WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WILBERT F. CROWLEY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Richard Tamborski was indicted for the crime of murder in the criminal court of Cook County. He was tried by jury, found guilty and sentenced to imprisonment in the penitentiary for a term of seventeen years. To review the judgment of conviction, he prosecutes the present writ of error.
The only error assigned is that the trial court erred in failing to discharge defendant for want of prosecution pursuant to section 18 of division XIII of the Criminal Code (Ill. Rev. Stat. 1951, chap. 38, par. 748,) which provides as follows: "Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. If any such person shall have been admitted to bail for an alleged offense, other than a capital offense, he shall be entitled, on demand, to be tried within four months after such demand: Provided, that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty (60) days."
Three separate motions for discharge were made by defendant in the trial court, each of which was denied. A proper understanding of the issues involved in these motions will be aided by a complete statement of the material facts, which are as follows:
June 25, 1949 Armed robbery of Brink's truck resulting in killing of Joseph Kozoil and Joseph Den.
August 19, 1949 Defendant surrendered to Federal Bureau of Investigation in Alaska and was returned to Chicago.
September 2, 1949 Defendant committed to county jail without bail by municipal court on charge of murder of Joseph Den.
September 16, 1949 Three indictments returned. No. 49-1746 charged defendant jointly with Joseph Jakalski, James Hoyland, and David Edgerly with the murder of Joseph Den. No. 49-1747 charged defendant jointly with the same persons with murder of Joseph Kozoil. No. 49-1748 charged defendant jointly with the same persons with robbery.
September 21, 1949 Municipal court complaint dismissed.
September 23, 1949 Defendant arraigned and pleaded not guilty to all indictments.
October 20, 1949 Defendant filed motion for severance. Jakalski filed motion for severance.
October 24, 1949 Tamborski and Jakalski granted severance from other defendants, but denied severance from each other.
November 25, 1949 Tamborski moved for severance from Jakalski on No. 49-1746. Motion denied. Counsel for Jakalski moved for a continuance. Hearing on this motion continued until November 28, 1949. State's Attorney stated to court that he was having trouble locating a witness and that therefore he was a agreeable to a continuance. The court remarked, "If it goes over, it will have to go over until after the first of the year," to which the State's Attorney replied, "That is what I would have to ask for, too."
November 28, 1949 Defendant demanded trial. The motion of counsel for Jakalski for a continuance was allowed and the cause as to each defendant was continued to January 9, 1950.
January 9, 1950 First motion by defendant for discharge under section 748 of Criminal Code, commonly referred to as the "four-month statute." (Judge Klarkowski presiding.) Defendant alleged confinement on charge of murder of Joseph Den since September 2, 1949, the date on which he was committed by municipal court, and further alleged that at no time did he seek to delay trial. The motion was denied upon the grounds that the continuance of November 28 was to enable the State to procure evidence, and since the continuance was for less than sixty days, it was within the proviso of the statute.
January 11, 1950 February 10, 1950 Defendant and Jakalski were tried under indictment 49-1747 for Kozoil ...