*1 powerful evokes condition which complex psychological man, a lay- from the ordinary emotional responses evidentiary with no support, man cannot be permitted, Al- characteristics. its his views as to argue each an objection these comments were improper, though in- sustained, of them was immediately counsel not sup- statements of any structed to disregard not warrant do In our opinion, the evidence. ported by reversal of the judgment. should his sentence
Finally, urges served, 10 time x/¡ this court to the already be reduced in influenced that the trial years, ground judge of the thet argument improper sentencing limits is within the pre- The sentence imposed prosecutor. offense, however, our scribed for court to de- in better than is this board position is parole should be when the defendant released. termine criminal of Cook County court The judgment affirmed.
Judgment affirmed. took no the consideration part Ward decision of this case. (No. 40889 . vs. Illinois, Appellee, the State Agnes Sailor, Appellant.
Marie Opinion November filed 1969. *2 Kluczynski, J., dissenting. P. Biestek, Biesteic, Jr., Facchini & Born- John
stein, Chicago, appellant. General, Scott, Attorney Springfield, William J. Edward V. State’s Attorney, Hanrahan, Chicago, (James B. Assistant General, Attorney and Elmer Zagel, C. Kissane T. Assistant Driscoll, Patrick Jr., State’s Attorneys, of for the counsel,) People. delivered the Culbertson court:
At the conclusion of bench trial the circuit court of Cook County, Sailor, Marie Agnes was found of the crimes of guilty theft and petty deceptive practices in the days terms of and was sentenced concurrent that the has contending House of She Correction. appealed de- evidence a motion to court’s denial of unreasonable her of her constitutional right against prived seizure, and under- did not search and that she evi- and that the waive her to jury standingly of either offense beyond dence to establish guilt failed a reasonable doubt. defendant, together afternoon of March
On the in an automobile oper Roy Bridges, passenger aby Kneilin when the latter was ated by stopped Gregory about the failure to officer questioned Chicago police license to the windshield of have vehicle affixed city driver, the officer saw a bar pinch car. to the While talking floor communication devices on the and two “walkie-talkie” and, car them as tools of the rear seat of recognizing informed the used commonly by burglars, occupants and ordered them from the car. The of were under arrest *3 and, so, the car as he was saw ficer then searched doing in her hand defendant which she something Bridges put found, the he other purse. Upon searching purse among card Bank to a issued Harris “Charge-It” by the things, Malitzka, identification cards and bear Jr., Conrad papers Malitzka, of Mrs. identification with the name ing papers Brensa, watches, the Roland and five one of which name name of “Vantage.” bore a trade Subsequently, theft of the with identification belonging charged Brensa, Rev. ch. 1967, Stat. (Ill. 38, par. 1(a)(1)) 16 — the offense of Rev. Stat. deceptive practices (Ill. and with the Malitzka credit 1967, 38, i(e)), using par. 17 — to obtain valued authority card without at property $57.12. At the the witness to con- single prosecution testify the theft of the Brensa identification cerning alleged papers himself; however, on motion of was Brensa result, was stricken. As a there was no testimony entire stolen, in record that the were or that the papers proof came agree into defendant’s we unlawfully, possession is a total lack of defendant forthwith that there proof the conviction for theft. support
In Ma- to the Mrs. regard charge deceptive practices, litzka testified that the credit card and her identification had her from papers night disappeared purse March aat restaurant where she was as 5, 1967, employed waitress, a as she identified defendant and Kneilin who had a persons booth that near a occupied night clothing rack where her A bank purse official testified kept. produced that the credit card had documentary been proof used to purchase watch on March 7, “Vantage” further was made that the proof Malitzkas had neither made the Defendant, nor authorized it. purchase testifying behalf, her own stated she that had found the credit card and the other on the street in papers front of the restaurant on the of March night 5, 1967, and made the admission that the damaging credit card had been in her at all times until possession it was confiscated by the arrest- officer on March 7, 1967. Defendant first contends that court erred in re fusing the evidence taken from purse, rationale of her that neither argument the absence of being automobile, license sticker on the nor the presence tools, burglar reasonably justified search of her One purse. however, this shortcoming argument, is that it overlooks the circumstance officer observed arresting defend ant place something that had been purse handed to one of her male As we companions. stated in People Watkins; “Police officers often must 19: act upon quick the data appraisal them, before and reasonableness of their conduct must be *4 on the basis judged of.their to responsibility crime and prevent to catch crirhi nals.” Here the tools which the officer could re reasonably as gard view, tools were in burglar plain and afforded rea sonable for the grounds of those arrest the auto. occupying
260 161; West, Stewart, v. Ill.2d v.
(Cf. People People 15 23 this, Ill.2d Confronted and with defendant’s 171.) in her something action of suspicious concealing purse confederate, cannot which had her we been passed that unreasonable the search of defendant’s say purse occurred, in our fell within unjustified. What opinion, the of section 108—1 of the Criminal Code contemplation Procedure which a lawful arrest “Wlien provides: effected a officer search the peace may person reasonably arrested and the area within such immediate pres person’s ** * ence for any of: (d) Discovering purpose instruments, articles, or used which have been things may of, of, in the commission or which constitute evidence may an offense.” (Ill. Rev. Stat. 1.) 38, par. 108— Furthermore, the officer could well have believed some that had been and concealed in the and weapon passed purse, have reasonably concluded that the search was necessary circumstances, himself from protect attack. Under trial court did err in not the evidence refusing thus seized.
Nor do we find merit to the further contention of de fendant that the court failed in its her duty see that waiver aof trial was jury and understanding^ made. v. (People Ill.2d Surgeon, record re 236.) 15 counsel, veals that defendant’s her and presence without on objection advised part, the court that the expressly was “not and plea An guilty” waived. ac cused ordinarily acts speaks his who through attorney, stands the role of agent, by permitting in her attorney, without presence objection, to waive in, is deemed to have acquiesced to be bound by, action. (See: v. People Novotny, 41 Melero, 401; 208; v. Ill. People 2d App. People 99 Ill. 2d 264; King, v. United App. Hensley States (D.C. 30 281 F.2d ex cir.), 605; rel. Derber v. Skaff, Wis.2d 269, N.W.2d As was observed 561.)
261 trial 211, “The court in 2d at 212): Melero Ill. (99 App. court entitled responsibility was to rely professional the court of he informed defendant’s that when attorney under that his waived a it knowingly client was jury, is not per consented to standingly client. Defendant invited mitted to was of an error which complain alleged by his behavior and that of his attorney.” we do contention
Finally, not with defendant’s agree that she was not of deceptive of the proved charge guilty a made practices reasonable The beyond doubt. prosecution case that an prima unauthorized purchase facie watch was made Malitzka credit card. “Vantage” with the Such a watch was found in defendant’s and she possession, freely admitted sole on card having credit possession the date the was And while she denied so purchase made. card, the determination using of her credibility function of the trial court. stated, and for the
Accordingly, reasons the judgment reversed, defendant of the convicting crime of is while theft the judgment finding guilty deceptive practices affirmed. in part,
Affirmed and reversed in part. Kluczynsici, dissenting: I cannot with the agree their majority finding understanding^ knowingly waived right jury trial. United States constitution in the sixth and fourteenth amendments establishes the right every to trial person Section by jury. of the Code 103—6 of Criminal Procedure Rev. (Ill. Stat. 38, par. 6) provides: “Every accused person of an offense 103— shall have the a trial to by jury unless understandingly waived defendant in court.” open (Emphasis supplied.) I do not believe that the acquiescence the defendant dur waiver of jury by attorney sufficient demon- 262 of a jury that she the meaning
strate understood waived it. that the see trial court is with the charged duty “The is both ex of an a trial by jury election accused forego cannot be That duty per made. understanding^ pressly functorily Surgeon, v. discharged.” (People 236 Bell, at As Ill. 2d 238.) suggested App. “a 482, it takes few moments of a trial judge’s only time from a indicat elicit directly response *6 he understands that he entitled to a jury ing is, that he understands what a and whether or not he wishes to be tried the court I without believe that this of affirmative show jury.” type in the record should be required protect trial. to jury
(No. 41144 . In re Harold C. Attorney, Respondent. Nesselson,
Opinion November filed 1969. Menic, curiae. Chicago, amicus Cadwalder John M. Gerald Chicago, Werksman, respondent. delivered the Schaefer court;