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People v. Wallace





APPEAL from the Circuit Court of Menard County; the Hon. LYLE E. LIPE, Judge, presiding.


Defendant appeals his conviction upon a jury verdict of theft of property under $150 in value (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)), and the sentence of 364 days imposed.

It is argued that the prosecution failed to prove beyond a reasonable doubt that defendant intended to permanently deprive the complaining witness of the value of a meal, and that the trial court abused its discretion in denying defendant's motion for a continuance for the purpose of retaining counsel of defendant's choice.

The evidence for the prosecution is that on September 28, 1974, defendant came into the restaurant and ordered sandwiches and incidental items. He remained at the restaurant for approximately an hour or hour and one-half during which time he borrowed cigarettes from the proprietor and from other customers. When the check was presented he informed the proprietor that he left his money at home in Springfield, but that he would go to his grandmother's, get the money and return within an hour. At the request of the proprietor he signed the ticket for $2.89. Defendant never returned to pay the bill.

At a later unspecified date, Otis Lynn, a proprietor of the restaurant saw defendant in a pool hall. The witness testified that he told defendant to get down to the restaurant and take care of the bill. The latter made no response, but "grinned." The complaint was filed on October 24, and tried by jury on December 19. Defendant introduced no evidence at trial.

Upon the issue of proof of intent, defendant agrees that if the evidence established that defendant had obtained the meal by false promises to pay at a later time, the necessary proof would be established. It is argued, however, that the only evidence of a false promise was that he did not return to pay the bill, that it is reasonable to assume that he intended to pay but simply was without funds.

• 1 The trier of fact is entitled to determine intent from the facts in evidence. The testimony discloses his statements indicating that he had money at his home in Springfield, but that to avoid delay he would get the money from his grandmother and return within an hour. Substantially a month intervened and he failed to make any effort to pay. From such facts we conclude that the verdict of the jury is supported by the evidence. (People v. Kamsler (1966), 67 Ill. App.2d 33, 214 N.E.2d 562.) The intent with which the act is done may be deduced from the circumstances in evidence. People v. Baddeley (1969), 106 Ill. App.2d 154, 245 N.E.2d 593.

Defendant argues that the denial of a continuance denied his right to have counsel of his own choice. As in People v. Edmondson (1975), 30 Ill. App.3d 763, 332 N.E.2d 493, it is contended that once a defendant has expressed a desire to retain private counsel the right is absolute without regard to other circumstances.

The right to counsel may not be employed to delay prosecution indefinitely. (People v. Solomon (1962), 24 Ill.2d 586, 182 N.E.2d 736.) Defendant was arraigned on October 28, 1974, and the record shows that the trial court set a hearing for November 1, to determine whether defendant had retained counsel. On the latter date counsel was appointed at defendant's request and trial was set for December 13. The record shows that appointed counsel promptly filed appropriate motions and obtained discovery as provided by rule. On December 11, 1974, appointed counsel filed a motion to withdraw at defendant's request. In open court defendant stated that he would like to get another lawyer. He told the court that "upon my personal opinion" he did not believe the lawyer competent but responded to the court's inquiry that he did not base that opinion upon any facts.

On the date reached for trial, December 19, 1974, defendant renewed his request for continuance and advised the court, "[A] friend of mine is going to hire me a lawyer * * *." Defendant continued to say that counsel was not capable and said, "It's my right."

The record of the hearing in aggravation and mitigation discloses that defendant, at such proceeding, expressed a desire for other appointed counsel.

Defendant cites People v. Green (1969), 42 Ill.2d 555, 248 N.E.2d 116; People v. Payne (1970), 46 Ill.2d 585, 264 N.E.2d 167; People v. Willis (1972), 6 Ill. App.3d 980, 286 N.E.2d 72, and People v. Morris (1975), 30 Ill. App.3d 1075, 333 N.E.2d 29, in each of which it was held to be an abuse of discretion to deny a continuance. In these cases counsel had either entered an appearance, had been retained in fact or had agreed to appear to represent defendant, but was unavailable on the date the case was reached for trial. Here, defendant had shown his indigency and requested appointment of counsel approximately six weeks before the request was made. The motion was made two days before the date set for jury trial. On the trial date defendant simply stated that an unidentified person was going to commence to seek to retain an attorney. Such had not been suggested at the time of the original motion. There is no claim that defendant had obtained funds or otherwise arranged to hire an attorney, and the colloquy suggests that the defendant was of the opinion that the court had no alternative but to grant his request.

• 2 It is held that there is no abuse of discretion in denying a continuance where there is no showing that defendant has other counsel, or is able to retain other counsel. People v. MacArthur (1971), 2 Ill. App.3d 1077, 278 N.E.2d 530; People v. Edwards (1975), 28 Ill. App.3d 216, 328 N.E.2d 18; People v. Edmondson (1975), 30 Ill. App.3d 763, 332 N.E.2d 493; People v. Williams (1976), 42 Ill. App.3d 134, 350 N.E.2d 135.) In MacArthur, it was stated that as to a motion for continuance made on the date of the trial, defendant must state substantial reasons for a change of counsel. No reasons of this quality appear in this record.

• 3 Before a judgment of conviction will be reversed for denial of a motion for continuance to retain other counsel, it must be shown that that denial "in some manner embarrassed the accused in preparing his defense and prejudiced his rights." (People v. Solomon (1962), 24 Ill.2d 586, 589-90, 182 N.E.2d 736.) Upon this appeal no actual prejudice is claimed or shown and no contention is made that the defense was not competently presented to the jury. People v. Edmondson (1975), 30 Ill. App.3d 763, 332 N.E.2d 493; People v. Marchese (1975), 32 Ill. App.3d 872, 336 N.E.2d 795.) In People v. Morris (1975), 30 Ill. App.3d 1075, 333 N.E.2d 29, appointed counsel had but three hours to prepare after a continuance ...

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