Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Defendant, George Bassett, along with Jerry Betts, was indicted for armed robbery in violation of Ill Rev Stats (1963), c 38, § 18-2. Both men were tried together. Betts was tried by a jury, while defendant waived a jury and received a bench trial. Both were found guilty of the crime charged, and defendant was sentenced to a period of three to five years in the Illinois State Penitentiary. He appeals that judgment and sentence. His sole assignment of error is that remarks made by counsel for both defendants in making a pretrial motion on behalf of Betts for severance from the defendant carried with them such a prejudicial import of guilt that it was impossible for him to receive a fair trial.
The facts adduced at the trial are set out in detail in our companion opinion (see People v. Betts, 101 Ill. App.2d 322 (1968)) and it is not necessary to repeat them here.
The pertinent portions of the pretrial motion for severance and the accompanying discussion are as follows:
DEFENSE COUNSEL (Representing Both Defendants): "Judge, at this time I would like to make a motion on behalf of the Defendant, Jerry Betts for a severance from the Defendant, George Bassett and I am asking leave to make this motion orally. I did not prepare a written motion and I ask the State's Attorney to waive a written motion."
STATE'S ATTORNEY: "We will waive it."
DEFENSE COUNSEL: "Bearing in mind the basic rule in requesting a severance, it is within the formal discretion of the Court, the fair play rule that the defendant be entitled be given a fair trial. I think there would be some question as to whether or not the defendant Jerry Betts could get a fair trial if he were tried with his co-defendant George Bassett and I think that the I can apprise your Honor with the case, I think the evidence will reveal that Betts' involvement in the case or his implication in this case stems from and because of the co-defendant George Bassett."
DEFENDANT BASSETT: "I object."
DEFENSE COUNSEL: "I am the lawyer here. Be quiet. I am talking to the Court now.
"Now, during the course of the investigation of the charge of armed robbery against the defendant Bassett, there was an interview or a conversation with a police officer who was assigned to investigate this case. And during their discussion, there were allegations or references to the defendant Bassett. At that time, the substance of the conversation was that Bassett said that there was a possibility that Betts was involved in this robbery; that Bassett possibly had Betts possibly had a second car second pair of keys to the car which was allegedly used in the robbery. And that because of this, of course, that the police officers continued to make their investigation and implicated Betts in the robbery. This is the reason."
THE COURT: "I don't know whether the statement is admissible, one against the other, outside of his presence. You intend to use any such statement?"
STATE'S ATTORNEY: "I don't know. These are statements that counsel has discovered in his investigation."
DEFENSE COUNSEL: "Well, they are in the police report and it is what this police report shows. That's how he is involved. Of course, ...