Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding.
Reversed and remanded.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
The defendant, Theodore V. Panker, was charged with the crime of forgery, tried before a jury and found guilty. The trial court, after denying a new trial and probation, sentenced the defendant for a term of 1 to 4 years in the Illinois State Penitentiary.
On appeal, it is contended that the following errors occurred: (1) that defendant was denied due process of law in that (a) the court's denial of defendant's motion for a continuance had the effect of depriving him of the right to the effective assistance of counsel and (b) the court's denial of defendant's motion for a continuance was an abuse of discretion; (2) the prejudicial conduct of the trial court throughout every stage of the proceedings deprived the defendant of a completely fair and impartial trial; (3) the prejudicial conduct of the prosecutor deprived the defendant of a full, fair and impartial trial; and (4) the court erred in denying motion for mistrial when the word "innocent" was discovered on the inside of the jury box.
Our first consideration is whether the court's denial of defendant's motion for a continuance had the effect of depriving the defendant of his right to the effective assistance of counsel and was an abuse of judicial discretion.
The record discloses that the defendant, along with a co-defendant, were charged with forgery in the same indictment. On May 20, 1968, the defendant and his privately retained counsel appeared before the trial court for arraignment where the following transpired:
Mr. Vogel: "We are making a plea of not guilty at this time, your Honor."
The Court: "Asking for a Jury trial?"
Mr. Vogel: "Asking for a Jury trial. And it is my understanding that the co-defendant is up on the 3rd and intends to present some motions.
"So at this time I would ask the Court to make the next date for this matter also June 3rd, at which time I will present any pretrial motions that I will have."
Mr. Vogel: "9:30, your Honor?"
On the morning of June 3, 1968, both defendants, the attorney for the co-defendant and an assistant State's Attorney, appeared before the court, but defendant's counsel was not present. At this time, the following occurred:
The Court: "Who did you say you ...