APPEAL from the Circuit Court of Cook County; the Hon. JAMES
P. PIRAGINE, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Following a bench trial, the defendant, Ronald Bristow, was found guilty of criminal damage to property (Ill. Rev. Stat. 1977, ch. 38, par. 21-1(a)), and sentenced to a term of 60 days in the House of Correction. Several months later he filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72), to set aside the judgment based on the existence of an additional witness favorable to his defense. The petition was denied. Defendant has appealed from the judgment of conviction (Docket No. 79-35), and the judgment on his section 72 petition (Docket No. 79-36). The two cases have been consolidated for decision. In his direct appeal, defendant contends that he was denied his constitutional right to a trial by jury; he was not proved guilty beyond a reasonable doubt; he was denied due process by the restricted scope of the cross-examination of the complainant; and the trial court erred by denying his motion for a new trial.
Debra Keeling testified that on April 7, 1978, between 11:30 p.m. and 1 a.m., she was sitting in her living room at 4128 North Lawndale in Chicago. The room had seven windows across the front and it was illuminated because of a light from the street. She saw the defendant, Ronald Bristow, walk down the street toward her residence and stop. He had an object in his hand. She then saw a brick come through the window, shattering the glass which hit her desk. She did not see the defendant again. However, she reported the incident to the police around 8 a.m.
On cross-examination she admitted that over a year prior thereto she had lived with the defendant for a while, but that their relationship had been terminated for several months. She stated the defendant was not wearing a hat and that she had a good view of him on the night of the occurrence.
The defendant testified on his own behalf that he was with Sandy Mendyk in her home for dinner on April 7, 1978, and remained there until 6 a.m. He denied throwing a brick through the complainant's window. On cross-examination he admitted that he might have gone outside of the house to "tinker" with his bike or car on the night of the incident.
Sandra Mendyk testified that the defendant was with her in her home at 6935 West Berwyn in Chicago on the night of April 7, 1978. She stated he came for dinner about 5 p.m. and did not leave until the next morning around 6 a.m. She admitted that she did not see him leave but remembered hearing him depart while she was sleeping.
The trial court entered a finding of guilty of criminal damage to property. Thereafter the defendant filed a written motion for a new trial in which he questioned the sufficiency of the evidence and also raised the issue of new and additional evidence. On the latter point defendant called Thomas Weldon, who testified that he threw a brick through the complainant's window because he was angry with her over her treatment of the defendant. On cross-examination, he stated he had known the defendant for 15 years and sometimes worked for the defendant. He also admitted that he told the defendant about his act the night after it happened, and the defendant told him not to worry about the incident. The trial court denied the motion for a new trial and sentenced the defendant.
Several months thereafter, defendant filed his section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72). Defendant asserted that he now had a witness, who was previously reluctant to testify, who would account for his whereabouts on the night of the occurrence. The motion was denied.
Defendant first contends that his conviction must be reversed because the record does not show that he was admonished by the trial court of his right to a jury trial, and it fails to show that a waiver of jury was made. The State replies that the defendant has waived the jury trial issue by failing to raise it in his written motion for a new trial.
That following colloquy is essential to consideration of the jury waiver issue.
"THE COURT: * * * Swear in the witnesses.
THE COURT: Plea of not ...