WRIT OF ERROR to the Circuit Court of Lake County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Plaintiff in error, Frank J. Bedard, hereinafter referred to as defendant, brings this writ of error from the circuit court of Lake County where he was found guilty of a felony by the verdict of a jury on an indictment charging him with taking indecent liberties with a child. He was denied probation and on March 17, 1956, he was sentenced to the Illinois State Penitentiary for a term of not less than one nor more than three years.
Among the several errors here assigned, defendant complains that the court failed to summon jurors in the manner provided by the Jury Commissioners Act, erroneously denied defendant's motion to appoint a special bailiff in accordance with section 13 of the Jurors Act, (Ill. Rev. Stat. 1955, chap. 78, par. 13,) and made prejudicial remarks to defendant's counsel, all of which deprived the defendant of a fair and impartial trial.
Without reviewing the unpleasant details of the crime, it is sufficient to state that defendant, a married man 69 years old, is charged with taking indecent liberties with a female child of the age of eleven. Over defendant's objections, an oral confession and a written confession were each introduced into evidence, after a finding by the trial court that they were voluntarily made and were not the product of duress, threat or promises.
Nine errors are assigned and argued by defendant but only one will we consider, as we deem it of controlling importance.
Counsel for defendant argues that this cause should be reversed by reason of the fact that certain jurors sitting in the trial of the case were summoned pursuant to an order of one of the circuit judges by the sheriff of Lake County, as a special venire without complying with the provisions of the Jury Commissioners Act. Counsel for defendant further argues that his client was entitled to the appointment of a special bailiff to summon the jurors and that by reason of these errors, there should be a reversal of this cause.
By first adverting to the case of People v. Siciliano, 4 Ill.2d 581, we can best appreciate the complaint here made. In that case the defendant, Siciliano, was charged with the sale of horsemeat in Lake County. He was represented by the same counsel who appeared for Bedard at this trial and on this writ of error. During the course of the Siciliano trial the regular panel of jurors which reported to hear the case became exhausted by reason of challenges. The trial court, following the provisions of section 13 of the Jurors Act (Ill. Rev. Stat. 1953, chap. 78, par. 13) ordered the sheriff to summon ten additional persons to report as prospective jurors. That section read as follows: "When by reason of challenge in the selection of a jury for the trial of any cause, or by reason of the sudden sickness or absence of any juror for any cause, the regular panel is exhausted, the court may direct the sheriff to summon a sufficient number of persons having the qualifications of jurors to fill the panel for the pending trial, but upon objection by either party to the cause to the sheriff summoning a sufficient number of persons to fill the panel, the court shall appoint a special bailiff to summon such person: * * *." This was first discovered by counsel for Siciliano when examining some of the jurors summoned in the above manner, whereupon he immediately challenged the array of the supplemental panel on the ground that the court should have directed the clerk to draw the names of any additional jurors needed pursuant to sections 8 and 9 of the Jury Commissioners Act. (Ill. Rev. Stat. 1953, chap. 78, pars. 31 and 32.) This court, in sustaining the trial court which denied the challenge, said: "Section 9 of the Jury Commissioners Act, which provides for the manner of summoning jurors if more are needed during the month, was not designed to meet the contingency arising when the regular panel becomes exhausted due to challenges during actual trial, but rather to provide a method of insuring a full panel at the start of any given case, and is comparable in its scope and purpose with section 8 of the Jurors Act. (Ill. Rev. Stat. 1953, chap. 78, par. 8.)"
Let us now consider the difficulties defendant's counsel encountered on his return engagement to the criminal court in Lake County. Bedard's case was set for trial on February 6, 1956, but, due to the State's Attorney being engaged in another trial, was continued to 1:30 P.M. on February 8, 1956. On voir dire examination of the jury by defendant's counsel it was revealed that there were members of the panel not drawn from the jury list prepared by the jury commissioners, but who had instead been ordered to appear for jury service by the sheriff and his deputies.
Counsel for defendant asked the court for permission to inquire of the sheriff as to the procedure followed by him in the selection of jurors. In denying the motion this colloquy ensued:
"Mr. Bellows: May I ask this, your Honor, apparently I am unfamiliar with what the Sheriff did, but am I to assume that the Sheriff of his own accord drew twelve names himself without drawing from the Jury Commissioners list?
The Court: I don't know how they were drawn.
Mr. Bellows: I think, if the court please, I would like to have the Sheriff come in here and disclose how he drew these names.
Mr. Nelson: May it please the Court, I believe that these additional twelve names were drawn in accordance with the Jurors Act. I believe this matter has been adjudicated ...