Appeal from the Circuit Court of St. Clair County, Twentieth
Circuit; the Hon. ALVIN H. MAEYS, Judge, presiding. Judgment
Rehearing denied March 10, 1969.
The defendant, Clarence Rohwedder, together with two co-defendants, was indicted by the Grand Jury of St. Clair County for the offense of burglary in violation of c 38, § 19-1, Ill Rev Stats 1967. The trial of the defendant and one of the co-defendants commenced on May 22, 1967. After the jury had been selected and sworn the co-defendant entered a plea of guilty. The trial of the defendant resulted in the jury returning a verdict finding the defendant guilty. The defendant has appealed from the judgment upon that verdict.
The defendant raises three issues in his appeal. The first is whether the trial court erred in dismissing a juror after that juror had been accepted by both the State and the defendant. The second issue is whether the trial court correctly denied the defendant's request for additional peremptory challenges, and the third issue is whether the trial court ruled correctly as to the admission of certain evidence.
From the record it appears that during the voir dire examination of the first panel of four veniremen, one of the veniremen was asked, among other things, whether she was acquainted with the two defendants being tried. The venireman stated that she was not and was subsequently accepted together with three other veniremen. In choosing the first panel of four, the defendants exercised three peremptory challenges.
The parties then proceeded to the selection of the next panel of four jurors. In selecting the second panel the defendants exercised eleven of their peremptory challenges and accordingly had used fourteen of their allotted 20 peremptory challenges in accepting their first eight jurors. The court then recessed for the day.
At the beginning of the second day of trial a conference was held between the court and counsel at which time the court stated:
"At approximately 4:30 p.m., May 22, 1967, a juror by the name of Mrs. Golec (a juror in the first panel of four), after the Court had recessed for the day, counsel and defendants were no longer before this Court, Mrs. Golec stated to the Court that after observing one of the defendants, not naming which defendant it was, she realized that she knew this defendant by reason of the fact that he either worked or she had seen him in one of the places of her employment and that the reason that she did not recognize him after having observed said defendant from approximately 9:30 a.m. to approximately 3:00 p.m. in the afternoon was that he was clothed differently than she generally saw him clothed."
The court then indicated that it was going to discharge the juror after the selection of the entire jury. Defense counsel for both the defendants objected to this procedure and moved for a mistrial. The State's Attorney thereafter suggested that the juror be discharged immediately. Again defendants moved for a mistrial and the court denied their motion. Mrs. Golec was placed in the jury box and questioned in open court. She stated that she knew one of the defendants and had not spoken to any prospective jurors concerning the fact that she knew one of the defendants. The court thereupon dismissed her. After her dismissal, defense counsel objected and renewed his motion for a mistrial. Again, the motion was denied.
In selecting a replacement for Mrs. Golec, defense counsel asserted four of their peremptory challenges.
The court thereafter began the process of selecting the final four jurors to fill the panel. After the State accepted and tendered four veniremen, the defense counsel exercised their last two peremptory challenges. At this juncture, they moved for additional peremptory challenges for the purposes of completing the panel. The court denied defendant's motion. Thereafter, the final two jurors were selected without challenge.
After the selecting of the jury, the co-defendant withdrew his plea of not guilty to the indictment and entered a plea of guilty.
The defendant here, as in the court below, argues that he was denied a fair and impartial trial by the court's action of excusing on its own initiative a juror after she had been accepted by both parties.
It is apparent that the trial court was confronted with an unusual situation calling for the exercise of sound judicial discretion. It should be noted that the subject was first initiated by the trial judge in an obvious effort to acquaint counsel with a fact that a juror previously accepted by both sides had communicated to him information different from that given by the juror under oath prior to her acceptance. Clearly there were no grounds upon which a mistrial could have been declared as insisted by the defendant and no suggestion was made that any prejudice was made against either the People or the defendants. The juror had not indicated which defendant was known to her or whether the fact of that ...