APPEAL from the Appellate Court for the First District, heard
in that court on appeal from the Circuit Court of Cook County,
Criminal Division; the Hon. ERWIN J. HASTEN, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Fairleigh Gray and Gerald Williams were jointly tried by a jury in the criminal court of Cook County on a charge of armed robbery, found guilty, and defendant Gray sentenced to a term of not less than ten nor more than twenty years in the penitentiary. On writ of error the appellate court affirmed Gray's conviction, (52 Ill. App.2d 177,) and we granted leave to appeal.
Defendant contends first that he is entitled to discharge under the four-month statute (Ill. Rev. Stat. 1963, chap. 38, par. 748,) and secondly, that reversible error occurred in the trial.
It appears from the record that defendant Gray was arrested on December 31, 1960, and has remained in custody ever since. He was indicted, together with two co-defendants, on January 24, 1961, and was arraigned on January 31, 1961. Attorney George E. Uretz entered his appearance for the three defendants, and the cause was continued on the court's motion to March 13, 1961.
The cause was thereafter continued to April 10, 1961, on motion of the State, and continued to April 11, and then to April 17, 1961, by order of the court. It further appears from the common-law record that an order was entered by the court on April 17, 1961, which reads as follows:
"This day come the said People by Daniel P. Ward, State's Attorney, and the said Defendant as well in his own person as by his Counsel also comes.
"And on motion of Counsel for said Defendant, FAIRLEIGH GRAY, it is ordered by the Court that the State's Attorney, Counsel for the People, do furnish the said Defendant with a List of Witnesses in the above entitled cause.
"And by express consent and agreement between the State's Attorney, Counsel for the People, and the said Defendant, FAIRLEIGH GRAY, and his Counsel now here given and made in open Court, it is ordered by the Court that this cause be and the same is hereby continued until Wednesday, April 19th, A.D. 1961, without subpoenas."
On April 19, 1961, defendant Gray by attorney Uretz demanded trial at the April Term, but the trial court ordered the cause continued to May 23, 1961. On May 26, 1961, attorney Uretz was granted leave to withdraw as attorney for Gray and the public defender was appointed in his stead.
Thereafter Gray made a motion for discharge under the four-month statute, which motion was denied, and the trial of the cause commenced on June 26, 1961.
It is the theory of the State, concurred in by the trial and appellate courts, that either Gray or his counsel waived his right to a speedy trial by agreeing to a continuance on April 17, 1961, as appears from the common-law record.
The defendant insists, however, that neither he nor his counsel was present in court, nor did they consent to a continuance at that time, and that this fact appears from the bill of exceptions.
A resolution of this conflict requires a careful examination of the bill of exceptions relating to the hearings on April 10, 17 and 19. On April 10, attorney Uretz represented defendant Gray and Gerald Williams and James Williams on three indictments: 61-265, 61-266, and the one involved in this appeal, 61-278. Uretz advised the court that there was a possibility of conflict between the defendants in indictment 61-265, and asked to be permitted to withdraw as attorney for Gray. The following colloquy then took place:
"MR. URETZ: While that is being done, Judge, would you permit me to withdraw as counsel and have the Public Defender appointed. If there is any objection to it on ...