stated that defendant had executed a jury waiver and the court stated that there was a jury waiver. Moreover, this defendant was no newcomer to criminal proceedings. Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. (People v. Nelson, 17 Ill.2d 509, 511, 162 N.E.2d 390.) While the trial court might well have dwelt at more length on this matter in complying with its duty to insure that the jury waiver was expressly and understandingly made (People v. Surgeon, 15 Ill.2d 236, 154 N.E.2d 253), we believe that this record indicates that defendant understandingly waived his right to trial by jury.

Defendant's argument that the proof failed to establish the material allegations of the indictment or that a crime had in fact been committed requires reference to the indictment, the pertinent portion of which alleges that defendant '* * * with the intent to commit the offense of theft from the person, and to deprive John Overbea permanently of the use and benefit of his property, attempted to obtain unauthorized control over three dollars in United States Currency, the property of said John Overbea'.

John Overbea did not testify. The argument on the People's motion to extend the four-month rule indicates Overbea had been present on some earlier dates to which the cause had been continued, but that he was a 'wino', had moved from his former residence and could not be located. Since the State could give no assurance of his production at a later date, the trial court denied the motion for extension.

The testimony indicates that during the early morning hours of November 12, 1962, defendant, together with Overbea and two Chicago Transit Authority police officers, were the sole occupants of a lighted elevated railway car in the city of Chicago. Charles Burke, one of the policemen, testified that as he sat facing forward at the rear of the car he observed the defendant board the car, stand in the aisle next to the seat on which John Overbea was sleeping, and put his hand into one of Overbea's...