Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 20, 1969.
Defendant Hubbard was indicted for the crime of burglary. He was tried by the court without a jury, found guilty and sentenced to the State Penitentiary for not less than three nor more than eight years.
Defendant by his appointed counsel contends that he was denied a constitutional right when the court denied his motion for a copy of the transcript of the preliminary hearing at which he was held over to the grand jury and that the hearing in aggravation and mitigation did not satisfy the statutory requirements. The defendant pro se also filed a brief unbeknownst to his appointed counsel or the State's Attorney, in which he argues that the indictment was insufficient and that the court erred in denying defendant's motion in arrest of judgment.
Quizzola Brooks testified that on April 20, 1966, she awoke to find defendant touching her bed in the apartment occupied by her and her family. The defendant said he wanted money. She said she had no money and had thirteen children. He then said that he had to do this for his living as he had "seven kids." Members of Mrs. Brooks' family subdued the defendant and held him until the police arrived. Mrs. Brooks' nephew, Hicks, testified that while they were waiting for the police to arrive, defendant told them all about his children. Defendant later testified that he had no family of his own and was not married.
It would serve no useful purpose to further discuss the facts of this case as the points raised do not question the sufficiency of the evidence.
Defendant's first contention is that he was denied his constitutional rights in that he was not furnished a copy of the transcript of the preliminary hearing. Section 102-17 of the Criminal Code, Ill Rev Stats, 1965, c 38, par 102-17, provides that a preliminary examination means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense. The motion for a copy of the transcript was presented by the Public Defender on August 17, 1966, the date the defendant was tried in the Circuit Court, Criminal Division. Defendant relies upon Roberts v. LaVallee, 389 U.S. 40, 88 S Ct 194, wherein the petitioner, an indigent, was charged in the New York courts with robbery, larceny and assault. His clear and unequivocal request for a free copy of a preliminary hearing transcript was denied even though a New York Statute provided for the furnishing of such a transcript for a fee. This denial was held to be a denial of the defendant's right to equal protection of the laws since the statute created differences in legal access to such a transcript based upon the financial situation of the accused. The LaVallee decision is inapplicable to the instant case because there is no such statute in Illinois which provides for the furnishing of a preliminary hearing transcript for a fee or otherwise. An Illinois Supreme Court Rule (Ill Rev Stats 1965, c 110, § 101.27 (9)(b)) provides only for a transcript to be furnished an indigent of the proceedings of the trial in which the indigent was convicted.
The defendant also relies on Griffin v. Illinois, 351 U.S. 12, 100 L Ed 891, in support of his contention that the preliminary hearing transcript should have been furnished. A similar argument was advanced in People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433, and the Supreme Court rejected such an extension of Griffin which would impose a constitutional duty to provide indigent persons with a free transcript of a preliminary hearing. The Court said at page 411:
"A preliminary hearing in Illinois is not a `critical stage' where rights or defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received. Rather, the scope and purpose of preliminary proceedings are in general to ascertain whether a crime charged has been committed and, if so, whether there is probable cause to believe that it was committed by the accused, (14 ILP, Criminal Law, Sec 171). Even then a finding of probable cause is not binding upon a subsequent grand jury."
Mr. Justice Schaefer, specially concurring, stated that where a court reporter was present at the preliminary hearing, the rule announced in Griffin required the furnishing of a transcript upon request. In the case at bar, the record does not disclose whether such a reporter was present.
However, we need not only rely upon the aforementioned authority in order to reject this argument advanced by the defendant. On the morning of the trial's commencement, the defendant unequivocally informed the court that he wished to withdraw his motion which asked for a transcript of the preliminary hearing. Such a withdrawal constitutes a waiver of the point he now relies upon for reversal. Furthermore, the defendant filed a document entitled "Motion to Stay Proceedings and Motion for Dismissal" which was signed by the defendant and sworn to by him in open court. In this document the defendant stated that he was bound over to the grand jury without the appearance of witnesses or the arresting officer. If no testimony was heard at the hearing, we cannot see what a transcript of the preliminary hearing could contain which would be of any advantage to the accused. Therefore, under the circumstances, the defendant could not have been prejudiced by the action of the trial court.
The defendant next argues that the hearing in aggravation and mitigation did not satisfy the statutory requirements as interpreted by case law. The record shows that the defendant is a high school graduate, served in the Navy and received an honorable discharge, was articulate and employable. He was twenty-eight years of age. He argues that the court gave no heed to the suggestion of the defendant's attorney that he receive treatment aimed at curing rather than merely punishing the defendant. The basis for this argument is the contention by the defendant that he acted somewhat erratic in that he had testified that he gave a drink to strangers on the street prior to his entrance in the Brooks' apartment and that he told the complaining witness and other State witnesses about having a large family to support, all of which would serve only to increase the danger of being apprehended. It is further contended that this conduct all points to an emotional disturbance which needed treatment. However, the defense fails to consider that the defendant was being held by members of the victim's family and could not have escaped the danger of being apprehended. His past record of being a high school graduate, of having been honorably discharged from the Navy, and of being articulate and employable all militate against the defendant's being in need of treatment by professional healers. The court in People v. Lillie, 79 Ill. App.2d 174, 223 N.E.2d 716, states at page 179:
"Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders. The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions."
The defendant in this case may still avail himself of the educational and rehabilitation ...