WRIT OF ERROR to the Circuit Court of Cook County, Crimonal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
John Richardson was convicted of the offense of attempt (Ill. Rev. Stat. 1963, chap. 38, par. 8-4) in a bench trial in the circuit court of Cook County and sentenced to the Illinois State Penitentiary for a term of 1 to 3 years. He prosecutes this writ of error, contending his constitutional right to a jury trial was not understandingly and knowingly waived, and that the proof failed to establish the material allegations of the indictment or that any crime had in fact been committed.
The common-law record originally filed did not contain a written jury waiver, and defendant argues its absence is corroborative of his contention that he did not knowingly and understandingly waive his right to a jury trial. However, a supplemental record filed by the People does contain a written waiver of jury trial signed by defendant. Additionally, the common-law record states that defendant was fully advised of his right to a jury trial, but that by agreement between the State's Attorney, counsel for defendant and defendant the cause was submitted to the court without a jury. The stenographic transcript reads:
"The Court: Will this be a bench or a jury?
Mrs. Johnstone [the attorney for defendant]: A bench, Your Honor.
The Court: All right. We will hold it for trial. We will call it again.
Mrs. Johnstone: Thank you, Your Honor.
The Court: Take him back. We will call it again.
(Thereupon a short recess was taken, after which the following proceedings were had).
The Court: All right. Bring out the defendant. (Defendant present before the bar).
The Court: Have a seat, please.
Mr. Zimmerman [assistant State's Attorney]: Judge, the defendant, Richardson, has executed a jury waiver.
The Court: All right. Jury waiver."
Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. (People v. Palmer, 27 Ill.2d 311, 313.) Here, the defendant's counsel, directly after stating to the court that there was to be a bench trial, had the opportunity to discuss the merits of this decision with her client during a short recess, after which defendant and his counsel were present in court when the assistant State's Attorney stated that defendant had executed a jury waiver and the court stated that there was a jury waiver. Moreover, this defendant was no newcomer to criminal proceedings. Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. (People v. Nelson, 17 Ill.2d 509, 511.) While the trial court might well have dwelt at more length ...