Appeal from the Circuit Court of Macon County; the Hon. Donald
W. Morthland, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was tried in absentia in the circuit court of Macon County for the offense of burglary in violation of section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)). A jury convicted him of the offense and he was sentenced to four years' imprisonment.
On appeal defendant challenges the composition of the jury which tried and convicted him; he further claims that the proof was insufficient to establish that he wilfully avoided trial, thus invalidating proceedings taken in his absence. No question of reasonable doubt has been raised and therefore we need not delve into the facts of the case.
On January 18, 1982, which appears to be the opening day for jury trials in the county and before any cases were called for trial, defense counsel, together with a number of other counsel representing criminal defendants, filed a verified motion challenging the jury array. The affidavit supporting the motion must be taken as true, since no counteraffidavits were filed and at one point in the proceedings the People offered to confess the motion.
That affidavit discloses that approximately 300 veniremen had been drawn by the Macon County Jury Commission for the January 1982 venire; that one of the cases on the January call involved the A.E. Staley Manufacturing Company and Swift and Company, an Esmark Company subsidiary; and that this case was anticipated to last about three months. The affidavit further states that "the Court" caused to be sent to all of the 300 veniremen a questionnaire which contained, among others, the following questions:
"6. Are either of your parents or any of your children employed by the A.E. Staley Company? Yes ___ No ___
7. Have you or your spouse or any of the above ever been employed by the A.E. Staley Company? Yes ___ No ___
8. Have you, your spouse, or any of the above ever been employed by Swift and Company? Yes ___ No ___
9. Do you or your spouse own any shares of stock or any bonds issued by the A.E. Staley Company? Yes ___ No ___
10. Do you or your spouse own any shares of stock issued by Swift and Company or Esmark? Yes ___ No ___."
It further appears from the affidavit that if any veniremen answered in the affirmative to any of the foregoing questions, he was deferred until some following month; and that the Staley-Swift case was only one of approximately 200 cases which had been called for trial in January 1982.
A hearing was held on the motion before the chief judge of the circuit, who was apparently responsible for the questions and the consequent deferrals. One of the defense counsel testified at the hearing and stated that 37 persons were deferred on account of some connection with either Staley or Swift and that 84 persons remained in the venire which reported for service on January 18. The remainder of the 300 is apparently accounted for by failure of notice, physical or mental disability, or hardship.
The reason for the deferrals is not articulated at length in the record except for one finding by the chief judge as follows:
"The January jury list was screened to eliminate jurors who would be challenged for cause as employees, stockholders, or friends of the Staley v. Swift civil trial [sic], which was ...