Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Defendant, James Walker, was convicted in a bench trial upon Count I of a two-count indictment charging him with the offense of armed robbery. He was thereafter sentenced to a term of from not less than two (2) nor more than ten (10) years in the State Penitentiary. Defendant appeals asserting as alternative contentions on review (1) that he was not brought to trial within 120 days of incarceration as required by statute, and (2) that the evidence failed to establish his guilt beyond a reasonable doubt.
With regard to the first of his theories on appeal, defendant alleges that he was arrested and taken into custody on August 12, 1965. There is no dispute but that defendant remained in custody because of an inability to meet bail. There appears, however, some indication in the Report of Proceedings that the arrest may not have been made until August 20, 1965. The common-law record is silent in this respect. On September 15, 1965, an indictment was returned against defendant charging him in two counts with the armed robberies of Ernestine Hunter (Count I) and one Willie Franklin (Count II). The offenses were alleged to have occurred on June 25, 1965.
Defendant was subsequently arraigned on the charges on September 22, 1965. The court at that time appointed an Assistant Public Defender through whom he entered respective pleas of not guilty. The case was thereupon assigned to Judge Alphonse Wells for trial. The very next day, before a trial date had been designated, defendant, by counsel, filed a written motion for a substitution of judges naming another judge in addition to Judge Wells. Judge Wells sustained the motion and promptly transferred the cause to the Chief Judge of the Criminal Division. The case was then reassigned that same day to the eventual trial judge, Judge Walter P. Dahl.
On November 4, 1965, the instant case reached the trial call. Defendant appeared and answered ready for trial, however, requesting of the State to waive formal notice of motion with respect to a motion for a Bill of Particulars he apparently intended to make. Defendant, in addition, made a motion for a reduction in his bond. The State similarly answered ready, but explained that it was appearing without witnesses because of its understanding that the court would be otherwise occupied that day. The court thereupon entered an order reducing bond to $5,000 and, on its own motion, continued trial of the case until November 8, 1965, without objection.
On November 8th, the case was continued until December 9, 1965, for reasons that do not appear of record. The order was entered on the court's own motion without objection. On December 9th the cause was reconvened. Defendant again answered ready for trial, at the same time informing the court of his non-receipt of a list of prospective witnesses or parties to oral or written statements from the State. The State again explained that it had not brought in its witnesses on the understanding that the court would be engaged in another proceeding. On the court's own motion, the State was ordered to furnish defendant with a list of witnesses within 15 days, the cause being continued accordingly by the court until January 3, 1966, without objection.
On January 3rd, defendant filed a written and verified pro se motion for discharge and dismissal of the indictment pursuant to section 748 of the Criminal Code. *fn1 The motion alleged in substance that, notwithstanding the accused's continued readiness to stand trial, more than four months (120 days) had elapsed since defendant had been first placed in custody. While acknowledging his successful motion for a substitution of judges, defendant averred that neither such motion nor any other conduct on his part caused or contributed to the delay in the proceedings.
Defendant's motion was taken under consideration by the trial judge and denied without hearing argument. The case was thereafter continued until January 12, 1966, because of the unavailability of certain State's witnesses due to illness. The trial commenced on January 12th. At no juncture in the proceedings below did the State make a formal or informal application to the court for an additional 60 days to procure material evidence as was open to them by the controlling statute. Ill Rev Stats (1965) c 38, par 103-5(c)(e).
A consideration of these attending circumstances impels this court to conclude that defendant, by his actions, substantially contributed to the delay for which he now complains. The statute upon which his case is predicated states:
"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." (Ill Rev Stats (1965) c 38, par 103-5(a)).
We think it implicit in the phraseology of this statute that, as a matter of reciprocal obligation, an accused seeking its guarantee must himself be held to some measure of restraint in exercising certain of the pretrial tactical motions available to him. We speak in more specific terms of defendant's motion for a substitution of judges, albeit made at the earliest opportunity, and its adverse effect upon the orderly administrative process necessarily a part of bringing his cause to trial. The issue essentially invokes a balancing concept underscored by a long recognized element of practical consideration for the expeditious handling of such matters. People v. Iasello, 410 Ill. 252, 102 N.E.2d 138 (1951). From within this framework, we regard the precedent of People v. Iasello, supra, and People v. Rankins, 18 Ill.2d 260, 163 N.E.2d 814 (1960), to be of particular importance.
In Iasello, motions were made by the accused for a separate trial from his coindictees and for a change of venue. Contrary to the erroneous distinction defendant attempts to draw from the authority of People v. Hatchett, 82 Ill. App.2d 40, 226 N.E.2d 97 (1967), Iasello involved a change of venue in name only. There, as here, the motion for a change of venue was granted and implemented by a simple substitution of judges from within the same judicial circuit. Again as here, the necessary transfer to the chief judge and reassignment of the cause was effectuated by the court on the same day.
To the extent that the Iasello decision is depreciated in value, we recognize that there both of the accused's motions had been made well after his cause had been placed on call for trial, but apparently before an actual trial date had been set. The court in Iasello employed the following reasoning in which we concur:
". . . In the present case plaintiff in error successfully presented motions for a separate trial and for a change of venue, both of which occurred at a time when the cause was on call for trial, and both of which necessitated its return to the chief justice of the criminal court for reassignment to another judge. Although each motion was followed with a demand for trial at the term of court then in progress, such a demand does not obviate the fact that delay necessarily resulted from each motion. Plaintiff in error thus created the necessity for ...