APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendants were found guilty after a bench trial of the offense of armed robbery. Judgment was entered and defendant Collins was sentenced to three to eight years and defendant Washington was sentenced to two to five years. On appeal defendants contend (1) that they did not knowingly and intelligently waive their right to a jury trial and (2) that the prosecutor's improper cross-examination of defendant Washington violated their constitutional rights.
Defendants do not challenge the sufficiency of the evidence. The evidence may be briefly summarized. On January 3, 1966, at 1:00 A.M., the defendants and a Rose Mary Jones, a co-indictee with defendants, *fn1 entered the apartment of Jesse Powers. After a couple of minutes defendant Collins demanded money. When Mr. Powers told the defendants that he did not have any money Collins hit him in the face and broke his glasses. The defendants then tied Mr. Powers to the bed and Collins hit him with a bayonet blade in the head and arms and threatened to kill him. Washington then lit a cigar, stuck it near Mr. Powers' eyes and threatened to burn them out if he did not hand over his money. Collins proceeded to gouge Mr. Powers in the groin with a butcher knife. Defendants continuously threatened Mr. Powers throughout the robbery. Defendants ransacked the apartment and took approximately $2,000 worth of cash and merchandise.
Mr. Powers positively identified the defendants as the robbers both at a lineup and at trial. Rose Mary Jones, testifying for the State, also identified the defendants as those involved in the robbery.
Defendants contend that they did not knowingly and intelligently waive their rights to a jury trial. After defendants' counsel stated that he was ready for trial, the following colloquy occurred:
"MR. FISHMAN [defendants' counsel]: A bench trial. May we have a jury waiver?
THE COURT: You know what a jury trial is?
DEFENDANT COLLINS: We are having a bench trial, aren't we?
MR. FISHMAN: That's right.
THE COURT: I want to make sure you are waiving a jury trial, you know what a jury trial is. You are waiving it and being tried by the bench rather than by the jury?
THE COURT: All right, let the jury waivers be recorded." During the aforesaid colloquy defendant Washington remained silent. However, as shown, his counsel stated that there would be a bench trial and asked for a jury waiver form which Washington signed. In People v. Sailor, 43 Ill.2d 256, the court stated:
"The record reveals that defendant's counsel, in her presence and without objection on her part, expressly advised the court that the plea was `not guilty' and that a jury was waived. An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to ...