APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
In October 1964 defendant was found guilty at a bench trial of the crime of attempt murder and was sentenced to a term of fifteen years to twenty years in the penitentiary. That judgment was affirmed on direct appeal to this Court in February 1966: People v. Kane, 68 Ill. App.2d 486.
On August 5, 1969, defendant filed, pro se, a Petition pursuant to the Post-Conviction Hearing Act wherein he alleged that he was denied the privilege of testifying as a witness in his own behalf at the trial. (Ill. Rev. Stat. 1969, ch. 38, pars. 122-1 et seq.) The Petition alleged in part:
"I was denied the privilege to testify at my trial in behalf of my defence, `I was denied' the equal protection of the law,' and the Due Process of the Law.' A violation of the Fourteenth Amendment. At no time did I request to not testify in my own behalf. Upon my request to the judge to testify, `the judge said `you say what you please.' After I finish, the judge said `I appreciate the statement you made but you choose not to testify,' there is no proof in the record that I choose to not to testify.' The record must show, that I understandingly and intelligently waiver this Constitutional Right * * *." (Sic)
On November 6, 1969, an appearance was filed by private counsel who had been appointed to represent defendant on the post-conviction petition.
A motion to dismiss the petition was filed by the People, on the grounds that the petition failed to allege any constitutional question as required by the Post-Conviction Hearing Act, and further that the issue raised in the Petition was res judicata since it could have been raised on appeal to this Court from the judgment of conviction. Hearing on the People's motion was held on April 5, 1970, after which the court entered an order dismissing the defendant's Petition.
Defendant appealed the dismissal of his Petition directly to the Supreme Court, which transferred the cause to this Court. (People v. Kane, Ill.Sup.Ct., Doc. No. 43633, Oct. 4, 1971; see also Sup.Ct.Rule 651, as amended July 1, 1971.) On appeal defendant has altered his position from that of having been unconstitutionally denied the privilege of acting as a witness in his own behalf at trial, to that of having been denied his constitutional right to remain silent by reason of the trial court's comment that he chose not to testify in his own behalf at the trial.
It appears that at the conclusion of the final arguments of counsel during the trial the court stated, "I'll have to confine myself to the evidence in this case," and proceeded to summarize that evidence. At the conclusion of the summarization, the court stated, "Based on this evidence the Court finds the defendant Monroe Kane ," at which point the defendant interrupted the court and stated, "Judge, just a minute," but the court continued, " guilty of the offense of attempt to commit murder in the manner and form as charged in this indictment. There will be a judgment on the finding."
The defendant again interrupted the court, but the court called for a hearing in aggravation and mitigation, and the defendant continued to interrupt counsel during that hearing, by commenting on the matters brought out therein. At the conclusion of the hearing, the court sentenced the defendant to a term of fifteen years to twenty years in the penitentiary, immediately after which the following colloquy occurred between the defendant and the court:
"DEFENDANT KANE: Judge, I didn't have anything to say, I would like permission to say something.
THE COURT: Yes, you may say what you please.
DEFENDANT KANE: I was acting in self-defense, the officer was pointing the pistol on me, he grabbed me in the collar and struck me, I wasn't doing nothing, I was walking down the street and hadn't done nothing, I was walking down the street minding my own business and this officer followed me from West End and on down the alley, and this lady is speaking the truth because she always comes out every evening on that porch, quite naturally she couldn't recognize what time it was, so, the statements she made is true.
THE COURT: Well, I appreciate the statement you made but you choose not to testify, you had competent counsel
DEFENDANT KANE: But I'm being convicted on perjury, all these statements here that you ...