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People v. Drink

FEBRUARY 2, 1967.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. HERBERT PASCHEN, Judge, presiding. Affirmed.


Albert Drink was indicted and convicted for the crime of attempt. He was sentenced to one to six years in the penitentiary.

At his trial by the court without a jury the evidence disclosed that Chicago policemen, searching for the robbers of a taxicab driver, observed Drink firing a gun at a window across the street from where he was standing. One of the officers jumped out of the police car and, when about 40 yards from Drink, called out "Police Officers!" Drink turned, fired at the officer and ran into a building. He was captured on the inside stairway of the building.

On appeal the defendant contends that the indictment was jurisdictionally defective and that he was denied his constitutional right to trial by a jury.

The first issue concerns the sufficiency of the indictment. It alleged that:

". . . on the 19th day of July 1963, at and within . . . [Cook] County ALBERT DRINK committed the offense of attempt, in that he, with . . . intent to commit murder, attempted to kill Gerald M. Lewandowski. . . ."

The Criminal Code describes the offense of attempt as follows:

"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." (Ill Rev Stats 1961, c 38, § 8-4(a).)

The defendant admits that the indictment set forth the requisite intent and the specific offense attempted but urges that it did not adequately describe an act which constituted a substantial step toward commission of the offense. He further argues that even if the indictment charged all the essential elements of the offense, it was defective in failing to allege the facts and circumstances of the offense and hence was insufficient to inform him of the nature and cause of the accusation in such a manner as to enable him to plead his conviction as a bar to further prosecution for the same offense.

[1-4] The indictment did charge the commission of an act as required by the statute by the allegation that Drink "attempted to kill Gerald M. Lewandowski." An attempt to kill is clearly an act constituting a substantial step toward commission of the offense of murder. Although the indictment did not describe the particular method of the attempt it was unnecessary for the State to plead such evidentiary details. See People v. Hughey, 382 Ill. 136, 47 N.E.2d 77 (1943); People v. Meaderds, 21 Ill.2d 145, 171 N.E.2d 638 (1961). The essence of the crime of assault with intent to murder, or attempt murder, is the specific intent to take life (People v. Coolidge, 26 Ill.2d 533, 187 N.E.2d 694 (1963)), and in a case of this kind the indictment need not set out the manner of the assault with any degree of particularity. Hamilton v. People, 113 Ill. 34 (1885). The indictment alleged that the defendant attempted the murder of a specified person on a specified date. This adequately informed the defendant of the nature and cause of the accusation (Constitution of Illinois, art II, § 9), enabled him to make preparation for his defense and to plead the judgment (supplemented if necessary by the record, transcript or testimony as to the specific facts involved) in bar of a subsequent prosecution.

The defendant's second point is that he was not properly and adequately informed of his right to a jury trial. On October 7, 1963, an attorney of the defendant's own choice entered his appearance. The defendant was arraigned on October 11th, entered a plea of not guilty and the cause was continued to November 4, 1963. The common-law record recites that on November 4th:

". . . the said Defendant and his Counsel now here propose to waive the intervention of a jury and submit this cause to the Court for trial and the Court having fully advised the said Defendant of his right to a trial by jury, said Defendant still adheres to his proposition to waive such right and by agreement between the State's Attorney Counsel for the People and the said Defendant and his Counsel, this cause is submitted to the Court for trial and the intervention of a Jury waived."

The record also contains a waiver of jury trial signed by the defendant on that date. On May 22, 1964, the case was called for trial. The trial judge was not the judge who had advised the defendant of his right to jury trial. The defendant's attorney announced that the defendant was ready for trial; the witnesses were sworn; a preliminary motion was made and then the State presented its first witness. The trial was without a jury and the trial judge did not tell the defendant that he had a right to one.

To safeguard the right to a jury trial our courts have assumed the duty of seeing that an accused's election to forego a jury trial is made expressly and with understanding. That duty cannot be perfunctorily discharged. People v. Fisher, 340 Ill. 250, 172 N.E. 722 (1930). This defendant was informed of his right by a court and was assisted by counsel in making his choice. He signed a jury waiver. Nothing in the record indicates that he was coerced to waive his right. Nothing in the ...

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