APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
WENDT, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
The defendant Atchwood McGarry was indicted for the unlawful possession of a narcotic drug, heroin. (Ill. Rev. Stat. 1969, ch. 38, par. 22-3.) He filed a pretrial motion to suppress physical evidence which was denied after a hearing. After a bench trial he was found guilty and sentenced to a term of two to four years.
On appeal defendant contends: (1) that the court erred in denying his motion to suppress evidence; (2) that he did not voluntarily and understandingly waive his right to a jury trial; and (3) that since he is a narcotic addict and in need of hospital care, it was cruel and unusual punishment to send him to the penitentiary.
Officers Patrick Crowley and Mark Fulla and the defendant testified at the hearing on the motion to suppress. On February 1, 1970, Crowley and Fulla were assigned to a patrol car together. Their tour of duty began at 3:00 P.M. when they were given descriptions of various persons wanted for committing crimes in the area. One description, that of a man wanted for armed robbery, was a male Negro, 18 to 20 years old, five feet three inches to five feet five inches, 150 pounds, wearing a brown corduroy jacket, dark pants, and not wearing a hat. At about 4:00 P.M. while driving in their patrol car the officers saw the defendant 40 or 50 feet from the car; he was walking toward them. He appeared to fit the description of the man wanted for armed robbery since he was of the same physical stature and wore similar clothing. The officers got out of the car and Fulla, who had been driving, called for the defendant to come over to them. The defendant walked over to the car and was almost within arm's distance from Fulla when Fulla realized that the defendant was too old to fit the description of the wanted man. (The defendant was 38 years old.) Fulla started to tell the defendant to "forget it" when the defendant lunged at him, pushed him against the car and ran away. The officers chased him for about two or three blocks, finally apprehended him and placed him under arrest. During the chase officer Fulla saw the defendant reach in his pocket, pull out a tinfoil packet and throw it on the ground. Tests revealed that it contained heroin.
The defendant testified that when he approached the squad car an officer said, "Do you have any guns in your house?" Then officer Crowley, who defendant testified was driving the car, told the defendant that his pocket was "bulged" and proceeded to stick his hand into defendant's pocket and pull out some "dope." The defendant further testified that he didn't know if Crowley put the heroin in his pocket but that he had never seen it before.
In denying the motion to suppress, the court made an express finding that it disbelieved the defendant's testimony.
Before the commencement of the pretrial hearing, defendant's attorney told the court:
"Let the record reflect that this is a preliminary motion to suppress, the defendant heretofore having filed with the Court and tendered to the Court an executed jury waiver.
I am not sure the record reflects that you [the Court] have admonished him."
The court did not admonish the defendant as to his right to a jury trial but immediately proceeded to hear testimony on the motion to suppress. Although defendant signed a written jury waiver form on the date of trial, the record shows that at no point during the entire proceedings did the judge admonish the defendant.
After the defendant was found guilty by the court, the following colloquy took place:
"COUNSEL FOR DEFENDANT: Mr. McGarry [the defendant] is there anything else you wish to say?
THE DEFENDANT: I am not guilty, your Honor.
THE COURT: Is there anything else you wish to say?
THE DEFENDANT: I would like to have a ...