Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Reversed
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion February 14, 1969.
After a bench trial defendant was found guilty of attempted robbery, attempted murder and aggravated battery. He was sentenced to not less than ten nor more than twenty years in the Illinois State Penitentiary for the count of attempted murder and not less than five nor more than ten years for each of the other two counts, the sentences to run concurrently. On appeal his sole contention is that he did not knowingly and understandingly waive a jury trial.
Illinois has codified the constitutional right to a jury trial and the conditions under which it can be waived, providing in the Criminal Code that:
Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court. (Ill Rev Stats, c 38, § 103-6 (1965).)
It is the duty of the trial judge to see that a jury waiver is understandingly made. Whether such a waiver has been understandingly made rests on the peculiar facts of each case and cannot be governed by any precise formula. People v. Wesley, 30 Ill.2d 131, 195 N.E.2d 708.
At the trial the following colloquy took place:
"The Court: All right. And then we can proceed to trial with Bell.
"Mr. Fishman (defendant's attorney): Yes, Your Honor, the defense, the defendant is ready for trial.
"The Court: The State is ready?
"Mr. Moran (Assistant State's Attorney): The State is ready, yes.
"Mr. Fishman: This is a jury waiver.