WRIT OF ERROR to the Criminal Court of Cook County: the Hon.
ALFRED J. CILELLA, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Louis Perry, referred to herein as defendant, and Walter Ransom were jointly indicted for conspiracy and assault with intent to rob. Defendant moved for a severance. His motion was granted. He was tried by the court without a jury, found guilty and sentenced to the penitentiary for not less than five nor more than fourteen years. He brings this writ of error, contending, first, that he was not tried within the four-month period provided by law, and, second, that the evidence was insufficient to sustain a finding of guilt. We shall examine these two contentions in order.
Defendant was arrested on September 14, 1959. He was not admitted to bail. He was brought to trial on February 8, 1960. On that date he filed a written petition for discharge on the ground that he had not been tried within four months from his commitment as required by statute. (Ill. Rev. Stat. 1959, chap. 38, par. 748.) The court denied his petition for discharge, and this denial is assigned as error.
The record shows that the case had been set for December 9, 1959, a date well within the four-month period. On that date, the judge asked if the defense was ready. Defendant's counsel answered "Not ready for trial" but said he was ready to argue a motion. He then made his motion for a severance, which was granted. Defense counsel then asked the court to transfer the case back to the chief justice for reassignment to another judge. This the court refused to do. The judge then reset the case for February 3, 1960. Defendant's counsel then said, "Judge, we are ready for trial now." The following colloquy then took place between the court and defense counsel.
Mr. Doherty: We are ready for trial now. We may have tolled the fourth term by filing the motion for severance.
The Court: You have tolled it by filing the motion for severance. There is no question about it.
Mr. Doherty: Then this will be order of court to the new date, is that correct?
The Court: That is right. No question of that. I am just saying that
Mr. Doherty: February 3, 1960."
Defendant contends that he did not cause the delay in his trial and was, therefore, entitled to be set at liberty upon his timely application for discharge. The People, on the other hand, contend that the defendant's motion for a severance contributed to the delay and that he is not entitled to be discharged.
In People v. Iasello, 410 Ill. 252, we held that the defendant there was not entitled to a discharge under the four-month statute where a substantial portion of the delay was caused by his successful motions for a severance and change of venue, both of which necessitated the return of the case to the chief justice of the criminal court for reassignment to another judge. Defendant concedes that, had his case been returned to the chief justice for reassignment, his motion for severance would necessarily have caused delay and he would not be entitled to a discharge. He argues, however, that in this case the delay was not necessitated by his motion for a severance. In support of this contention, defendant points to the fact that his case was not returned to the chief justice for reassignment and also to the fact that, as events turned out, his original co-defendant was not tried on December 9. Defendant also relies heavily upon certain remarks of the trial judge made at the time of the denial of the motion for discharge. From these remarks defendant seeks to draw the inference that, because of the congestion of the judge's calendar on December 9, it would have been impossible to have tried defendant on that date, and thus argues that the delay was one that was necessitated by the congestion of the calendar, rather than by his motion for a severance. Whether these remarks of the trial judge are properly susceptible to the interpretation placed upon them by defendant is a question with which we need not concern ourselves, for, even though the trial judge may have given the wrong explanation for his denial of the motion for discharge, this would not necessarily mean that he erred in denying the motion.
Defendant in his argument has, in effect, asked for a ruling on the abstract legal question of whether the granting of a motion for severance in and of itself defeats a defendant's rights under the four-month statute irrespective of whether any delay was necessarily occasioned by granting the severance. This court, however, does not rule upon abstract legal problems, but decides concrete cases. The question here is not whether any motion for a severance, regardless of the particular circumstances, amounts to a waiver of the four-month statute. The question is, rather, whether under the peculiar circumstances of this particular case, the defendant contributed to the delay in his trial.
The record shows that, on December 9, 1959, when the trial judge called the case and asked if the defense was ready, defendant's attorney answered, "Not ready for trial." He then presented the motion for severance, which was granted. Quite apart from the question of whether the severance in itself necessitated any delay, we believe that the trial judge, relying upon counsel's statement that he was not ready for trial, was fully justified in setting the case for a later date, and that he was ...