Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. CHARLES S. DOUGHERTY, Judge, presiding.
Reversed and remanded.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
A writ of error was sued out of the Supreme Court by the defendant, who was convicted of assault with intent to commit robbery and was sentenced to the Illinois State Penitentiary for a term of not less than seven nor more than fourteen years.
The defendant raises the point that he had made requisite demand for counsel other than the Public Defender and the arraignment judge erred in not appointing such other counsel.
After the issuance of the writ of error in the Supreme Court the case was continued generally to permit the defendant to file a petition under the Post-Conviction Act. In that petition the defendant raised the same point as is presently before us. Upon a denial of his petition by the trial court defendant appealed to the Supreme Court, which held in People v. Owens, 34 Ill.2d 149, 214 N.E.2d 749, that the right of an indigent defendant to demand counsel other than the Public Defender derived wholly from the statute, and was not a constitutional right. The Supreme Court therefore affirmed the judgment of the trial court on the post-conviction hearing. Thereafter the Supreme Court transferred the present case to this court, stating in its order of transfer that there is no substantial constitutional question presented on this writ of error.
On November 17, 1959, the defendant was arraigned in the criminal court of Cook County and the following colloquy took place:
"The Court: Louis, you are charged with robbery while armed and assault with intent to commit robbery. Have you got a lawyer?
"The Defendant: No, sir, not at present.
"The Court: Got any money to hire a lawyer?
"The Court: Public Defender.
"The Defendant: Is it possible to have a bar association lawyer?
"The Court: I have received notice from the bar association that they won't appoint any more lawyers. Public defender."
The case was thereafter assigned to another judge for trial and the defendant insisted upon trying his own case. As heretofore noted, he was found guilty by a jury and judgment was entered on the finding.
At the time of the arraignment of the defendant the statute upon which he relied provided in part: "Any court may, with the consent of the defendant, appoint counsel, other than the public defender, and shall so appoint if the ...