APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Brooks, was indicted for murder. On April 28, 1972, after a bench trial, he was found guilty of involuntary manslaughter and sentenced to a term of 3 to 10 years in the penitentiary.
In this appeal he contends that (1) he did not knowingly and intelligently waive his constitutional right to a trial by jury, (2) the evidence was insufficient to prove him guilty of involuntary manslaughter beyond a reasonable doubt, and (3) the sentence he received is excessive and should be reduced.
The evidence discloses that the defendant shot and killed Leonis Steinys on the night of July 24, 1971. Defendant raised the justification of self-defense.
We first consider whether the record adequately shows a knowing and intelligent waiver of the basic constitutional right to a trial by jury. The transcript discloses that the defendant initially demanded a jury trial. On April 24, 1972, eight jurors had been selected. The following morning defense counsel informed the court out of the presence of the jurors that he felt the defendant could not receive a fair trial because the prosecutor had excused every black prospective juror in a proceeding where a black man was charged with killing a white man. He therefore moved to withdraw the defendant's request for a jury trial and to submit the case to the court. The prosecutor replied that defendant had the right to waive a jury and submit the issue of his guilt or innocence to the court, but he pointed out that he was merely exercising the State's right to excuse jurors according to law. The prosecutor further submitted that, in view of the charges which defense counsel directed at him, the cause be transferred to another courtroom to alleviate any ill feelings. Defense counsel stated he saw no reason to transfer the case because he felt that the defendant would have a fair and impartial trial before the court. The court therefore denied the assistant State's Attorney's motion to transfer the case. When the defendant was brought into the courtroom the following occurred.
"THE COURT: * * * I hold in my hand a document which is known as a waiver of a jury (indicating). Now I must inform you, Mr. Brooks, that you have a right to a jury trial as you are aware, in which your guilt or innocence will be decided by twelve people; and as a matter of fact, we were just engaged in selecting a jury to determine your guilt or innocence.
Now, I understand that you want to give up your right to a jury trial, is that right, you don't want a jury trial?
THE WITNESS: I want a jury.
MR. PAYNE (Defense counsel): I advised you to waive a jury.
THE COURT: You don't want a jury or you want a jury.
MR. PAYNE: I advised you to waive a jury, now you can do that if you want to.
THE WITNESS: I will waive the jury.
THE COURT: Now you know, of course, you have a right to a jury knowing you have a right to a jury you are still giving up your right, is that right, you are not exercising your right?
THE WITNESS: I didn't know what I signed. I can't ...