APPEAL from the Circuit Court of Knox County; the Hon. BURTON
A. ROETH, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Knox County found the defendant, William E. McGuire, guilty of burglary, and the court sentenced him to a term of imprisonment of not less than eight nor more than twelve years. On this direct appeal he raises constitutional issues concerning the admission in evidence of an oral statement in which he acknowledged that he broke into the building in question. He relies upon Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, and contends that the admission of this statement deprived him of his constitutional right to counsel. Apart from Escobedo, he also contends that his statement was involuntary and its admission deprived him of due process of law.
The defendant was charged with the burglary of a building occupied by the E.W. Houghton Lumber Company at Altona, Illinois, on August 29, 1964. Miles Baysinger testified that he lived a little over a block from the premises of the lumber company; that about 11:30 P.M. on August 29, 1964, he heard noises "like an explosion." He went to the front door and saw Harold Swanson, the night marshal of the village, marching the defendant down the road at gun point. At the marshal's request, Baysinger searched the defendant and took from his pockets a screw driver and a pair of gloves. Both the marshal and the defendant were bleeding. The defendant had been shot in the leg, and the marshal had been shot in the hip and in the body. Before the marshal "slumped down," he handed his gun to Baysinger and asked him to hold the defendant until the sheriff came. The marshal and the defendant were taken to a hospital at Galesburg. The defendant was given emergency treatment, and remained in a room in the hospital from approximately 1:30 A.M. on August 30 until 2:30 P.M. on August 31, when he was taken before a magistrate for a preliminary hearing. The defendant's oral statement which was received in evidence was made in his room in the hospital, at 9:30 A.M. on August 31, in the presence of Deputy Sheriff Marion Stewart and Mrs. Barbara Gans, a registered nurse at the hospital.
The defendant's first contention is based primarily upon the decision of the Supreme Court of the United States in Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977. He argues that his statement should not have been received in evidence because it was obtained prior to his first appearance before a judge, at a time when he was in police custody and was the sole suspect, but had not been effectively warned of his constitutional right to remain silent and his right to the assistance of counsel. He also contends that because there is no statutory provision for the appointment of counsel for an indigent defendant prior to his first appearance before a judge, he was deprived of his right to the assistance of counsel in violation of the sixth and fourteenth amendments to the constitution of the United States.
Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, was decided on June 22, 1964. It dealt with the privilege against self-incrimination and the right of a suspect to counsel during interrogation. When the case now before us was tried, the implications of Escobedo were not entirely clear, and different conclusions had been reached as to the necessity of a request for counsel during police interrogation. Compare People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33, and Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169, with People v. Dorado, 62 Cal.2d 338, 398 P.2d 361, and People v. Dufour, (R.I.) 206 A.2d 82.
In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 706-7, the Supreme Court again considered problems relating to police interrogation of suspects. It summarized its conclusions in the following terms: "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned."
In Johnson v. New Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 892, 893, the Supreme Court considered the extent to which its decisions in Escobedo v. Illinois and Miranda v. Arizona should be applied retroactively. The court held that the standards laid down in Miranda applied only to "persons whose trials had not begun as of June 13, 1966," the date upon which the court announced its decision in Miranda. As to the retroactive effect of Escobedo, the court said: "Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial, `[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *.' 378 U.S. at 490-491."
The Supreme Court thus limited its decision in Escobedo to the precise holding of the case, and this holding, the court decided, "is available only to persons whose trials began after June 22, 1964, the date on which Escobedo was decided." 384 U.S. 719, 16 L.Ed.2d at 892.
The trial in the present case commenced on February 25, 1965, but the record contains no suggestion that the defendant requested an opportunity to consult with a lawyer, and therefore the automatic rule of Escobedo is not applicable. The right to an attorney during custodial interrogation, in the absence of a request, did not become operative until June 13, 1966, the date of the Supreme Court's decision in Miranda v. Arizona. We hold, therefore, that under the standards applicable to his trial, the defendant was not denied the assistance of counsel. In this State attorneys have been appointed to represent indigent defendants upon the trial of charges of felony for more than a century. (See Vise v. County of Hamilton, (1857) 19 Ill. 78.) These appointments were made without reference to statutory authorization. So long as an indigent defendant receives the assistance of counsel to which he is entitled, the means by which that assistance is provided is of no concern to him. Therefore, the defendant's contention that the absence of a statutory provision for the appointment of counsel violated his constitutional rights need not be further considered.
The defendant also contends that his statement was inadmissible because certain statutory provisions were not complied with. Article 103 of the Code of Criminal Procedure of 1963 specifies that an arrested person has the right to remain silent, to communicate with a member of his family, and to consult an attorney. (Ill. Rev. Stat. 1963, chap. 38, pars. 103-1 to 103-8.) Section 103-7 of the Code provides that "every * * * person who is in charge of any jail, police station or other building where persons under arrest are held in custody pending investigation, bail or other criminal proceedings, shall post in a conspicuous place in such buildings, where it may be seen and read by persons in custody, a verbatim copy in the English langauge of the provisions of Sections 103-2, 103-3, 104-4, 109-1 and 110-4 of this Code." Section 103-8 provides that any peace officer who intentionally prevents the exercise of an accused of any right conferred by article 103 or who intentionally fails to perform any act required by the article is guilty of the offense of official misconduct and may be punished accordingly.
The defendant contends that because the notice referred to in section 103-7 was not posted in the hospital, his oral statement was inadmissible. We do not agree, for the statute seems clearly intended to apply only to buildings in which persons under arrest are customarily held. It is inapplicable to a case like this in which circumstances beyond the control of the police required that the defendant be kept in custody in a place not ordinarily used for that purpose. Moreover, article 103 provides its own sanction, and does not, in our opinion, contemplate the exclusion of evidence.
Our decision concerning these contentions does not establish the admissibility of the defendant's statement. The recent decision of the United States Supreme Court in Davis v. North Carolina, 384 U.S. 737, 16 L.Ed.2d 895, emphasizes that the absence of an attorney and the failure to advise a defendant of his right to remain silent are significant factors to be considered in determining the voluntariness of his confession. We proceed, therefore, to a consideration of the defendant's claim that his statement was inadmissible because it was involuntary.
Deputy Sheriff Stewart testified that at about 9:30 A.M. on August 31, he asked the defendant whether he would agree to give a statement. "I told him whatever he said, that at a later date, it could be used against him in any Court, whatever he said. I told him that he was entitled to have a lawyer if he wanted one; the whole procedure that we go through, advised him that if he didn't have funds that the Court would no doubt appoint the Public Defender. At that time he did not make any indication that he wanted to have a lawyer." After the defendant's statement had been reduced to writing, an insertion reciting that the defendant had been informed of his right to an attorney was added, and initialed by the defendant. The deputy thought that he had not specifically advised the defendant that he could remain silent. The defendant testified that deputy Stewart did not inform him either of his right to an attorney or of his right to remain silent.
There is in this case no claim that any physical force was used beyond that reasonably necessary to prevent the defendant's escape. The defendant does not assert that any promise of leniency was made to him, or that he requested to see anyone or that anyone who sought to see him was prevented from doing so. The critical ...