Appeal from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial, defendant was found guilty of burglary and was sentenced to the penitentiary for a term of two to four years. On appeal he contends that the trial court erred in (1) accepting his jury waiver, and (2) admitting evidence in violation of defendant's Fifth and Sixth Amendment rights, as set forth in Miranda v. Arizona, 384 U.S. 436 (1966).
The prosecuting witness, Arthur J. Arthur, owner of Cohen's Department Store at 739 South California Avenue in Chicago, testified that on January 26, 1967, he closed his store and, upon returning on January 28, 1967, he found the iron gates on the front window torn off, the window glass broken, and no merchandise left. He did not see anyone take the merchandise.
Police Officer Robert Keating testified that about 1:45 a.m. on January 28, 1967, he and his partner were cruising in their squad car in the area of California and Lexington. When about 60 feet away, they saw defendant and another man come out of Cohen's Department Store, carrying what appeared to be clothing. The police officers chased both men. Defendant was caught and, after being told at gunpoint to stand still, he dropped some clothing. Defendant was then searched and handcuffed.
Officer Keating had a conversation with defendant before they entered the squad car, in which "I advised him that he had the right to remain silent, that anything he might say might be used against him in future proceedings; that before any statements were taken, he was entitled to an attorney; and if he did not have an attorney, that he would be appointed one before any statements were taken." Officer Keating then asked him if he understood, and defendant said "yes." The officer further said that after they entered the squad car "I asked him what he was doing in the store. He replied that he was in the store, he saw other people in there and that they were taking things and he thought he would too."
Police Officer Arthur Hajek testified that he was Officer Keating's partner. He saw defendant Washington coming through a window at 739 South California, carrying a bundle under his arm. Another person came out before defendant, and while Officer Keating was chasing defendant, he unsuccessfully chased the other man. On cross-examination Officer Hajek did not recall testifying before the grand jury that he saw "one male negro coming out of the front showroom," and this was the man apprehended by Officer Keating.
David Selig, an Assistant State's Attorney for Cook County, also testified for the State. He was riding with two other police officers in a squad car on the night in question and saw two men come out of the department store. He saw defendant's arrest but did not see anything in defendant's hands. He further testified, "The person I saw exit the window is the same person now on trial George Washington and he is the same one I saw the arresting officer have in custody."
Defendant testified that he was 21 years of age and on January 28, 1967, he was on his way home from a poolroom when he was arrested at 739 South California Avenue. He did not at any time enter Cohen's Department Store, and the shirt and overalls that he was found carrying at the time of his arrest were not stolen, and he "got them off the ground couple feet before the store." After he picked them up "a fellow jumped out of the window and all at once, the police came and shot, and he said `Hold it' and then I dropped the shirts on the ground and threw my hands up in the air and then he came down and said, `Where is your partner?' I said, `I don't have a partner.' He said, `Who is that that jumped out of the window?' I said, `I don't know.' Then the other one went down the street and I was up there, standing up talking to the other one."
Considered first is defendant's contention that the trial court erred in accepting a jury waiver. At the trial defendant was represented by John D. Dillner, an Assistant Public Defender. The report of proceedings shows that when the case was called for trial, the following colloquy took place:
Defense Attorney: "Defendant is ready for trial."
Prosecutor: "State is ready."
Defense Attorney: "Defendant has executed a jury waiver and at this time I will tender it to the court."
Prosecutor: "Let the record show the defendant says he knows ...