*1 during to the premises of the landlord with shortcomings respect trial judge apparent When became period occupancy. only appellants ones which matters he had out were ruled verdict bring in a would befоre the he directed jury discuss jury, one alternative the proper for the In our appellee. opinion in exercising. which he justified a verdict directing properly trial court acted
Consequently, for the appellee. affirmed.
Judgment CREBS, EBERSPACHER and concur. JJ., David Illinois, Plаintiff-Appellee, Miller, Defendant-Appellant. 73-103;
(No. 9, 1974. Fifth District October *2 MORAN, J., dissenting. G. P. Farrell, Vernon, Streicker, R. Chicago, Robert E. of Mt. of James for Office,
both of State Appellate appellant. Defender’s Albion, C. for the Quindry, Attorney, People. State’s of Philip EBERSPACHER delivered the of the court: opinion Mr. JUSTICE defendant, Miller, of David was convicted of Upon his plea guilty Stat., 23, a (Ill. of minor child Rev. contributing delinquency to the the circuit of From the of Edwards 2381(a)). County, judgment the defеndant has brought this appeal. 1972, defendant was charged information filed November
which stated:
“That on 26, 1972, October in Edwards David County, Miller committed the offense of a to the Contributing of Delinquency Minor Child in that Miller, the said David a over male person the age of 17 did a years cause Weisenberger, Debbie female child under again years become a delinquent child, in that he knowingly caused Debbie Weisenberger present public a upon street, Albion, Illinоis, in the after City P.M., hour 11:00 Chap- violation of Paragraph 2361(a), ter Illinois Revised Statutes.”
An warrant of arrest issued, defendant was arrested set and bail $10,000 at on the same date. On the following day, November defendant was first brought court, bеfore the acknowledged receipt a copy information, the information was read to him and upon being asked if he understood the charge indicated that he did “nodding his head yes.” After further explanation of thе charge without being advised of possible he was penalty “Do you asked: have any questions about the charges against filed you the possible penalties?” to which the defendant responded by nodding his head no.. the fоllowing colloquy: This was followed by You of the Information. copy I have a given you the Court: “By represent you? are entitled to have a lawyer No. Defendant: is in his money possession. the Court: How much
By $100.00. Sheriff: lawyer you to have a
By you money the Court: If desire ex- expended Attorney, have would have to be toward hiring When for an went expenses Attorney for an penses Attorney. it obligation appoint funds have available beyond you my lawyer represent you.”
No wаs made to determine defendant’s On inquiry indigency. further several occasions the cotuse of subsequent during proceedings, the defendant that he was entitled to be court advised recited, However, occasions, one of those the first lawyer. only above did the court make an effort to advise the defendant that he right appointed counsel.
After further proceedings was determined years sentenced to the State Farm at age and Illinois Van- dalia for fine and assessed a Defendant year $40 costs. remained at Farm from incarcerated the State November until May *3 1973, when he was released on bail this court. pending appeal, by сontentions, numerous other the defendant
Among asserts that court erred the defendant’s as the accepting guilty plea defendant was counsel and not by not did and represented waive knowingly intelligently his to counsel. right 25, 530,
In v. 407 U.S. 32 Hamlin L.Ed.2d 92 S.Ct. Argersinger (1972), 2006, the United Court held that Supreme States the sixth amendment to the United the Constitution of States to the States (made applicable amendment, v. the fourteenth Gideon through Wainwright 372 (1963), 799, 335, 792) required: U.S. 9 L.Ed.2d 83 S.Ct. waiver, knowing intelligent absent no рerson may
“[T]hat
offense,
for any
be
whether classified as
mis-
imprisoned
petty,
demeanor, or
unless he was
his
felony,
counsel at
37,
In whether a defendant in a determining criminal case is entitled to the appointment of counsel is whether Stat, is Ill. ch. “indigent”. Rev. 113— 1(b)(2), §§ 109— Stat., Court Rule 3(b); Supreme 110A, Ill. 401(a)(3), Rev. 401(a) (3).
We are aware of no requirement that a defendant be entirely Thus, without funds to be found the admonition indigent. given by trial court wherein it was stated and inferred that the defendant must entirely be without funds before counsel appointed would be is error. must, therefore, Wе conclude that the waiver of to counsel not right was intelligently made. See also v. People 320-321, Slaten (1973), Ill.App.3d N.E.2d 49:
“The record discloses that at time no three during defendant’s before the court appearances was made with a view inquiry whether or not ascertaining At the indigent. time taken the court plea made no inquiry concerning defendant’s counsel ability secure or whether he had made any so, do did he effort to nor or inquire whether not defendant wished counsel. is without It also proceed apparent from the record counsel, that the reference to the passing right to made at the time 28,1967, taken on February be plea may characterized as Bush, the sort of routine v. inquiry’ proscribed People 32 Ill.2d 484, 207 N.E.2d where the said with right reference to ‘a of waiver finding is lightly be made counsel [Citations] and the record must show that an accused was offered counsel and that he intelligently rejected offer. understandingly may that the court order be sure an that accused [Citations.] understands his to counsel and fully right intentionally relinquishes more than a right, something routine inquiry the court is We view this of thе portion as required.’ case controlled being Hessenauer, 45 Ill.2d 256 N.E.2d where the of the critical nature court held ‘Because of the arraignment, to the assistance of entitled counsel accused wehther or not he it. A of waiver will not requests finding un [Citations.] made that at less it from record each critical appears stage offered, the trial judge specifically proceeding the accused *4 rejected, understаndingly the representation of requirements counsel.’ These were not met appointed here and reverse.” we therefore this cause must be contention alone reversed
On this one and re- to allow defendant to directions anew plead manded with a proper after However, of his indigency. on the defendant has question raised hearing To imposed. the of sentence the excessiveness question concerning in named the the 16-year-old girl establish a factual basis for the plea the she with testified that was by called information was o’clock Albion after 11 the streets of riding defendant in a car around on for plea. there was a basis court determined factual .the 26th. The not represented in defendant was At hearing aggravation that if was to obviously misapprehension under the counsel and fee, the attorney at have to of an pаy $100 he would least school, boys his He had problems. sheriff that defendant “had testified Commission, No sentence at Vandalia.” record has had a Youth conviction was ever presented. said, hear had testified the trial “Let’s more judge
After the sheriff die Previous this trip they about when went to Florida.” testimony no any the trial court there had been reference inquiry by trip that was then offered had on a Testimony girl previous Florida. defendant there occasion taken a Florida with but was no trip showing nor from such there evidence that resulting trip; any charges any in connection there criminal conduct with such Whether trip. with other or with consent trip parties parents shown. the trial fit to
Based court saw im upon paltry information pose year, impose the maximum incarceration a fine and costs upon defendant. the action youthful To of the trial court on this say and an of disсretion minimize. arbitrary record was abuse is to The errors are and the trial court’s conduct so in objectivity so obvious that lacking we served need not cite authorities. 6 months Appellant approximately and we consider a 6 months’ sentence on this the sentence record therefore, year; as unreasonable as we would qualitatively modify sentence to served the defendant. time reverse As we foregoing a result rеmand with directions anew, with that be allowed to further directions plead that if plead to not anew the sentence be defendant elects modified the trial amount of time served. to the court, directions. remanded with
Reversed and CREBS, concurs. J., GEORGE MORAN dissenting
Mr. PRESIDING part: JUSTICE J. this case should be reversed my opinion outright instead being the trial court because remanded to to a pled void guilty information. the defendant information alleged violated Ill. Rеv. Stat.
154 in had 2361(a), caused Debbie Weisen a female under berger, the to be on age public a in the street City Albion, Illinois, 26, 1972, on after 11 P.M. October rendering thereby her a delinquent child.
Section 23 2360(a) defines a chapter child dеlinquent as child any who has or Federal, violated attempted any violate or municipal ordinance. The instant indictment fails to allege that Debbie Weisen- berger violated or attempted to violate or Federal State law or muni- any Instead, cipal ordinance. it that the merely alleges defendant caused her remain street after P.M. public allegation 11 This in- is clearly sufficient demonstrate that Debbie Weisenberger become de- linquent child since it fails to that she allege violated Federal or State law or municipal ordinance. Plocar, the case of v. People 141, 145, 411 Ill. our court supreme
said: “# * * is It not the information spеcified by in what respect
these facts tend to render the child delinquent, as set forth in the statute, nor do their they by plain meaning import a criminal or sufficient, or improper act motive. information is since does not with reasonable certainty describe the crime in terms statute, it set of the nor does forth facts sufficient ap- plainly the defendant of the crime charged and of prise vio- specific lation of the statute.”
Under
language
case,
information
Debbie’s
present
and that of the defendant
conduct
could have
innocent.
been wholly
an
Where the conduct
indictment
in
alleged
wholly
in itself be
may
is
nocent, it
essential that the unlawfulness of the conduct be averred
allegations
terms,
either
or
express
use
or the
statement
facts,
such unlawfulness.
clearly imply
Indictments
(41 Am.Jur.2d
Stewart,
and 113
See
3
(1968).
also
v.
People
§§
Informations
If
53.)
N.E.2d
the facts
true
all be
Ill.Apр.3d
alleged may
offense, the indictment
constitute no
insufficient.
v.
yet
(People
Barnes,
140,145
314 Ill.
N.E.
In the absence
391.)
accusation charg
law,
a violation of the criminal
defendant with
is void
ing
indictment
face,
no jurisdiction
convict,
has
or
authority
on its
trial
or consent
such
jurisdiction
the defendant cannot
waiver
confer
or
Fore,
548;
Minto,
Ill.
N.E.2d
v.
People
authority.
318 Ill.
For foregoing