Writ of error to the Criminal Court of Cook County; the Hon.
ERWIN J. HASTEN, Judge, presiding. Affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 22, 1964.
This case is before us on a writ of error to review a judgment of the criminal court of Cook County entered on a jury verdict finding the defendant, Fairleigh Gray, guilty of armed robbery and sentencing him to not less than ten (10) years nor more than twenty (20) years in the state penitentiary.
Defendant contends (1) that he should have been discharged pursuant to his petition under the "Fourth Term Act" (Ill. Rev Stats 1959, c 38, § 748); (2) that the court erred in failing to grant his motion for a mistrial which motion was based on an alleged improper statement made by the trial judge when he outlined the nature of the case to the veniremen, to-wit:
"Now, ladies and gentlemen of the jury, we will start this discussion by notifying you of the charge. The charge is robbery, common robbery with a shotgun. Armed robbery, an ordinary robbery, when it is perpetrated, [sic] weapon of any kind, as this one was, is called armed robbery." (Emphasis added.)
which statement prejudiced the defendant by relieving the state of its burden of establishing the corpus delicti; (3) that the defendant was prejudiced by the irrelevant testimony of People's witness, Officer Grissett, concerning the number of police officers used to capture the defendant and the way in which such officers were armed; (4) that defendant was prejudiced by improper remarks made by the assistant State's Attorneys during defense counsel's cross-examination of People's witness, Officer Grissett; (5) that defendant was prejudiced by the display allegedly made by Officer Grissett during the testimony of alibi witness Donald Montgomery (throwing his arms in the air, moaning in disbelief, and then prostrating himself upon the bench rocking with laughter), and (6) that the prosecution's closing argument was improper in that it was vituperative and inflammatory and highly prejudicial to the defendant.
Regarding defendant's first contention, the State alleges that the running of the "fourth term" was tolled by a continuance by agreement of the parties.
The "Fourth Term Act" is in pertinent part as follows:
"748. Discharge for want of prosecution. sec 18. Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. . . ." (Ill Rev Stats 1959, c 38, § 748.) (Emphasis added.)
It has been held that a continuance by agreement of the parties is a delay on the application of the prisoner and under the statute, such a delay temporarily suspends the running of the four month period. (People v. Williams, 27 Ill.2d 327, 329, 189 N.E.2d 314; Healy v. People, 177 Ill. 306, 309, 52 N.E. 426.)
Defendant argues that there was no valid continuance by agreement of the parties as neither he nor his attorney was present in court when the order was entered. In support of this argument defendant alleges that George Uretz filed his appearance as attorney for the defendant on January 31, 1961, and that Mr. Uretz did not withdraw from the case until May 26, 1961, at which time the Public Defender was appointed by the court to represent the defendant. That the continuance by agreement was entered into by Mr. Chester Majewski of the Public Defender's office on April 17, 1961, and that Mr. Majewski had no authority to represent the defendant as the defendant was still represented by Mr. Uretz and no appearance was on file for Mr. Majewski.
Defendant has the burden of showing that the delay was not attributable to him. With the exception of the reference to the crime charged, the following language from People v. Emblen, 362 Ill. 142, 144, 190 N.E. 281, is equally applicable to the case at bar:
"To sustain the allegations of the petition and authorize his discharge, it was incumbent on the defendant to show, in substance, that he was committed for the criminal offense of assault with intent to kill, had not been admitted to bail, had not been tried by the court having jurisdiction of the offense within four months of the date of ...