APPEAL from the Circuit Court of Kane County; the Hon. PAUL W.
SCHNAKE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant herein waived indictment and was charged by an information for the sale of a controlled substance, amphetamine, to a special agent of the IBI. On May 22, 1972, the defendant waived a jury and on June 7, 1972, he was tried in a bench trial in the circuit court of Kane County. He testified in his own behalf; was found guilty by the court; applied for probation and was placed on probation for a period of 4 years.
In this appeal the defendant raises two issues: (1) The evidence was insufficient to convict him; and (2) the trial court erred in proceeding to a bench trial without a knowing, understanding, and intelligent jury waiver from the defendant. We will consider the second contention first.
As indicated above, the defendant appeared in court on May 22 together with his privately retained counsel. At that time the State's Attorney stated "I am presenting to the court at this time a waiver of trial by jury which has been signed by the defendant and witnessed by his attorney, Mr. Rogers. I ask that the court inquire and have him acknowledge the same." The court then proceeded to inquire of the defendant and his counsel as to the jury waiver. The court asked defendant's counsel if his name as a witness was on the waiver, he asked the defendant if his name was on the waiver, and specifically asked the defendant if he was waiving his right to a trial by jury and if this was his voluntary act. The defendant replied in the affirmative, in open court. The matter was then set for hearing on June 6, 1972.
Counsel for the defendant has cited a number of cases relative to the waiver of jury. No useful purpose would be served in discussing them in detail, but in this court's opinion they are not applicable. Indicative of the general tenor of the cases cited by the defendant is People v. Baker (1970), 126 Ill. App.2d 1, 262 N.E.2d 7. In Baker the court stated that no precise formula could be used for determining whether a defendant knowingly and understandingly waived his right to a trial by jury. Further, in Baker, the waiver of the jury consisted merely of the public defender, who had just been appointed for defendant, stating to the court, "* * * not guilty, jury waiver." The court held in Baker that where there was no showing of the right to trial by jury the waiver was not knowingly and understandingly made. In a supplemental opinion in Baker the court held that People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, was not applicable to the facts in the case before it.
Where the record is silent as to the waiver of jury in any fashion the courts have held that a waiver was improperly made. See People v. McKinney (1970), 126 Ill. App.2d 339, 261 N.E.2d 797, where the waiver was made by counsel not in the presence of the accused; People v. Boyd (1972), 5 Ill. App.3d 980, 284 N.E.2d 699, factually similar to Baker; People v. Brownlow (1969), 114 Ill. App.2d 458, 252 N.E.2d 685, where the court held defendant's silence was not sufficient to constitute a waiver; People v. McGraw (1969), 115 Ill. App.2d 444, 253 N.E.2d 518; People v. Rosen (1970), 128 Ill. App.2d 82, 261 N.E.2d 488, where the court again said that a waiver of jury may not be presumed from a silent record.
However, in People v. Sailor (1969), 43 Ill.2d 256, 260, 253 N.E.2d 397, the supreme court set forth the law somewhat succinctly relative to a waiver by defendant's counsel in the presence of the defendant, stating:
"* * * 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 waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action."
Since the decision in Sailor there have been numerous cases on the application of the principles therein enunciated. People v. Lewis (1973), 13 Ill. App.3d 688; People v. Closson (1973), 13 Ill. App.3d 878; People v. Gray (1973), 14 Ill. App.3d 1022, 304 N.E.2d 111.
Defendant has cited People v. Spates (1971), 132 Ill. App.2d 902, 270 N.E.2d 848, and People v. Gaston (1971), 132 Ill. App.2d 900, 270 N.E.2d 846. Neither of these cases are applicable to the facts before us as the only evidence therein was solely a written jury waiver, with no statement as to such waiver either by or in the presence of the defendant.
As indicated above, the State's Attorney asked the judge to inquire if the defendant wished to waive a jury. The court thereupon inquired of the defendant and his counsel as to whether or not they had signed the jury waiver and if it had been signed voluntarily by the defendant, to which the defendant replied in the affirmative.
• 1 We therefore find that the defendant knowingly and intelligently, both personally and through his privately retained counsel, waived the jury herein.
• 2, 3 We turn then to the first contention of the defendant, that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. Defendant asserts that actually he is charged with being an aider and abettor and as such a conviction may not stand, based on mere presence at the scene of a crime. The defendant was properly charged as a principal even though he was only an accessory to the crime. (People v. Heuton (1971), 2 Ill. App.3d 427, 276 N.E.2d 8.) In People v. Thicksten (1958), 14 Ill.2d 132, 150 N.E.2d 813, where the same argument was raised, the court there said at page 134:
"* * * Plaintiff in error argues there is no direct evidence in the record that he did any affirmative act in connection with the crime or joined in a common design to commit it. The contention cannot be sustained. There is more shown by this evidence than mere presence at the scene of the robbery and a negative acquiescence therein. Plaintiff in error was closely ...