Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Edwin Brancztet was found guilty of burglary in a non-jury trial and was sentenced to the penitentiary for a term of not less than ten years and not more than fifty years.
To reverse his conviction he contends that (1) he did not waive a jury trial of his own volition; (2) the evidence did not establish his guilt beyond a reasonable doubt; (3) his constitutional rights were violated by an unlawful search and seizure; (4) certain exhibits of the State were erroneously admitted into evidence and (5) he was deprived of his civil rights by an excessive sentence.
There is nothing in the record which supports the contention of the defendant that he was induced to waive a jury trial or that the decision was made for him by his counsel. The pertinent portion of the record is as follows:
"The Court: Edwin Brancztet, your attorney indicated this was going to be a jury waiver and a bench trial.
Q. You understand that under the law you have the right to a jury trial?
Q. And you wish to waive that right and you wish to have this court try your case?
Q. Will you indicate that for the record by signing a jury waiver."
The jury waiver was signed and the case proceeded to trial. The court's exposition of the defendant's right to be tried by a jury was clear and complete; to have added more would have been repetitive. The defendant's answers show that he understood what the court said and his signing the waiver was an act of his own will. The record indicates that his counsel was present at the time. While he may have followed the advice of his counsel, the decision to waive a jury was made by him and not for him. If it were otherwise or if he wanted a jury trial, he had full opportunity to so inform the court.
The building burglarized was owned by Mary Pietrascewski who operated a tavern on the first floor and lived on the second. To the rear of the tavern, and on the same lot 15 or 20 feet away, was another building with a garage on the ground level and a small apartment above it occupied by a tenant. When Mrs. Pietrascewski closed the tavern about 1:30 a.m., June 7, 1963, she locked the doors and windows and left two lights burning, one above the back bar and the other on the tavern's rear porch. She was awakened by the police around 5 a.m. Upon inspecting the tavern she found that two steel bars had been unscrewed from a hallway window, many bottles of whiskey were missing, the pinball machine and juke box were broken open and all the coins removed from them, and $11 in change which had been left in the cash register was gone. The police had arrested the defendant before awakening her and she saw him in their squad car. In the car she also saw four cases of whiskey and a quantity of loose change wrapped in one of her bar towels. She identified the whiskey and recognized several of the coins, because she had marked with red nail polish some of those which had been inserted in the juke box.
The police had received a call that a burglary was in progress at the tavern and three squad cars responded. Some of the policemen went to the rear of the tavern and one of them went into the alley back of the smaller building. There he saw the defendant and nearby found four cases of whiskey under some rubbish. The defendant was searched and $88.47 in coins and a nine-inch screwdriver were found in his pockets.
The call to the police was made by Helen Bozsiko, the tenant who lived on the second floor of the cottage at the rear of the tavern. She had been sleeping in the room which faced the tavern; it was a warm night and the three front windows were open. She got up about 5 a.m. when she heard the click of a doorknob at the rear entrance to the tavern, and she then heard a muffled burglar alarm. From a front window she saw a man in the tavern taking things from the counter and putting them on the bar. She saw this man, who wore a light tan shirt with a dark collar and who had a dish towel over his shoulder, go in and out of the tavern three times carrying cases of what she thought was beer. She watched him for almost 30 minutes before notifying the police. She continued to watch the man until the police arrived and she was at a kitchen window when they entered the alley. She saw him start walking away, and she heard a policeman ask him what he was doing in the alley ...