Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN B. COHEN, Judge, presiding. Remanded
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT. The defendant, Harold E. Smith, complains that the trial court sentenced him to the penitentiary without having held a hearing in mitigation, that the court refused to consider his application for probation and that his sentence is excessive.
The defendant was found guilty in a non-jury trial of the larceny of an automobile valued at $250 and was sentenced for a term of from five to ten years in the penitentiary. He does not seek a reversal of his conviction, but asks this court to either reduce his sentence or to remand the case to the trial court for resentencing after giving him an opportunity to present evidence in mitigation of his offense.
The defendant and a co-defendant were arrested while riding in a stolen automobile four hours after the owner had parked it in front of his house. The arresting officer signaled the car to stop but the car was accelerated in an attempt to get away and then both defendants jumped out and fled. The defendant testified that an acquaintance, whom he had met in a tavern a short time before, agreed to drive him to his destination, gave him the keys to the car and a dollar to get some gas, and that while he was on the way to a gas station he saw and picked up his co-defendant.
At the conclusion of the trial the court reviewed the testimony, observed that the defendant told a fanciful story which exculpated his co-defendant, found the co-defendant not guilty and then said: "I will find Harold Smith guilty because he not only has been proven guilty beyond a reasonable doubt, but because he flagrantly told untruths on the stand. I will punish him very severely."
The defendant's attorney made a motion for a presentence investigation which the court denied. The attorney then made an application for probation which the court also denied, saying: "No probation in this court for a man who takes the stand and lies the way Harold Smith did." A brief colloquy ensued and the court again commented that the defendant had told an absurd story and had lied in behalf of his co-defendant. The court concluded: "There is not much we can do about that, and I agree there isn't sufficient evidence against Conley [the co-defendant], but Harold E. Smith should be punished severely and he will be."
After denying the defendant's post-trial motions the court pronounced judgment and asked the prosecutor if he had a recommendation. In response, the prosecutor stated that in 1962 the defendant had been fined for driving while his license was revoked and that there was a "notation" that the defendant was wanted for driving a stolen motor vehicle. The prosecutor recommended a sentence of a minimum of 5 years and a maximum of 10 years. The court accepted the recommendation and imposed the sentence suggested by the State.
The sentence imposed by the court was within the limits permitted by the Criminal Code and no error was committed in denying a presentence investigation or in refusing probation. A defendant has neither an inherent nor a statutory right to probation; granting or not granting probation rests in the discretion of the court. The injection by the prosecutor of the prior record of the defendant constituted at least a partial hearing in aggravation. However, nothing took place that can be regarded as a hearing in mitigation. Under these facts and the first point raised in this appeal two questions must be resolved: (1) did the court err in not holding a hearing in mitigation and (2) should a request for a presentence investigation be equated with a request for a mitigation hearing?
Section 1-7(e) of the Illinois Criminal Code (Ill. Rev Stats 1963, c 38, par 1-7) states in part:
"All sentences to the penitentiary shall be for an indeterminate term. The court in imposing a sentence of imprisonment in the penitentiary shall determine the minimum and maximum limits of imprisonment."
Subsection (g) of the same statute provides:
"For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense."
Section 1-7(g) appears to be mandatory and it has been held that the words "the court . . . shall also hear and receive evidence, if any," make it necessary for the trial court to obtain information about the defendant in all cases. People v. Evrard, 55 Ill. App.2d 270, 204 N.E.2d 777.
The language of section 1-7(g) while mandatory in form is no more so than the words "it shall be the duty of the court to hear evidence" which were in the Criminal Code prior to 1962. The former code provided:
"In all cases where the court possesses any discretion as to the extent of the punishment, whether defendant has pleaded `guilty' or `not guilty,' after conviction, it shall be the duty of the court to hear evidence as to aggravation and mitigation of the offense." Ill. Rev Stats, 1957, ch 38, ...