delivered the opinion of the court.
This matter is transferred to this court upon the order of the Supreme Court.
Defendant, Fred W. Diesel, after a bench trial was convicted of gambling and was fined $25 and cоsts.
The charge grew out of an incident which occurred on May 6, 1969, when Police Officers May and Molitor, of the Crystal Lake Police Department, entered Christopher’s Lounge in Crystal Lake, Illinois. According to the testimony of the officers, they discovered six men sitting at a round, wooden table; each was observed to bе holding cards in his hands. United States currency, in bills and change, were in front of each of the men and some currency was toward the center of the table. As the оfficers approached, the men placed the currency in their pockets. A deck of playing cards was confiscated by the officers.
The report of proceedings reflects that on June 16, 1969, the following colloquy took place between the defendant and the court:
THE COURT:
“Mr. Diesel?”
A. “Yes, sir.”
THE COURT:
“You are charged with Gambling?”
A. “Not guilty.”
THE COURT:
“I will place it on the Jury Call.”
FRED DIESEL:
“Can I waive the jury call?”
THE COURT:
“Yes, Jury is waived.”
FRED DIESEL:
“I am going to be out of town the month of July.”
THE COURT:
“I am going to set it for August thе 18th, 1969, at one-thirty (1:30 p. m.). Be here at that time.”
FRED DIESEL:
“All right.”
A waiver of trial by jury, signed by the defendant, was filed the same day.
During the trial on August 18, 1969, the defendant was not represented by counsel; he did not testify. The two police officers were the sole witnesses; both were cross-examined. The magistrate found the defendant guilty of gambling. Under section 28-1 of the Criminal Code (Ill Rev Stats 1967, c 38, § 28-1), a conviction of gambling authorizes a maximum sentence of one year in a penal institution (other than a penitentiary) and a $500 finе.
On appeal, defense counsel contends that defendant was not advised of his right to counsel, that the record fails to show that defendant understood the nature of a jury trial or that he understandingly waived his right to the same, that the complaint was fatally defective and that the defendant was not proved guilty beyond а reasonable doubt.
A review of the record reveals that the court did not advise the defendant of his right to be represented by counsel, nor is there an indication that the defendant ever requested counsel. However, the duty of the court to advise a defendant charged with a misdemeanor not punishable by а penitentiary sentence, has been considered and passed upon by the Illinois Supreme Court in the case of The People v. Dupree, 42 Ill2d 249,
Defendant complains that he was deprived of his constitutional right to trial by jury because the record fails to show that he understood the nature of a jury trial or understandingly waived his right to a jury trial as required by section 103-6 of the Criminal Code (Ill Rev Stats 1967, c 38, § 103-6), and cites as authority, People v. Turner, 80 Ill App2d 146,
This court agrees that it is the duty of the trial judge to see that a jury waiver is understandably made. Whether such a waiver has been understandingly made rests on the peculiаr facts of each case, and cannot be governed by any precise formula. The People v. Wesley, 30 Ill2d 131, 133,
We are convinced by the circumstances and the facts of this case that the written waiver of the jury trial was understandingly. еxecuted by the defendant, and his verbal act of waiving the jury was made after the court had indicated to him that the case would be handled and decided by a jury. Aсcordingly, we find this assignment of error to be without merit.
Defendant next claims that the criminal complaint charging him was defective and violated section 111-3 (a) (5) of the Criminal Code (Ill Rev Stats 1967, c 38, § 111-3 (a) (5)) in that the complaint did not name the defendant, Fred W. Diesel.
Chapter 38, section 111-3(a) (5) provides, in part:
“(a) A charge shall be in writing and allege the commission of an offense by: ... (5) Stаting the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable cеrtainty.”
The complaint, a single sheet, states in part:
“THE PEOPLE OF THE STATE OF ILLINOIS
vs.
Fred W. Diesel
100 W. Crystal Lake Ave.
Crystal Lake, 111.
Defendant
CRIMINAL COMPLAINT
Complainant, Sgt. James Molitor, on oath charges: That on May 6, 1969, in McHenry County, - committed the offense of Gambling in that in that he played a game of chanсe and skill, at 109 N. Main St. Crystal Lake, 111, commonly known as Christophers Lounge, namely, a card game for money or other thing of value, in Violation of Section 28-1, Chaptеr 38, Illinois Revised Statutes.”
While defendant’s name was not entered in the blank between the words “county” and “committed,” his full name and address are set forth in the caption. This court has considered the caption as part of the body of the complaint when there is no conflict between the two. People v. McGrath, 85 Ill App2d 388,
This is not a case in which only one of the three persons charged in the body of the pleadings is mentioned in the caption (The People v. Soukup, 41 Ill2d 94, 96,
Since the purpose of the complaint is to apprise the defendant of the elements of the crime with sufficient particularity as to enable him to prepare his defense and plead a judgment of conviction or acquittal in bar of a second prosecution for the same offense, (The People v. Soukup, supra), we are of the opinion that the test is met and satisfied in this case.
The defendant complains that the State failed to prove him guilty beyond a reasonable doubt. A reviewing court will not disturb a guilty finding in a bench trial of a criminal matter unless the proоf is so unsatisfactory or implausible that it justifies a reasonable doubt as to the defendant’s guilt. The People v. Woods, 26 Ill2d 582, 585,
For the reasons set forth herein, the judgment of the trial court is affirmed.
Judgment affirmed.
DAVIS, P. J. and ABEAHAMSON, J., concur.