APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his convictions upon jury verdicts of felony murder and robbery (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1(a)(3), 18-1) and the respective sentences of 35 to 100 years and 6 2/3 to 20 years. The jury found defendant guilty of burglary (Ill. Rev. Stat. 1973, ch. 38, par. 19-1), but it appears that no sentence was imposed. Defendant was acquitted upon a charge of murder as defined in section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(2)).
The charges arose from the entry of defendant and co-defendants, Harris and Taylor, into a darkened rural home for purposes of burglary. In fact, the residence was occupied by a man aged 73 years, who was set upon, severely beaten, and was dead when found. His billfold and currency were taken during the course of the beating.
Prior to trial, Harris pleaded guilty to burglary and testified in behalf of the prosecution. A trial of defendant and Taylor, jointly, was declared to be a mistrial for the reason that the jury was unable to reach a verdict. Thereafter, Taylor moved for severance alleging antagonistic defenses vis-a-vis defendant and that motion, as well as a motion for a change of place of trial, was granted. Upon the trial of Taylor, he was acquitted.
An initial issue arises from the discharge of the jury upon the determination of mistrial on April 10, 1975. Thereafter, on May 22, defendant and Taylor filed motions for discharge alleging constitutional double jeopardy and a right to discharge under section 3-4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3-4(a)(3)).
In argument upon the motions in the trial court it was conceded that no objection was made to the form of the questions asked of the jury or the entry of the order for the discharge of the jury. While not suggested or referred to in the briefs, the record of the minutes of the trial court discloses the following details: On April 8, 1975, the jury retired to deliberate at 1:06 p.m. and continued until 10 p.m. On April 9 at 9:15 a.m., the jury resumed deliberations. At 10:45, the jurors advised that they had been unable to reach a verdict. The trial judge and counsel agreed that the jury should be recalled into the courtroom and that the court should instruct the jurors "based upon the American Bar Association suggestions * * *." (See People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601.) Following a lunch the jury was so instructed and resumed deliberations at 2:10 p.m. There is no specific notation as to how late they continued on that date. On April 10, the jury resumed consideration of the verdict at 9:15 a.m., and at 10:45, defendants and counsel being present, the court directed that the jury be returned to the courtroom. The court's minutes note, "Court is advised that the Foreman considers the jury to be hopelessly deadlocked."
A transcript attached to the motions for discharge in the trial court discloses the following:
"THE COURT: Mr. Paro, is it correct you have been selected as Foreman of this Jury?
MR. PARO: Yes, your Honor.
THE COURT: Would you please rise and answer several questions I have prepared for you as Foreman. I will ask you first, have you been able to reach a verdict in this case? Answer Yes or No have you been able to reach a unanimous verdict in this case?
MR. PARO: Yes and no, your Honor.
THE COURT: The answer can't be both, Mr. Paro.
MR. PARO: I don't know how to answer your Honor.
THE COURT: If you have not been able to reach a unanimous verdict the answer is no.
THE COURT: Do you believe it is possible or impossible to reach a unanimous verdict in this case?
MR. PARO: Can I ask a question, your Honor, or not?
THE COURT: I would rather you would not. Do you believe ...