Appeal from the Circuit Court of the 17th Judicial Circuit of
Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Judgment affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified August 31, 1966.
After a joint trial, the defendant, Robert L. Van Hyning, and William D. Lindquist, were found guilty of the offense of burglary by a jury in the Circuit Court of Winnebago County. The defendant was sentenced to the penitentiary for a period of not less than 2 nor more than 7 years. While incarcerated, he instituted the present forma pauperis proceeding which was filed in the Supreme Court, and counsel was appointed on his behalf. The Supreme Court, by order of October 19, 1965, found that no substantial constitutional issues were involved and transferred the case to this court.
The burglary in question took place at the Carlson Legion Post in Rockford in the early morning hours of July 12, 1961. Certain merchandise, medals, objects, money and papers were taken. Shortly after noon on the same day, the defendant's probation officer and two detectives, without knowledge that the defendant had been involved in this burglary, went to an apartment which had been rented to Lindquist and the defendant, to pick upon the defendant for violating his probation. The apartment door was partly open and the defendant and Lindquist were asleep. The probation officer and the detectives entered the apartment and saw, in open view, golf clubs, whiskey, medals and other objects which were the property of the Carlson Legion Post.
The detectives and the probation officer questioned the defendant and Lindquist concerning the property and searched them as well as the premises. They found $129 in defendant's pocket and $114 in Lindquist's. While the officers were searching the premises, the defendant ran out of the door and fled. Later in the afternoon he was apprehended on the roof of a building on Charles Street.
The defendant was unemployed at the time, and had worked only two weeks during the preceding month at a salary rate of $1.25 per hour for which he had been paid about two weeks prior to the burglary. The defendant consistently denied any complicity in the burglary.
On October 4, 1961, the defendant and Lindquist were arraigned. Counsel of his choice appeared for the defendant. Lindquist was without counsel and suggested that the court appoint defendant's attorney to represent him. The court asked if any adverse interest would be involved, and counsel replied that he didn't know but would have to look into the matter. The following colloquy occurred:
"THE COURT: Sometimes where there are two defendants, their interests get diverse as the case goes on. I will appoint an attorney for you. And I will carry the case the same as to both of the defendants at this time, unless you want Mr. Ingrassia to represent you at the arraignment, then you can do that.
"MR. INGRASSIA: Yes. Motion to quash, and plea of not guilty.
"THE COURT: All right, I will appoint Mr. Ingrassia to represent you at this point of the hearing. Then if it gets to another point, after you look into it, if it looks like there is going to be adverse interests between the two defendants, I will appoint someone else to defend the other one. There might be different defenses, or something like that. I will appoint you at this time to represent him.
"Let the record show that the defendants and each of them have been furnished with copies of the Indictment and a list of the jurors.
"Is there any motion as to the Indictments?
"MR. INGRASSIA: Yes, your Honor, motion to quash, and we do not ...