APPEAL from the Circuit Court of Kane County; the Hon. REX F.
MEILINGER, Judge, presiding.
MR. JUSTICE MATHERS DELIVERED THE OPINION OF THE COURT:
This is an appeal from the judgment of the Circuit Court of Kane County denying motions for a new trial and for a verdict of acquittal, notwithstanding the jury's verdict of guilty. The trial court imposed concurrent penitentiary terms of 3 to 20 years on the charges of attempted murder, and 1 to 14 years on the charge of attempted armed robbery by the appellant, Anthony Strawder, known also as Levi Kensey, or Slim.
The record reveals that various witnesses for the state testified that early on the afternoon of February 22, 1972, two black men entered a small grocery store of Charles and Josephine Gebelt in Elgin, Illinois. The testimony of Mr. and Mrs. Gebelt and other occurrence witnesses establishes that after the men entered the store, one man asked Mr. Gebelt if he had any chicken wings. After being informed that there were none, he remained in the store, together with the taller man who stood in a corner of the store looking out the window for approximately 10 minutes. Shortly after the shorter man had approached and walked past the checkout counter where Mrs. Gebelt had just checked out two customers, including Mrs. Carol Doyle, the taller man turned around and walked toward her. He stepped over to the checkout counter, and when Mrs. Gebelt looked up from a distance of about 5 or 6 feet, he was pointing a gun at her. He told her to, "Open the cash register." When she did not understand his instruction, she asked, "What?" The gun was fired, and she was shot. The bullet entered her left face between the jaws so that her dentures were broken, and pieces of the bullet lodged in her palate.
When Mrs. Gebelt first turned and looked at the taller man, the gun was pointed at her chest. During the conversation it then moved up to her face and was pointed directly at her when the shot occurred.
Mr. Gebelt heard the shot and ran to the front of the store, where he saw his wife holding her mouth and bleeding from the face. He ran out the door and saw two black men running down the street. He then returned to the store and called the police. One or both of the men got into a car parked at the curb in which another person was sitting, and they drove away.
On May 2, 1972, Mrs. Gebelt went to a lineup at the Geneva County Jail. The lineup was composed of six black men of average height. She identified one of the men as the tall one who had entered the store and had shot her. At the trial she pointed out the appellant as being the same person. Carol Doyle also identified the defendant at the trial.
The defense offered two alibi witnesses, the brother of the accused and his wife, both of whom testified that the defendant was at their home in Chicago, in bed with the flu, on the day of the crime. They also offered one occurrence witness, who was unable to say that the defendant was the man involved in the shooting, or that he was not. Also testifying was Roy Lasswell, a public defender, who was present at the lineup when Mrs. Gebelt identified the defendant. The accused did not take the stand.
On appeal, the defendant has urged that the trial court lacked jurisdiction, because the defendant had not waived his right to be indicted, that defendant was not proven guilty beyond a reasonable doubt, that prejudicial error was committed when inadmissible evidence of defendant's prior criminal record was brought out by the state, and that the trial court erroneously imposed concurrent sentences for crimes arising out of the same conduct. In the alternative, appellate requests that in lieu of vacating the sentence for attempted armed robbery, the sentence should be reduced to the penalty for a Class 4 felony.
Supreme Court Rule 401(b)(3) provides that the judge shall personally address the defendant, inform him and determine that he understands "that he can be prosecuted for the offense only after indictment by a Grand Jury unless he waives indictment."
The record clearly shows that Mr. Strawder was asked by the court if he understood he had a right to be indicted by the grand jury, and he replied, "Yes." The court then said, "You are waiving your right to be indicted by the Grand Jury and asking those charges be brought by Information, is that correct?". Mr. Strawder did not respond to this personally, but his defense counsel said, "I have explained that to him, Your Honor, about his indictment and he waives that right."
Appellant maintains that this waiver is defective because he did not respond personally. Cases cited by appellant do not support this contention. In People v. Culbert, 69 Ill. App.2d 162 (1966), the defendant was not represented by an attorney. When the judge asked him about waiver he said, "It is up to you." The court then said, "Well, it is not up to me, it is up to you, if you want to waive, I will accept your waiver." The defendant then said, "Well, that will be all right." In our case, the appellant was represented by counsel, and the explanation and response were much more positive by both the defendant and his counsel.
In People v. Cimino, 45 Ill.2d 556, 560 (1970), the appellant's conviction was affirmed when the review court stated the accepted principle of law that, "[t]he general rule is that the failure of a defendant to make his appropriate motion in the trial court, thus not preserving the question for review, is deemed to be a waiver of the question." In the instant case, no such motion was made by the appellant.
The state cites the case of United States v. Pate, 430 F.2d 639, 641 (7th Cir. 1970), where the court said, "While a defendant may waive Grand Jury indictment under Illinois Revised Statutes, Chapter 38, Section 111-2, failure to make such a waiver does not affect the fairness of the trial."
In People v. Sailor, 43 Ill.2d 256, 260 (1969), the court said, "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 ...