APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The defendant, Billy W. Johnson, was found guilty and convicted of arson in a bench trial. He was sentenced to a term in the penitentiary of two to ten years. The defendant appeals that conviction.
The facts are not in dispute, and, therefore, will be briefly summarized. On November 7, 1968, at approximately 8:30 P.M. the defendant was involved in an altercation with a Samuel Duchen, the president of Liquor Base, Inc., a retail liquor store and recreation room which operated in a leased building in Summit, Illinois. The altercation occurred on the premises of Liquor Base and ended when defendant ran away. Approximately one hour later at 9:30 P.M. the defendant returned to Liquor Base and entered that portion of the building operating as a liquor store and bar. He was holding a bottle containing a flaming torch which he threw in the direction of the bar. The building began to burn immediately. Ultimately, the interior walls of the building and the fixtures and personalty therein were destroyed by the fire.
The defendant was subsequently arrested, and at the time of his arraignment a public defender was appointed to represent him. Because of questions raised regarding his competency, a hearing was held before a jury on this issue, but they were unable to reach a finding. A second jury was impaneled, and after hearing evidence a finding of competency was returned. The defendant was tried, and the previously mentioned conviction resulted.
On appeal the first issue raised by the defendant is that the trial court should not have accepted his jury waiver, since such waiver was not made in accordance with the relevant statute. The statute in question is Ill. Rev. Stat. 1967, ch. 38, par. 103-6. It reads as follows:
"Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court."
The colloquy with both defendant's counsel and defendant regarding defendant's waiver was as follows:
"MR. DOWNS: * * * I attempted to speak to him briefly today, Judge, and my experience is similar in that he only indicated to me his desire to have a bench trial.
THE COURT: Very well. Let's proceed.
MR. DOWNS: Judge, I don't believe I am ready to proceed today.
THE COURT: Mr. Johnson has been asking for trial every time he comes out here. We have gone through Mr. Darragh, Mr. Zwick, Mr. Himel, now, please, give this man a trial, Mr. Public Defender.
THE COURT: Well, we are going to hold you to trial. Mr. Johnson, you wish to waive your right to a jury trial and submit your case to this Court?
DEFENDANT: Why don't you have the trial today? I have been having
THE COURT: I want to ask you now, do you want to be tried by ...