WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
THOMAS E. KLUCZYNSKI, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The defendant, Thomas Izzo, was indicted in the criminal court of Cook County for the murder of Charles Knierim. A jury found him guilty and fixed his punishment at 99 years' imprisonment in the penitentiary. Judgment was entered on the verdict, and he prosecutes this writ of error.
Defendant's first contention is that his challenge to the array of jurors should have been sustained. When the jurors who were selected for service assembled in the jury room of the Criminal Court Building, Hon. Harold P. O'Connell, one of the judges of the criminal court, addressed them. The defendant contends that the prospective jurors were prejudiced by certain observations made by the judge, and that our decision in People v. Schoos, 399 Ill. 527, requires a reversal.
In his remarks to the jurors Judge O'Connell outlined their duties and responsibilities, and spoke generally about matters they were likely to encounter during their term of service. He emphasized the importance of trial by jury, and urged the jurors to look upon their service as the performance of a civic duty. He pointed out that the judges are the judges of the law, and the jurors the judges of the facts, including the credibility of the witnesses and the weight to be given to their testimony. He explained that although every defendant accused of a crime has a right to be tried by a jury, he also has a right to waive a trial by jury if he so desires, and to be tried by a judge. He described briefly the operation of peremptory challenges and challenges for cause, and indicated to the jurors the kind of cases with which they would probably be concerned.
The jurors were told that they would hear a great deal from lawyers to the effect that "before you can find a defendant guilty you should be satisfied beyond a reasonable doubt of the guilt of the defendant," and that the term "reasonable doubt" does not admit of precise definition. It was pointed out to them that the burden of proof was always upon the prosecution, that the defendant does not have to say anything, and does not have to take the stand. They were also told that at the conclusion of every trial the court would give them instructions as to the law applicable to the particular offense. The judge urged upon the jurors the importance of paying strict attention to the instructions and of attempting to understand them. Sanity hearings were explained in considerable detail.
Because the jurors were told that a defendant in a criminal case has the right to be tried by a jury and also has the right to waive a trial by jury, it is now argued that it was thus indicated to the prospective jurors that a defendant who requested a jury trial was wasting their time. We think that the remarks of the judge do not reasonably admit of this construction.
Judge O'Connell's remarks were made extemporaneously. In explaining to the jury the operation of peremptory challenges and challenges for cause he inadvertently misstated the number of peremptory challenges to which defendants are entitled in certain cases, and in describing the type of cases that the jurors might expect to be concerned with he misstated the definition of a felony. Neither of these misstatements, however, could possibly have prejudiced the defendant.
During the discussion of reasonable doubt the following statement was made: "It is entirely up to you as jurors to be satisfied in your own mind, not absolutely or not conclusively, but beyond a reasonable doubt, that the defendant is guilty." The judge also pointed out to the jury the difficulty of defining the concept of reasonable doubt. Questions subsequently put to the jurors who tried the defendant upon their voir dire examination indicated that they were under no misapprehension because of these remarks. While the judge's statement may not have been technically correct, we do not see how it was harmful to the defendant.
While the comments related to the determination of the sanity of persons charged with crime, no issue of sanity was raised in the trial court and none is suggested here. Under these circumstances, those comments likewise could not have been harmful to the defendant, regardless of their accuracy.
In Peoplle v. Schoos, 399 Ill. 527, a judgment of conviction was set aside because a pamphlet described as a "Jury Primer," prepared by one of the judges of the circuit court of Cook County, had been distributed to the prospective jurors. This court pointed out certain inaccuracies in the content of the pamphlet. It also emphasized the fact that it was prepared by a single judge, and commented upon the possibility that there might be as many different pamphlets as there were judges. In that case the trial judge had urged the jurors to study the pamphlet and had indicated that he might interrogate them as to its contents. In its opinion this court regarded the use there made of the pamphlet as an attempt to establish a new method of selecting jurors and to add new qualifications for them. Those functions it denominated as legislative and not judicial.
In the Schoos case the argument was also made that because jurors were not similarly "indoctrinated" at common law, use of the pamphlet violated the constitutional guaranty that "The right of trial by jury as heretofore enjoyed shall remain inviolate." (Art. II, sec. 5.) The court appears to have rejected this argument, saying: "It does not follow that a pamphlet in the nature of the jury primer used in this case cannot be prepared and employed under any circumstances." (399 Ill. at 536.) As we have elsewhere pointed out, "Under the constitution, there is room for adjustment of details so long as essentials are retained." (Olson v. Chicago Transit Authority, 1 Ill.2d 83, 86.) The use of the term "indoctrinated" instead of some less loaded word does not advance the argument. Common-law trial by jury by no means contemplated jurors that were free to act according to their own conceptions of their proper role.
The practice of the judges of the criminal court of Cook County, of having one of their members explain to the new jurors their duties and responsibilities, is not new. (See, People v. Fisher, 340 Ill. 216, 244 ff.) That practice is a response to a need that has been frequently expressed and frequently acted upon. To meet that need the Judicial Conference of the United States has authorized the publication of a "Handbook for Jurors" serving in the United States District Courts. Oral remarks to prospective jurors and statements in handbooks distributed to them, strikingly similar to the remarks here made, have been held proper. Knight v. State, 50 Ariz. 108, 69 P.2d 569; People v. Lopez, 32 Cal.2d 673, 197 P.2d 757; People v. Cooney, 23 Wn.2d 539, 161 P.2d 442. See, 63 Harv. L. Rev. 139; 38 J. Crim. L. & C. 620.
No litigant has a right, constitutional or otherwise, to have his case tried before ignorant jurors. To acquaint the juror with his duties and responsibilities in a new environment and to increase his understanding of the processes of a trial can hardly be objectionable in itself. There is no way of knowing what misconceptions might exist in the absence of an official explanation. Conscientious judges, however, have been sensitive to the possibility that a pamphlet designed for that purpose may contain misinformation or may minimize the effect of the actual instructions as to the applicable law that are given in the particular case by the trial judge. (See People v. Schoos, 399 Ill. 527; United States v. Gordon, (7 Cir.) 253 F.2d 177.) The possibility of misinformation can be reduced if not eliminated by ...