WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
HAROLD P. O'CONNELL, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT: Rehearing denied November 25, 1963.
On July 26, 1962, the defendant, Robert Catalano, was tried in the criminal court of Cook County before the court without a jury on two indictments: the first alleging unauthorized control of a stolen automobile, and the second alleging theft of another motor vehicle. He was found guilty on both indictments and sentenced to the Illinois State Penitentiary for concurrent terms of not less than one nor more than five years. He prosecutes this writ of error to review his conviction.
The defendant contends that the trial court erred by denying the defendant a change of venue, refusing to permit the defendant to withdraw a jury waiver, and by refusing to permit the defense counsel to withdraw. Defendant also contends that the evidence was insufficient to sustain the allegations of either indictment.
In order to properly evaluate the first three alleged errors it is necessary that we consider the chronology of events in the trial court leading up to the motions for change of venue, for withdrawal of the jury waiver, and for leave to withdraw by defense counsel.
On May 29, 1962, the defendant was arraigned, entered a plea of not guilty, and the case was assigned to a trial judge. He was represented by an attorney of his own choice on this date and during all subsequent proceedings. On June 29, 1962, the case came up for trial, and the defendant's attorney requested a continuance. Defendant's counsel had not advised the State's Attorney in advance of his intention to request a continuance, and the State asserted that they were ready for trial and that their witnesses were present. At this time, the defendant's counsel entered into a stipulation with regard to the testimony of the owners of the two automobiles in question. In discussing the case defendant's counsel stated, "This will definitely be a bench trial", and the defendant signed a jury waiver. The defendant also moved for a presentence investigation by the probation department, and on defendant's motion the cause was continued.
On July 26, 1962, this cause came on for trial. At this time the defendant made his motion for a change of venue, which was denied. The following discussion then took place:
"Mr. Caplan: Judge, at this time I would like to ask leave of the Court to withdraw my appearance on behalf of this Defendant.
"The Court: That motion will be denied also. You will have to go to trial, I am afraid.
"Mr. Caplan: Also, the Defendant now tells me that he now wishes a jury trial. He did waive a jury, before. He didn't realize what the consequences were.
"The Court: Your request for a jury trial will be denied, Mr. Caplan. I think the record should reflect that is all brought by your visit to me in chambers this morning.
"Mr. Caplan: No, I have nothing to do with it. I don't want to be in this matter. I don't want to have anything to do with it. I don't want to defend this man.
"The Court: Not less than fifteen minutes ago you came into my chambers and wanted to talk about this case
"Mr. Caplan: That had nothing to do with it.
"The Court: (continuing) in the absence of the ...