APPEAL from the Circuit Court of Rock Island County; the Hon.
GEORGE O. HEBEL, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Rock Island County found he defendant, Neil Merle Smith, guilty of burglary and he was sentenced to the penitentiary for a term of not less than 5 nor more than 10 years. On this appeal he contends (1) that the use at his trial of his unsigned statement, which was made after he had been arrested and released on bail, deprived him of his right to counsel in violation of the sixth and fourteenth amendments to the constitution of the United States, and (2) that his conviction should be reversed because the transcript of the proceedings at his trial which was furnished to him did not include the arguments of counsel to the jury.
A store of the Firestone Tire and Rubber Company in Rock Island, Illinois, was broken into during the night of February 17-18, 1965, and three TV sets and a portable AM-FM radio were taken. The stolen property was not recovered.
The defendant was arrested on the charge involved in this case in Davenport, Iowa, on March 23, 1965. There he consulted the attorney who represented him upon this trial, who advised him to waive extradition if he was not guilty. He waived extradition and was returned to Illinois on March 24. He was booked by the Rock Island police on the burglary charge at 11:05 A.M. on March 24 and was taken at once before a magistrate, where he was arraigned and admitted to bail. Immediately thereafter he accompanied the assistant chief of police to the Rock Island detective bureau where he was questioned by the assistant chief. The questions and answers were reduced to writing. When the defendant was asked to sign the statement, he said that he would rather not do so until he had conferred with his attorney. He wrote at the end of the statement: "Verification with atty. I will sign."
At the trial the evidence for the prosecution established that the stolen radio had been kept in a glass display case from which a sliding door had been removed. Latent fingerprints were taken from the glass door and a fingerprint examiner for the F.B.I. testified that one of the defendant's fingerprints was identified to fingerprints on the glass door of the display case. The defendant did not testify, but his brother testified that he and the defendant had gone to the Firestone store about 5 P.M. on February 17 to look for a television set for their mother, and that they were there about 20 minutes, looking at television sets and radios.
At the close of the defendant's case, the prosecution was granted leave to reopen to present testimony concerning the statement made by the defendant. The assistant chief testified that he had advised the defendant that he had a right not to make a statement and had a right to an attorney. He also testified that no force or duress was used and that there was no offer of leniency or reward. The significant portions of the brief statement, which was admitted into evidence without objection, are as follows:
"Q. Since being picked up you have had occasion to use the telephone as many times as you care to?
Q. And you also know that you have a right to call any attorney you care to and seek his advice on this case and charge?
Q. And you know also, Neil, that any statement that you may give to us will have to be voluntary and that you do not have to give any statement unless you so desire?
Q. Neil, have you ever been in the Firestone store in Rock Island ...