Appeal from the Circuit Court of Cook County, Municipal
Branch, Criminal Division; the Hon. MAURICE W. LEE, Judge,
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial in the First Municipal District of the Circuit Court of Cook County, held in the City of Chicago, four misdemeanor complaints against defendant Richard Gregory (also known as Dick Gregory) were consolidated for trial. Defendant was found guilty of two offenses of battery in violation of section 12-3 (Ill Rev Stats, c 38) and two offenses of resisting a police officer in violation of section 31-1 of chapter 38. The trial court sentenced defendant to imprisonment in the county jail for a period of five months and a fine of $200 on each of the two battery charges, and to imprisonment in the county jail for a period of five months and a fine of $500 on each of the resisting a police officer charges. The imprisonment terms were ordered to be served concurrently. Defendant's separate appeals were consolidated here on defendant's motion.
The four complaints arose out of a civil rights demonstration. The complainants were Edward J. McGee and Raymond Cisco, Chicago police officers. The two battery complaints alleged that defendant, on June 11, 1965, at "Columbus Drive and Balbo," committed the offense of "Battery in that he knowingly and intentionally without legal justification committed a battery" on Edward McGee, and on Raymond Cisco, in violation of chapter 38, section 12-3. The other two complaints alleged that defendant on June 11, at "Columbus Drive and Balbo," committed the offense of "Resisting a Police officer in that he knowingly resisted a police officer in performance of his duties."
On April 18, 1966, the four complaints came on for trial. At the opening of court, defendant's counsel informed the court that defendant Gregory was in New York and asked the court to proceed without him. A number of pretrial motions were heard, and the court, over defendant's objection, allowed the motion of the State to consolidate the four complaints for the purpose of trial, and the trial was adjourned to April 19, 1966. On April 19, 1966, a jury of twelve men and women was sworn to try the issues. At the trial, five police officers and a newspaper reporter testified for the State. Defendant was represented by three attorneys, all of whom actively participated in the proceedings but did not cross-examine any of the State's witnesses. At the end of the State's case, defendant's counsel, in open court and before the jury, said, "There will be no defense offered on behalf of the defendant, Richard Gregory, we stand mute." On April 22, the jury returned a separate verdict of guilty on each complaint, either "Battery" or "Resisting a Police officer," "in the manner and form as charged in the complaint."
Defendant's contentions on appeal are:
1. The complaint did not allege that the offense occurred within the jurisdiction of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, Illinois, and said court lacked jurisdiction.
2. When the court grants a defendant leave to withdraw his plea of not guilty, and does not rearraign the defendant nor enters a plea for him, there is no issue, there is nothing to be tried by a jury and the court has no jurisdiction.
3. Systematic exclusion of Negroes from the jury denied the defendant a fair trial by an impartial jury, was a denial of due process and equal protection of the law.
4. Refusal to allow defendant to use twenty peremptory challenges was prejudicial error.
5. After defendant had exhausted all peremptory challenges allowed by the court, denial of defendant's motion to excuse a juror for cause, who had made statements indicating a decision regarding a material fact was prejudicial error and requires a reversal.
6. Testimony relative to the absence of defendant from a portion of the trial was improper, incompetent, prejudicial and deprived defendant of a fair trial.
At the trial, John Kelly, Deputy Chief of the Patrol Division of the Chicago Police, testified that on June 11, 1965, he had occasion to be near Soldiers' Field in Chicago at about 12 o'clock noon. He conferred with Al Raby, Richard Gregory, Rev. Reddick and a number of others active in civil rights movements. Raby was the spokesman, and a planned route of a demonstration march was agreed upon. The marchers were to be permitted two lanes of travel which were normally used for vehicular traffic. At approximately 2:00 p.m., in the area of Balbo and Columbus Drive, he saw the marchers and demonstrators cross Columbus Drive, and he "had men to channel the two lanes to one lane, and the balance to be on the sidewalk." A meeting was had with the march leaders and police officers. After the meeting was held, "one of the Civil Rights Group went hollering, `Sit down,'" and approximately 300 sat down in the street. They sat in the intersection of Balbo and Columbus, and "all traffic was stopped." He instructed police officers with portable announcers to tell the group to cease blocking the intersection or they would be placed under arrest, and the response was "boos, catcalls, cheering and singing." He went through the crowd and advised the people if they would stand they would not be arrested; if they continued to sit they would be placed under arrest. Approximately 200 remained seated, and they were taken into custody and confined in the 1st and 21st District police stations. He saw defendant Richard Gregory seated in the intersection.
Raymond Cisco, a Chicago police officer, testified he was assigned to direct traffic around demonstrators who would be marching and to maintain peace. At approximately 2:00 p.m., and at the orders of their leaders, the marchers sat down and refused to get up. After having arrested five people, he approached the defendant and told him to get up or he would be placed under arrest. Defendant cursed him and said, "You're Richard's storm troopers, no better than the Alabama troopers." The officer reached over to grab defendant's right arm, and defendant fell back and started kicking. The officer was kicked in the groin and, after doubling up, he was kicked on the arm and chest. Officer McGee was behind him, and he heard him say, "Let go my finger." He couldn't remember much after that because he was nauseated. He, Officer McGee, other arrestees and the defendant entered a police van. Defendant was shouting loudly. Defendant told Officer McGee that they were picking on him "because he was a `nigger.'" When Officer McGee asked defendant why he bit him, defendant replied, "You were stealing my money." This was denied by Officer McGee, and defendant said, "This is civil disobedience, and we are disobedient because this brings attention to us." Later, Cisco and McGee were taken to a hospital.
Edward McGee, another Chicago police officer who arrested ten of the demonstrators and assisted in the arrest of the defendant, testified that Officer Cisco approached the defendant and told him to get up or he would be arrested. The defendant began to curse and shout and, as Cisco bent over defendant, the defendant kicked him in the groin. McGee was kicked in the chest. He grabbed the defendant's left arm and tried to pick him up. The defendant grabbed the hair on his chest, ripped his shirt, and bit him on the thumb. Another officer got McGee's hand out of the defendant's mouth. Cisco was holding his stomach and trying to vomit.
Raymond Minus, a Chicago police officer, testified to the events leading up to the arrest of defendant. He observed the defendant talking with Officer Cisco and subsequently saw the defendant lean back on his hands and kick Officer Cisco in the groin. After the officer doubled over, he saw defendant kick him again on the left elbow. He heard Officer McGee say, "Ouch, let my arm go," and he jerked McGee's arm from defendant's mouth.
John Patrick Lavin, a reporter for the Chicago Daily News, testified he was present when the police requested the marchers to narrow to three abreast because of the oncoming traffic and the ensuing danger. The marchers sat down, and he heard the police tell them that they were creating a nuisance, and if they didn't get up they would be arrested. He was about 20 feet from defendant when he was arrested. He saw two police officers approach defendant and say something to him. As they started to pick defendant up, he stiffened and started kicking and grabbing while yelling. He later had a conversation with the defendant, who stated that he had kicked the policemen with all his might. The defendant said the policemen were trying to get his money out of his pocket "I asked him how could they possibly take his money in front of all the newspaper reporters and the police officials, and he responded that was why he was kicking."
Considered first is defendant's contention that the four complaints were fatally defective because "none of the four complaints allege in what city, county or state the offenses occurred. For this reason, the Court lacked jurisdiction," and "deprived defendant-appellant of his constitutional rights to due process and equal protection of the laws as well as the right to be tried in the `county or district in which the offense is alleged to have been committed.'"
A discussion of authorities is not required because the determinative pronouncements made by our Supreme Court in People v. Williams, 37 Ill.2d 521, 229 N.E.2d 495 (1967), are controlling here. In that case a similar form of complaint was used, and the offense was alleged to have occurred at "900 S. Winchester," and no city or county was named in the body of the complaint. On page 524, it is said:
"If we look at the entire complaint in this case, the conclusion seems unmistakable that the complainant is describing an event that took place in Cook County. . . . Only by consciously refusing to look at the numerous references to that county, and concentrating solely upon the fact that the designation of that county does not follow the street address, is it possible to engender doubt. . . . Where, as in this case, there is no conflict between the caption and the body of the charge, no suggestion that the venue was improper or improperly proved, and no showing of prejudice to the defendant, we see no reason to refuse to read the caption as part of the complaint. So read, the complaint sufficiently designates the county in which the offense was alleged to have been committed."
We find that the four complaints sufficiently designated the city and county in which the offenses were alleged to have been committed.
We next consider defendant's contention that he was not properly arraigned, nor was a plea entered on his behalf by the court, and this requires a reversal. On April 19, 1966, before the selection of the jury commenced, defendant appeared in open court and pleaded "not guilty." Thereafter, on April 21, after the selection of a jury to try the issues, the court granted leave to the defendant to withdraw his plea of not guilty to permit him to make a motion to quash the complaints. At that time counsel for defendant said, "On behalf of the defendant I would like to withdraw his pleading and allow him to stand mute. We will withdraw his plea of not guilty for the purpose of filing a motion to quash the complaint" on the grounds of "racial discrimination." Defendant's counsel also said, "Why, the defendant will stand mute." During the hearing of defendant's motions, the State remarked that defendant was not present in court. Miss Jean F. Williams, one of the attorneys for defendant, stated, "There was already a discussion as of Monday, the 18th, according to the State, it is not necessary for the defendant to be present." The State: "You are waiving his presence?" Miss Williams: "We are ready to proceed. . . . At this time counsel for the defendant is ready to proceed."
The court denied defendant's motions to quash after a lengthy hearing and then directed counsel for both sides to proceed with "opening statements." The State made an opening statement, at the end of which counsel for defendant said, "No opening statement."
Defendant argues that the "Procedure on Arraignment (c 38, § 113-1) sets forth mandatory statutory requirements which were not followed in his case. Defendant's authorities dealing with rearraignment include People v. Moore, 21 Ill. App.2d 9, 157 N.E.2d 94 (1959). In that case the State's Attorney was granted leave "to amend the information by interlineation" over the general objection of the defendant. The court said (p 16):
"The record discloses not only that the information after it was amended was not sworn to but further discloses that no plea was ever entered thereto. A plea is not a mere formality. Whether the offense charged is a misdemeanor or a felony, a plea is essential to constitute an issue."
Defendant also cites People v. Economakas, 278 Ill. App. 265 (1934), in which the judgment of the trial court was reversed because the record failed to show that the defendant "filed or orally made in open court any plea to the amended information."
The State argues that both of the foregoing authorities show that the original informations were amended and charged different offenses than those charged in the original informations. The State asserts the instant complaints remained the same, and defendant knew the contents thereof. His plea was withdrawn at his request and not because of any activity of the People, and "Moreover, he did apprise the court that he would stand mute."
The State cites People v. Afton, 258 Ill. 292, 101 N.E. 557 (1913), where the defendant entered a plea of not guilty after arraignment. Subsequently, with leave of court, he withdrew the plea in order to enter a motion to quash the indictment. The motion was overruled, but the record failed to show the renewal of the plea. There the court said (p 294):
"The record in this case shows plaintiff in error asked and obtained leave of the court to withdraw his plea of not guilty for the purpose of entering a motion to quash the indictment. When the motion was overruled the trial proceeded without any objection on the part of the plaintiff in error, and we think it apparent that plaintiff in error, the State's attorney and the court considered and treated the overruling of the motion to quash as re-instatement of the plea."
In that case the court cited with approval a New York authority which noted "it would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the court and the parties." This statement applies here. Defendant was not prejudiced, and it was a just inference that all parties regarded the plea as having been withdrawn for the purpose of the motion only and proceeded to trial on the understanding that it was reinstated when the motion was denied.
Considered next is defendant's contention that there was a "systematic exclusion of Negroes from the jury," which denied the defendant a fair trial by an impartial jury.
On April 19, 1966, and before the voir dire examination of the jury commenced, defendant's counsel, Miss Williams, stated to the court: "I make a motion at this time to dismiss this voir dire which was brought into this courtroom. I bring to the Court's attention there are 32 veniremen were brought into this courtroom, among them only one a negro, one person appears to be a negro and I realize, of course, that this challenge must be made prior to the beginning. Now, if the Court please, we have no way of knowing prior to the time that the veniremen were brought into this courtroom that one, only one appeared to be a negro, in as much as the defendant is a negro, I submit this is in itself a violation of due process within the meaning of the Illinois Constitution, we would have challenged the choosing had we known, prior to the time they were present in this courtroom. . . . This does not represent a cross of the voters in Cook County, 1 out of 32. This would indicate something is wrong." The court stated, "Your comments are noted. . . . We will proceed." At that time defendant, in open court, entered his plea of "not guilty," and the voir dire examination then proceeded.
Later, and before hearing any testimony, defendant repeated the motion to discharge the jury, and the court denied it. Subsequently, and with leave of court, defendant filed a written motion nunc pro tunc, as follows:
"Motion to Discharge Jury Panel
"Comes now Richard Gregory, a/k/a, Dick Gregory, by Jean F. Williams, his attorney and moves, nunc pro tunc, this Court to discharge the jury panel assigned to this court on April 19, 1966, ...