APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Daniel L. King was indicted for attempted murder on March 23, 1968, and was arraigned on April 4, 1968. Later, on October 4, 1968, he was indicted for unlawful use of weapons. (Ill. Rev. Stat. 1967, ch. 38, par. 24-1(a)(4).) In a joint trial by jury on all charges he was found guilty of all charges and sentenced to 10 to 20 years for attempted murder, a concurrent term of five to 10 years for the unlawful use of weapons within five years after release from a penitentiary (see Ill. Rev. Stat. 1967, ch. 24-1(b)), and one year in the County Jail for unlawful use of weapons. *fn1 During the trial he was found guilty of contempt of court and sentenced to six months in the County Jail to be served following his discharge from the penitentiary.
Defendant urges many trial errors but the main issues are (1) the improper denial of defendant's motion to dismiss the indictment (No. 68-3502) charging the unlawful use of weapons; (2) the resulting prejudicial error in allowing evidence of defendant's prior criminal record on the trial of attempted murder (Indictment No. 68-1151); and (3) the improper finding of direct contempt.
On March 4, 1968, Officer Gary Cohen observed the defendant seated in a restaurant at 5605 North Broadway. Believing the defendant to be a felon, Officer Cohen asked him to step outside. The defendant stepped outside and was directed by Cohen to walk to a police car parked 20 feet away and place his hands on top of the car. The defendant placed his hands on the top of the car momentarily, turned and started to run and then, when he was eight or ten feet from Cohen, turned and fired one shot from a .38 caliber revolver which missed Cohen.
Cohen pursued the defendant into an alley and they exchanged shots as the defendant fled. Cohen was joined in the pursuit by Detective James Sullivan who was off duty at the time. Sullivan never saw the defendant. The defendant's jacket and wallet were recovered at the scene. The shooting took place at 4:15 in the afternoon.
According to defendant, Cohen questioned him in the restaurant and during the questioning took his coat. Cohen also threatened to kill him as they left the restaurant. When the defendant was getting into the police car outside the restaurant, he turned and fled. Cohen pursued him, firing his pistol. The defendant claims he was not armed at this time. Following his successful escape the defendant obtained a gun from a friend because he was afraid the police were trying to kill him.
At 7:15 that evening James Frick, an off duty policeman, recognized the defendant as the assailant in the shooting that afternoon from a radio broadcast earlier in the day. He called for assistance and then he and several other officers entered the store in which he had seen the defendant. The officers, noticing a large bulge in the right trouser pocket in which the defendant had his hand, grabbed the defendant and seized his right arm. The defendant's trouser pocket contained a loaded .38 caliber revolver.
During trial the court found the defendant in contempt of court for his refusal, on cross-examination by the State, to name the person who supplied him with the gun.
Defendant contends that the unlawful use of weapons charge should have been dismissed under Ill. Rev. Stat. 1967, ch. 38, par. 103-5(a), which provides that a person in custody shall be tried within 120 days from the day he was taken into custody unless delay is occasioned by defendant and other exceptions not pertinent in this case.
Indictment No. 68-1151 charging attempted murder was returned on March 23, 1968, at which time defendant had been in custody since March 4, 1968. Indictment No. 68-3502 charging unlawful use of weapons was returned by the Grand Jury on October 4, 1968. Defendant was still in custody at that time. Defendant was in custody for more than 120 days and it is undisputed that he did not occasion any delay in bringing to trial the unlawful weapons charge.
Ill. Rev. Stat. 1967, ch. 38, par. 3-3, requires, and the State admitted at trial, that both offenses defendant was charged with had to be prosecuted in a single prosecution. Sub-paragraph (b) thereof states:
"If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act."
Defendant contends that when he was indicted for attempted murder, the State had to know that he had a concealed weapon at the time of the offense and that defendant had been ...