APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Appellant, Dennis Kneller, was indicted by a Winnebago County grand jury on one count of burglary, and two counts of aggravated battery (one by using a deadly weapon and the other by causing great bodily harm). At a bench trial, appellant was found guilty of burglary and aggravated battery while using a deadly weapon. Appellant was sentenced to 3 to 9 years' imprisonment on the burglary conviction and 1 to 5 years' imprisonment on the aggravated battery conviction, both sentences to run concurrently. Appellant argues on appeal that he was denied his constitutional right to a jury trial, that he was not proven guilty of burglary beyond a reasonable doubt, and that he was improperly sentenced.
At approximately 12:45 A.M. on July 13, 1973, Richard and Carol Wedekind returned to the apartment building in Rockford which they lived in and managed. Upon noticing muddy footprints at the bottom of the stairs to the basement and because a tenant had previously reported some undergarments and a T-shirt missing from the basement, they investigated.
In the basement the Wedekinds found that the locked door from the boiler room to the tool room/storage room area had been taken off its hinges. They discovered the appellant in the tool room/storage room area dressed in a woman's two-piece bathing suit. The Wedekinds asked the appellant who he was and what he was doing there, but got no response. They walked back into the boiler room and Mr. Wedekind attempted to hold the unhinged door shut to prevent the appellant from leaving while Mrs. Wedekind went to call the police.
The appellant managed to force his way through the door, and in doing so struck Mr. Wedekind on the head with a "screw type dog stake." In the ensuing struggle, the appellant again struck Mr. Wedekind on the head with the stake and fled. Mr. Wedekind then went upstairs, and shortly after the police arrived, he was taken to a hospital, where he received four stitches in his head.
The police discovered a bankbook and billfold, both with the name Dennis Kneller therein, and a pair of men's underwear outside the building. The Wedekinds identified the appellant in court as the man they had seen in the basement.
The issues on appeal appeal are:
I. Was appellant denied his constitutional right to a jury trial?
II. Was appellant proven guilty of burglary beyond a reasonable doubt?
III. Was appellant properly sentenced?
On the day of trial, appellant made a motion for waiver of jury trial as to the burglary count only. The trial court denied the motion, and then appellant made a motion for waiver of jury trial as to all three counts of the indictment. The trial court granted this motion. Appellant contended in his motion for a new trial that the trial court erred in forcing him to elect either a jury trial or a bench trial as to all three counts. He argues that since he was forced to choose in this manner, he was denied his constitutional right to a jury trial as to the aggravated battery counts.
• 1 Appellant never made a motion for severance, even though the trial judge indicated that he would have granted such a motion. Under the Criminal Code, appellant could easily have made such a motion. (Ill. Rev. Stat. 1973, ch. 38, par. 114-8.) The three offenses here were properly joined, pursuant to section 111-4(a) of the Criminal Code, which states in pertinent part: "Two or more offenses may be charged in the same indictment * * * in a separate count for each offense if the offenses charged * * * are based on the same act or 2 or more acts which are part of the same comprehensive transaction." (Ill. Rev. Stat. 1973, ch. 38, par. 38, par. 111-4(a).) Severance of the counts for trial is to be granted if it appears that prejudice will result otherwise. (Ill. Rev. Stat. 1973, ch. 38, par. 114-8.) The question is within the discretion of the judge. Simply because the trial judge indicated that he would have granted a motion to severance, had one been made, does not mean that the judge found prejudice in the joinder of these offenses for trial or that it would have been an abuse of discretion to deny the motion. Defense counsel simply argued, in his motion to waive a jury trial as to the burglary count alone, that testimony adduced regarding the burglary count would be prejudicial on the aggravated battery counts. This conclusionary statement would certainly not be enough for this court to find an abuse of discretion by the trial court in denying a motion for severance if one had been made. Therefore, appellant's argument that he was penalized for labeling his motion incorrectly (he called it a motion for waiver of jury trial) must fall.
• 2 The main thrust of appellant's argument, though, is that he was denied his constitutional right to a jury trial. The existence of that right is beyond doubt, but there is no constitutional right to waive a jury trial. (Singer v. United States, 380 U.S. 24, 13 L.Ed.2d 630, 85 S.Ct. 783.) In Illinois, a defendant does have a statutory right to waive a jury trial. (Ill. Rev. Stat. 1973, ch. 38, pars. 115-1, 103-6; People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468.) However, as stated above, the appellant does not have a right to have offenses validly joined in an indictment severed for trial if no prejudice is found from their joinder. Also, Spegal involved a waiver of jury trial where there was only one charge against the defendant. Since the appellant had no right to separate trials on the charges here, and reading sections 111-4(a), 114-8, and 115-1 of the Criminal Code together (Ill. Rev. Stat. 1973, ch. 38, pars. 111-4(a), 114-8, 115-1), it is seen that the appellant had to either ...