Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Judgment
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 14, 1967.
The defendant, Frank O'Connell, was convicted of murder after a jury trial and sentenced to a term of 40 to 60 years in the Illinois State Penitentiary. The defendant appealed directly to the Supreme Court and the appeal was transferred to this court.
The defendant contends that (1) his petition for discharge should have been granted as he was denied the right of a speedy trial; (2) the denial of counsel other other than the Public Defender was a violation of his constitutional rights; (3) the denial of motion for a further Bill of Particulars deprived him of a fair trial; (4) venue was not proven beyond a reasonable doubt; (5) the State failed to prove him guilty beyond a reasonable doubt; (6) the trial court erred in denying his motion for a directed verdict at the close of the State's case; (7) the trial court improperly admitted certain testimony on behalf of the State; (8) the trial court improperly refused certain instructions tendered by defendant; and (9) defendant was deprived of a fair and impartial trial by reason of the prejudicial and inflammatory argument of the prosecutor.
We first consider the defendant's contention that he was denied a speedy public trial. It is undisputed that the defendant was arrested on September 13, 1964, and that his trial commenced on Monday, January 11, 1965, which was 121 days after his arrest. Illinois Revised Statutes, 1963, c 38, § 103-5(a), provides:
(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
Illinois Revised Statutes, 1963, c 131, § 1.11, provides:
The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday . . ., and then it shall also be excluded.
It is also undisputed that the 120th day fell on Sunday, January 10, 1965. The defendant concedes that the Supreme Court has held that under the old Criminal Code (Ill Rev Stats 1961, c 38, § 748) when the last day of the fourth-term period fell on a Sunday the commencement of the trial on the following Monday was proper. People v. Hurst, 28 Ill.2d 552, 193 N.E.2d 19; People v. Hannon, 381 Ill. 206, 44 N.E.2d 923. The defendant argues, however, that the time period under section 748 of the old Criminal Code was computed in terms of months and not days as under the new code and that this distinction is important. He insists that regardless of whether the last day falls on Sunday, the defendant must be given a trial within 120 days otherwise it is a denial of his constitutional guaranty of equal protection of the law. He states that, "There is no reasonable basis for the discrimination caused by the Sunday rule," and submits that the application of section 1.11 in criminal cases in no way meets the standard of equal protection of the law and that it should only be applied in civil cases. Therefore he concludes Sunday, January 10, 1965, should have been included in the computation and that his petition for discharge on January 11th should have been granted.
In People v. Walker, 34 Ill.2d 23, 213 N.E.2d 552, the defendant contended that the computation of his four-month period brought him to trial 122 days after he was taken into custody while other persons in custody would be entitled to a discharge on the 121st day as the computation of their four-month period could be 120 days. It was there contended, as here, that the disparity in computation denied him equal protection of the law and the court held there was no merit to the argument. In the new Criminal Code the legislators changed the old rule of four months and substituted the 120-day period while retaining Section 1.11, which excluded Sunday if it fell on the last day, for making the computation of that period. This legislation was intended to avoid as much disparity in the application of the law as was possible and practical. It is uniform for all persons who are in custody and awaiting trial under the same circumstances as the defendant and we hold that its application to the defendant was no denial of equal protection of the law. It is also called to our attention that the trial commenced 122 days after the arrest because the jury was not impanelled and sworn to try the issues until January 12th. The record is clear that the trial commenced on January 11th and we find no merit to this contention.
It is also contended that the refusal of the trial judge to appoint, on defendant's request, an attorney other than the Public Defender, unless the defendant requested a continuance for that purpose, violated his constitutional right to a fair and impartial trial and his right to counsel. The record reveals that the defendant was arrested on September 13, 1964, indicted for murder on December 13, 1964, and arraigned on December 15, 1964, before the Chief Justice. On the latter date the defendant told the court he did not want the Public Defender to represent him. The Public Defender informed the court that he believed the defendant's counsel was Tom Kilroy and the defendant said that while he had no money to retain a lawyer he thought his sister would employ Mr. Kilroy. The court informed the defendant that if Mr. Kilroy wished to represent him he would vacate the appointment of the Public Defender and the cause was assigned to Judge Dahl for trial.
On December 21st, when the case was called, Mr. Kilroy advised the court that he would not represent the defendant. The defendant then said he would rather have a Bar Association lawyer (from the Bar Association Committee representing indigent defendants) and the court stated that he didn't know if the Association would send another lawyer inasmuch as the defendant discharged Mr. Sullivan, a Bar Association lawyer. When the court asked him if he wanted a continuance for the purpose of seeing if the Association would send a lawyer to represent him he replied he was not worried about a continuance in the murder case and that he was ready to go to trial. Mr. Sullivan, who was present, advised the court that he would not represent the defendant, but would cooperate with anyone appointed by the court. Both Kilroy and Sullivan were permitted to withdraw and the Public Defender was appointed and the matter was set for trial on January 4, 1965.
On December 30th, the State, in a petition, requested an extension of the trial date under Ill Rev Stats 1963, c 38, § 103-5(c), alleging that a material witness who is a resident of California was involved in an automobile accident and unable to be present on January 4th. The Public Defender objected to any continuance and informed the court that the defendant told him that, "he feels that at the moment the choice he made was best, to stay with the Public Defender's office, and not break his fourth term." The Public Defender went on to say, "It then put a bind on me to adequately prepare for this murder trial in the space of a few weeks, and I have been working each day and night on this case in order to be prepared for trial January 4th." Strenuous objections were made to any delay in the trial and when the matter was called for trial on January 4th, the State withdrew the aforementioned petition. After acknowledging a copy of the Bill of Particulars the Public Defender said, "And I'm answering ready, and I understand you will try this within the fourth term."
The trial was continued to January 6th. On that date the defendant answered that he was ready for trial and moved for a further Bill of Particulars which motion was denied and the trial was continued to January 11th. On that date the defendant presented a motion and petition seeking to be discharged on the ground that he was not brought to trial within 120 days from the date of ...