Writ of error to the Circuit Court of Cook County; the Hon.
KENNETH R. WENDT, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Upon a trial without a jury, the defendant was convicted of the unlawful possession of narcotics and sentenced to two years to two years and a day in the state penitentiary. He contends that he was denied the right to a trial within the period prescribed by statute (Ill Rev Stats, c 38, § 748 (1961)), which reads as follows:
"748. Discharge For Want of Prosecution.] 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. . . ." (Emphasis added.)
The issue to be determined on appeal is whether a continuance granted by the court during the period prior to trial was on the application of the defendant, in which case the running of the four-month statutory period would have been tolled.
Defendant was arrested with one Charleen Brown, not a relative, on February 21, 1963. Charleen was released on bail, but the defendant remained in custody. In the following months defendant and Charleen were brought before a judge of the Municipal Court of Chicago four times for the purpose of determining whether there was sufficient evidence to hold them to the Grand Jury. On June 13, 1963, a preliminary hearing was held and defendant was bound to the Grand Jury. On July 5, defendant was finally indicted, and on July 15, 1963, the Public Defender was appointed to represent him and a plea of not guilty was entered upon arraignment. Defendant then moved to have the case dismissed under the Fourth Term Act, and after the denial of that motion he was released on bail on July 26, 1963. Defendant was therefore in custody from February 21, 1963, to July 26, 1963, a period of more than five months, without having been tried or released on bail. Unless one of the continuances can be attributed to him, his right to a speedy trial was clearly violated.
The State contends that the continuance granted at the second hearing on April 1, 1963, which continued the case for hearing until May 6, 1963, was on defendant's application and therefore the running of the four-month period was tolled. This issue turns on the following dialogue between the court and the defendant:
"The Court: Are you ready for a hearing?
Sergeant Flynn: It has to be a bring-back, ...