WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GROVER C. NIEMEYER, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Defendant, William Benson, Jr., was found guilty of murder after a jury trial in the criminal court of Cook County and was sentenced to the penitentiary for a term of 25 years. He prosecutes this writ of error and contends initially that the trial court erred in denying a timely motion for discharge for want of speedy prosecution.
The record reveals that defendant was arrested January 11, 1958, and remained continuously in custody without being admitted to bail until his trial on June 17, 1958, a period in excess of five months. The chronological order of events occurring during the interim is as follows:
January 14 Leave granted in municipal court to Lucille Burton, a daughter of the deceased, to file a complaint for a preliminary examination in the case of People of the State of Illinois v. William H. Benson, Jr. The court took jurisdiction and, on motion of the People, set the hearing for February 11, 1958.
February 11 On motion of the People, the municipal court reset the hearing for March 7, 1958.
March 7 Cause continued to April 7, on motion of the People.
April 3 Indictment against defendant returned to the criminal court of Cook County.
April 7 Nolle prosequi entered in municipal court on motion of the People.
April 11 Defendant entered a plea of not guilty upon arraignment and cause was set for trial on April 14, 1958.
April 14 Defendant demanded trial but, upon motion of the People, the cause was continued to April 30, 1958, with subpoenas.
April 30 On motion of the People, cause continued to May 2, 1958, without subpoenas; also, on motion of the People, the court ordered that defendant be examined by the Behavior Clinic and that the report be filed on or before May 2, 1958.
May 2 State's Attorney filed written motion requesting a continuance for sixty days, alleging it had come to his attention defendant had been recently confined to a mental institution, and that it was necessary for the prosecution to determine whether defendant's mental capacity was such as would enable him to stand trial. Over defendant's objection and demand for an immediate trial, a continuance was granted to June 17, 1958, with subpoenas.
May 20 Defendant filed motion for discharge under the provisions of section 18, division XIII of the Criminal Code, (Ill. Rev. Stat. 1957, chap. 38, par. 748,) alleging that he had been confined continuously since January 12, 1958, that he had neither been admitted to bail nor tried within four months thereafter, and that the delay did not occur on his own application. Although the judge hearing the motion expressed an opinion that defendant was entitled to a discharge, he denied the motion, as well as a motion demanding trial instanter, and the proceedings were adjourned to June 17, 1958.
June 6 Defendant filed motion to quash count 1 of the indictment and hearing on the same ...