Appeal from the Circuit Court of Cook County; the Hon. ARTHUR
V. ZELEZINSKI, Judge, presiding. Reversed and remanded.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT.
Leroy Baker and Sidney Gammons were charged in separate complaints with theft of less than $150 in money. In a bench trial, the two cases were consolidated and findings of guilty entered in both. Gammons was sentenced to serve nine months in the Illinois State Farm in Vandalia, and Baker to a term of nine months in the House of Correction in Chicago.
Leroy Baker, hereafter called defendant, prosecutes this appeal. He contends that (1) his right to a jury trial was not knowingly and understandingly waived; (2) his right to a fair trial was violated when he was not given competent court-appointed counsel; (3) trial on the merits of the charge against him proceeded without his knowing he was on trial; (4) the court proceedings were so lacking in order that he was deprived of due process; and (5) he was not proven guilty beyond a reasonable doubt.
On June 17, 1968, Sidney Gammons and defendant appeared in the First Municipal District of the Circuit Court of Cook County. When their cases were called, the court gave each a copy of the complaint and told them they were charged with armed robbery, a felony. When the clerk asked, "Are you ready for a hearing?", Gammons asked, "Do we get a chance to talk?" The court answered, explaining that the proceeding was a preliminary hearing. The judge said there was a possibility the State would elect to reduce the charges. The prosecuting attorney then spoke, saying, "The State at this time will file additional charges of petty theft against both defendants." Leave was granted to file the additional charges, with directions that defendant and Gammons each be furnished with a copy of the complaint.
The court then told them they had the right to a continuance in order to hire private counsel, the right to request a jury trial, and the right to appointment of the Public Defender if they were indigent. After receiving an affirmative response concerning appointment of counsel, the judge said: "The court will appoint the Public Defender to represent you. Mr. Scheffler, you may confer with the defendants." A "discussion off the record" between the Assistant Public Defender and the two men followed. There was no recess in the proceedings for defendant to consult with his newly appointed counsel. The court then inquired whether the parties were ready. The Assistant Public Defender answered, "Ready for a hearing," "Not guilty, Jury waived."
Defendant contends that he did not knowingly and understandingly waive his right to trial by jury. There is no indication in the record that defendant knew or understood the consequences of a jury waiver. The additional charge of petty theft was filed before defendant was furnished council. Nothing in the record suggests that defendant participated in the decision to reduce the charge.
[1-6] Waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 82 L Ed 1461, 58 S Ct 1019 (1938). There is no precise formula for determining whether a defendant knowingly and understandingly waives his right to a trial by jury. Each case depends on its particular facts. People v. Richardson, 32 Ill.2d 497, 207 N.E.2d 453; People v. Crable, 80 Ill. App.2d 243, 225 N.E.2d 76. The duty rests on the trial judge to see that election by a defendant to waive trial by jury is expressly and understandingly made. People v. Wesley, 30 Ill.2d 131, 195 N.E.2d 708. It is a duty that cannot be perfunctorily discharged. People v. Surgeon, 15 Ill.2d 236, 154 N.E.2d 253. Where a defendant, as did the defendant here, appears in court charged with a serious offense, and the record does not affirmatively show he knew or was informed of his right to trial by jury, his waiver of jury is not made knowingly and understandingly. People v. Brownlow, 114 Ill. App.2d 458, 252 N.E.2d 685; People v. Bell, 104 Ill. App.2d 479, 244 N.E.2d 321; People v. Turner, 80 Ill. App.2d 146, 225 N.E.2d 65. Compare Boykin v. Alabama, 395 U.S. 238, 23 L Ed2d 274, 89 S Ct 1709 (1969). For these reasons we reverse and remand this cause for a new trial.
This disposition makes unnecessary any discussion of defendant's second, third and fourth contentions. These questions will not occur again in the retrial of this cause.
Defendant's fifth contention is that he was not proven guilty beyond a reasonable doubt. No argument has been made in support of this contention. Noticeable failure to present an argument in support of a contention is waiver of it on appeal. People v. Hamlett, 408 Ill. 171, 96 N.E.2d 547; People v. Adams, 109 Ill. App.2d 385, 248 N.E.2d 748.
Judgment is reversed and remanded for a new trial.
DRUCKER, P.J. and ENGLISH, ...