Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 24, 1969.
In a joint trial, Donald A. Savage was tried by a jury and Joseph B. Crable was tried by the court. Both defendants were represented by the Public Defender, and both were found guilty of the offense of "Unlawful Use of Weapons" (Ill Rev Stats 1963, c 38, § 24-1 (a) (4)).
On appeal, defendants are represented by separate counsel. Both defendants contend that the trial court erred in refusing to grant their motions for substitution of judge. Defendant Savage additionally contends that his arrest and search were unlawful; that he was denied the right to be represented by competent counsel, and that there was insufficient proof of a prior conviction.
Three witnesses testified for the State: Warren Rife, a furniture salesman, and Chicago Police Officers Richard Crowley and John McMahon. The evidence shows that on December 6, 1965, defendants Savage and Crable, with Raymond Miller, entered a furniture store at 6151 South Halsted Street in Chicago. All three had their hands in their pockets, and Rife became apprehensive as to their intentions. He spoke to them three times, offering assistance. The men made no reply and gestured with their heads. After some time they left the store.
Rife followed the men from the store and stopped a passing police car. He spoke with Officers Crowley and McMahon and pointed out the men, who were walking south on Halsted Street. The men turned east on 62nd Place and Halsted. The officers drove their squad car to within 20 feet of the three men, got out, and Officer Crowley shouted, "Police officers, stop where you are." Savage turned and ran, and Officer Crowley gave pursuit. Crowley, running about 50 feet behind Savage, saw him discard a revolver. The officer captured Savage, placed him under arrest, and then went back and picked up the gun in a gangway where Savage had thrown it. The chase and the arrest took approximately ten minutes.
While the pursuit of Savage was taking place, Officer McMahon stood with the other two men, one of whom was defendant Crable. The officer observed what appeared to be the end of a shotgun barrel protruding from beneath Crable's overcoat. He ordered Crable to drop the weapon, and when Crable failed to do so, McMahon pulled the third man (Raymond Miller) in front of himself and took aim with his service revolver. Crable then dropped the shotgun. McMahon picked it up and later found a live shell in the cartridge chamber.
All three defendants were arraigned on December 20, 1965, on indictments charging each with attempted robbery (65-3490); unlawful use of weapons (65-3491); and resisting a police officer (65-3492).
On December 27, 1965, the defendants filed verified petitions for substitution of judges, naming Judge Wells and Judge Plusdrak. The petition was allowed, and the case was reassigned to Judge Herbert R. Friedlund, where it was continued from time to time to March 3, 1966.
On February 28, 1966, defendants were arraigned on two new indictments: 66-570, charging the unlawful use of weapons in the same language as the earlier indictment (65-3491), and 66-571, charging conspiracy. At that time the new indictments were assigned to Judge Friedlund, where the prior indictments, based upon the same facts and circumstances, were pending.
On March 3 the indictments charging robbery (65-3490) and the unlawful use of weapons (65-3491) were nolle prossed by the State. The indictment charging resisting a police officer (65-3492) remained. On March 3, 1966, both defendants moved the court to grant a petition for substitution of judge. In support of the motion, defendant Savage alleged that he feared he would not receive a fair and impartial trial before Judge Friedlund, and that the knowledge came to him on February 28, 1966. The motion for substitution of judge was denied. At that time the trial court also denied an oral motion of defendant Savage that the court appoint for him a "Bar Association lawyer" instead of the Public Defender, who was then of record as his attorney.
The cause was then continued to March 15, 1966, when indictments 65-3492 and 66-570-71 were consolidated and continued for trial to April 5, 1966, when the State dismissed indictment 65-3492, which charged resisting a police officer.
On April 5, 1966, the trial proceeded on indictments 66-570 (unlawful use of weapons) and 66-571 (conspiracy). Defendant Crable waived his right to a jury trial, and the trial proceeded as a bench trial for Crable and a jury trial for Savage.
At the conclusion of the trial, the jury returned a verdict of guilty against Savage on the charge of unlawful use of weapons and found him not guilty on the charge of conspiracy. Trial Judge Friedlund thereupon found defendant Crable guilty of the unlawful use of weapons and not guilty of conspiracy. After a discussion between court and counsel regarding the previous record of defendant Savage, the court sentenced him to not less than five years and not more than ten years in the Illinois State Penitentiary and entered judgment on the finding. The court sentenced defendant Crable to a year in the county jail and a fine of $500, to be worked out at $5 a day.
Considered first is the contention that the court erred on March 3, 1966, in denying the petitions of both defendants for substitution of judge. It is asserted that the court did not conduct a hearing to determine the merits of the motion as contemplated by the statute, and no testimony was heard nor any evidence received. It is argued that section 114-5(c) makes it mandatory upon the trial court to conduct a hearing if the motion for change is based upon "cause." Defendants argue that no hearing was held and, as the motion was supported by affidavit alleging prejudice of the trial judge, it must be presumed ...