APPEAL from the Circuit Court of Cook County, the Hon. ALFONSE
F. WELLS, Judge, presiding.
MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Sam Faulisi and four other men were indicted in the criminal court of Cook County for the crime of murder. After a separate trial before a jury he was found guilty and was sentenced to imprisonment for a minimum of 100 years and a maximum of 199. He appeals directly to this court, contending that he was deprived of the right to an impartial jury, that he was entitled to be discharged for not having been brought to trial within four months of his commitment, and that improper evidence was introduced against him, that the trial judge made prejudicial comments before the jury, and that the evidence was insufficient to prove guilt.
We first consider the claim that the defendant was entitled to discharge on the ground that he was not tried within four months. He was arrested and committed to jail on May 31, 1963, where he was confined continuously until trial began on November 22, about six months later. On November 18 his petition for discharge was denied. The statute provides, insofar as it is relevant, that "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. Stat. 1961, chap. 38, par. 748.) In the case at bar there is no contention that evidence on the part of the People might later be procured, the sole question being whether the delay happened "on the application of the prisoner."
The record shows that when defendant was arraigned on June 19 he requested the court to appoint a bar association lawyer to represent him. However, the court appointed the Public Defender, a plea of not guilty was entered, and the case was assigned to a trial judge. On the same day defendant appeared before the judge to whom the case was assigned where the following proceedings occurred:
"DEFENDANT SAM FAULISI: May I put in a motion for a Bar Association lawyer?
THE COURT: You want an attorney other than the Public Defender?
DEFENDANT SAM FAULISI: Yes.
DEFENDANT ROBERT FAULISI: Me too.
THE COURT: All right. Let the record show both Robert and Sam Faulisi are requesting an attorney other than the Public Defender; The court then will endeavor to appoint attorneys from the list of lawyers of the Chicago Bar Association. The State's Attorney will notify them. Will you do that?
MR. TUITE: (an assistant State's Attorney) I will.
MR. GOYER: (Attorney for another defendant) Judge, inasmuch as the Fourth Term applies in this case, your Honor I would like to have the record show that this continuance is either by motion of the State's Attorney or by motion of the Court.
THE COURT: I'm sorry, I couldn't do that, they have asked for attorneys, that is their request. I'll have to make it by agreement.
MR. GOYER: But that motion is on behalf of the two defendants that are ...