Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Judgments affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Defendants were found guilty of armed robbery in a bench trial, in which defendant, Alfred Luckey, was sentenced to serve a term of one to four years in the penitentiary and defendant, Roscoe Hannah, two to five years. The defendants seek to reverse their convictions upon the following contentions:
(1) That the trial court erroneously accepted their jury waiver which was not understandingly made in open court; and
(2) That the evidence did not establish their guilt beyond a reasonable doubt.
With regard to the first issue, we think there is no merit to the defendants' contention. The record discloses a colloquy between the trial judge and the defendants. The trial judge asked both men whether they knew of their right to a jury trial, what the right consisted of and whether they were willing to waive that right and be tried by the judge. To each of these questions the defendants answered that they understood what was meant by a jury waiver and consented to be tried by the judge. There is nothing in the record to indicate that they did not hear or understand what was said to them about a jury trial. The defendants' right to a jury trial was understandingly waived and the trial court's explanation of that right was adequate.
No definite formula has been established to determine whether an accused has understandingly waived his right to trial by jury. The decision in each case must rest on the particular circumstances of each case. People v. Wesley, 30 Ill.2d 131, 195 N.E.2d 708 (1964); People v. Bell, 104 Ill. App.2d 479, 244 N.E.2d 321 (1969). The cases relied upon by defendants are distinguishable in that in those decisions the accused did not have an adequate understanding in order to properly waive a jury trial. In the instant case the record shows that defendants adequately understood that they were foregoing a trial by jury.
The second issue requires a review of the evidence which supported defendants' convictions. The crime occurred on February 14, 1966, sometime after 3:00 o'clock in the afternoon at the Wallis Department Store in Chicago. The complaining witness was Felipe Rodriguez, who was the manager of the store. He stated that both defendants entered the store at the same time with Luckey going to the shoe department and Hannah walking around in the paint department. The witness was stationed behind the cash register and his helper, Eugene Carter, was engaged in assisting Luckey, who was looking for a pair of shoes. After browsing around, defendant Hannah left the store but returned. Luckey had a pair of shoes and both defendants were inquiring of Carter as to the price of a leather coat.
Rodriguez turned his back and was surprised by Hannah, who placed a gun behind his head. He felt the gun but did not see it. They proceeded to the cash register which was opened by Rodriguez. Hannah handed the gun to Luckey who then ordered Carter to come over. According to Rodriguez, Hannah then ordered the manager and his helper to a washroom in the back of the store. Hannah had the gun at this time. The witness and Carter went to the washroom and Luckey warned them not to move or he would kill them. Rodriguez said Luckey opened the door and warned them on three separate occasions. About 10 or 15 minutes later, another helper, Robert Carr, opened the washroom door. Rodriguez called the police and ascertained that about $300 was missing from the cash register and about 25 silver dollars had been taken.
The witness said he saw defendant Luckey in a lineup at a police station on February 16, 1966. He noticed that Luckey was wearing a style of shoes that was sold in the store. The witness stated that when Luckey entered the store on February 14, 1966, he was wearing brown shoes but later he was wearing a pair of Stacey brand shoes which Carter had been showing Luckey in the shoe department. The witness stated he saw Hannah in the police station on February 19, 1966. He had never seen either defendant prior to the robbery.
On cross-examination, the witness explained that the store sold many different brands of shoes besides the brand defendant Luckey was wearing. Rodriguez said that the store was busy before and at the time of the robbery. His description of Hannah was that he was wearing a three-quarter length dark coat with a persian lamb hat which the witness described as a "Prussian cap" that was greenish in color. The only thing that Rodriguez could recall about defendant Luckey was that he was wearing a hat and the testimony concerning his shoes. The witness described the store as being about 60 feet square with the cash register approximately in the middle. He stated that he was too distant from the shoe store to hear any conversation between Luckey and the helper Carter.
The witness did not recall the description he gave to the police on the date of the robbery. On the 16th of February he was picked up by a police officer and taken to a station at 8:00 o'clock in the evening. At the station he was shown four or five men in a lineup from which he picked out the defendant Luckey. The only thing the witness recalled of the clothes Luckey was wearing was a pair of Stacey brand shoes, which were noticed because someone asked the defendant what type of shoes he was wearing. The identification of Hannah was at a police station on February 19, but the witness could not recall what type of clothing Hannah was wearing on that date. Rodriguez could not remember whether he had testified to the grand jury that the defendants had a shotgun at the time of the robbery.
The State called Eugene Carter, the helper in the store, who testified that the defendants walked into the store shortly after 3:00 o'clock on the afternoon of February 14, 1966, and were looking at merchandise. The defendant Luckey asked to see some shoes and Hannah left the store after looking at other merchandise. Defendant Hannah then reappeared in a few seconds and was walking around the store. Carter showed Hannah where the washroom was after the latter had requested directions. Carter stated that Luckey had tried on a pair of black Stacey shoes, size 10 1/2, while carrying his brown shoes. Carter then noticed that Hannah was standing behind Rodriguez who was at the cash register of the store. The witness said Hannah was holding a shotgun, which he described as sawed-off, single barrel, twelve gauge shotgun. Carter was about five or six feet from the cash register. Luckey moved over to the cash register and Hannah passed the gun to him. Luckey pointed the weapon at Carter and took the witness and Rodriguez to the washroom where they were told to lie down by Luckey. Carter's last glimpse of Hannah was of going behind the cash drawer and then walking toward the front of the store. The witness said that Luckey came back to the washroom three or more times, warning the witness and Rodriguez if they moved, he would shoot them. After about 10 or 15 minutes in the washroom, a part-time worker, Robert Carr, opened the washroom door.
Carter stated further that he had never seen either defendant prior to the robbery. He subsequently viewed these men at the police lineups where he identified them as the two men who committed the robbery. Carter said he picked out defendant Luckey at a police station on February 16, at a lineup consisting of five negro males. Carter said someone asked Luckey what type of shoes he was wearing and defendant replied they were a Stacey brand. A few ...