APPEAL from the Circuit Court of Cook County; the Hon. MAURICE
W. LEE, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
This is an appeal by defendant-appellant, Aubrey Scott (hereinafter defendant), from his conviction of petty theft for shoplifting, for which he was fined $50. He paid the fine and timely filed his notice of appeal. He had been arrested without a warrant at the scene of the incident. A few hours later, he had posted $100 in cash (10% of the pretrial bond of $1,000 prescribed by Supreme Court Rule), and had been freed from custody with a first court appearance scheduled for 11 days later. On the scheduled date he duly appeared in court, but he was without counsel. The court proceeding began as a preliminary hearing on the existence of probable cause to charge him with the offense. But, when he indicated to the court that he was then ready for trial, the court ordered him arraigned, and he pleaded not guilty. After having been advised of his right to a jury trial, he waived a jury. His bench trial followed immediately and resulted in his conviction and sentence. At no time during the entire proceeding was he never advised of any right to be represented by counsel. This is the issue which he presents as reversible error on this appeal.
In detail, the facts are as follows: On the evening of 19 January 1972, defendant, then 52 years old, was arrested by a Chicago police officer for "shoplifting" at the F.W. Woolworth Company's store at 211 South State Street, Chicago, Illinois, pursuant to the charge of a store security guard. Early the following morning, defendant posted the prescribed bond of $1,000 by depositing $100 in cash, and was released from custody with a first court appearance scheduled for 31 January 1972. The complaint, filed by the security guard on 21 January 1972 in the Municipal Department, First Municipal District of the Circuit Court of Cook County, Illinois, charged defendant with the theft, at the time and place mentioned above, of a sample case and an address book of the value of $150 or less (specifically, of the value of $13.68), which was the property of the Woolworth Company, with the intent thereby to deprive the said Company permanently of the use and benefit of the said property all in violation of section 16-1(a) (1) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 16-1(a) (1)).
On 31 January 1972, defendant appeared in open court as scheduled but without counsel. The court advised defendant that he was charged with the offense of theft. The court then inquired as to whether defendant was going to be ready for trial. Up to this point, the proceeding was clearly a preliminary hearing on the existence of probable cause to charge defendant with petty theft and, if so, to grant leave to complainant to file the complaint.
Defendant, however, understood the court to be asking whether he (defendant) was presently ready for trial, and defendant said that he was. When the State answered ready, the court ordered defendant to be arraigned. The clerk first again informed defendant that he was charged with the offense of theft, and then inquired whether defendant was ready for trial, to which defendant answered that he was. Called upon to plead to the charge, defendant pleaded not guilty and then orally waived a jury trial. His bench trial immediately proceeded. At no time during the entire proceeding was defendant ever advised that he had a right to counsel and, if indigent, a right to appointed counsel except where, in the latter event, the penalty upon conviction is a fine only.
The sole witness for the State was William Bray, the security guard at the Woolworth store. He testified that on 19 January 1972, he was on duty at the store; he saw defendant approach a salesgirl and heard defendant ask the girl to unlock an attache case; the girl did so; defendant then walked around the store for about 15 or 20 minutes, carrying the case and holding a $10 bill in his hand; while defendant was walking around, he picked up an address book and put it in his pocket; defendant passed by salesgirls as he walked around the store. The guard testified further that he (the guard) then walked out of the store onto State Street; a few minutes later, defendant walked out of the store onto State Street, still carrying the attache case; the time was about 6 p.m.; the witness identified himself and ordered defendant back into the store; defendant said the case belonged to him and there were a number of articles in the case which defendant said belonged to him and which defendant had put into the case before leaving the store. The witness identified People's Exhibit 1 as the case involved, and said that the case was the property of F.W. Woolworth Company and that it was priced for retail sale at $12.95. The State thereupon rested its case-in-chief.
Defendant testified in his own behalf as follows: He had placed articles of his own into the case to see whether they would fit, which they did. He walked around the store carrying the case with his articles in it and looking for the salesgirl who had given the case to him. The salesgirl did not work behind the counter from which she had handed him the case, but rather stood near the counter. He is partially blind and he could not see the salesgirl. Suddenly, Bray came into the store through the State Street door, grabbed him by the wrist, and said: "You are a shoplifter." Defendant replied that he was not; he had come to buy a case and was looking for the salesgirl who had handed him the case for inspection. He showed Bray that he had money with which to buy it. After a second security guard had come up behind him and grabbed his hand, the police came and took him to jail.
The State declined any cross-examination, presented no rebuttal testimony, and rested its case. The court indicated that there were things it wished to know, so the prosecutor suggested that the court question defendant. The court first asked where defendant had been stopped, and noted that defendant had testified that he had been stopped in the store and had never gone out onto State Street. The court then asked how much money defendant had with him when he had been stopped, and whether defendant had offered any money to anyone. Defendant replied that he had almost $300 in his pocket and that he had the $10 bill in his hand to pay the salesgirl that amount or whatever larger amount she might indicate.
At that point, the court said: "I don't believe you, sir. Finding of guilty. What do you [the prosecutor] have in aggravation?" The prosecutor stated that, in 1957, defendant had been convicted of petty larceny and had been sentenced to 30 days in the House of Correction and that this was defendant's most recent prior conviction. Defendant then noted that this conviction had occurred 13 years before. (In fact, it must have occurred either 14 or 15 years before.) The prosecutor recommended probation, but the court fined defendant $50 without any costs. The fine was promptly paid out of the bond deposit. On 29 February 1972, defendant filed timely notice of this appeal.
The order entered by the trial court on 31 January 1972 in substance recited:
(1) Now comes William Bray, presents his complaint under oath, and moves the court that he be granted leave to file it instanter; the court, having examined the complaint and having examined William Bray under oath, and being satisfied that there is probable cause for filing the complaint, hereby grants leave to file it instanter.
(2) Since defendant, arrested without a warrant or other process, is present in open court, the court takes jurisdiction of his person and orders the sheriff to take defendant into custody.
(3) Defendant was duly arraigned and pleaded not guilty to the offense charged.
(4) Defendant waives trial by jury.
(5) Trial before the court without a jury is now had and there is a finding of guilty, and a judgment of guilty is entered upon the finding, and a fine of $50 is assessed against defendant.
(6) Judgment for the fine is satisfied that same day by payment of $50 deducted from defendant's cash bond.
As a preliminary matter, we note that both defendant and the State on this appeal treat defendant as an indigent person in the trial court as well as on this appeal. Defendant was convicted and sentenced and paid his fine on 31 January 1972. He filed his notice of appeal on 29 February 1972. It was not until 27 April 1972 that defendant petitioned the trial court for the appointment of a named attorney as his appellate counsel and for a free transcript of proceedings on the grounds of his indigency. His supporting affidavit alleged that his income for the preceding year was $1752, that he had no assets, and that his prospective income would consist solely of public assistance payments. The petition was allowed and the named attorney was appointed as defendant's appellate counsel. Hence, the record does not show that defendant ever did petition for an appointed trial counsel on the grounds of indigency. And yet, on this appeal, both parties agree that the issue is one of defendant's ...