¶1I do not agree with the disposition my brethren make of this appeal. Therefore, I respectfully dissent. In doing so, I want to state the facts that influence my judgment and point out the principles of constitutional and statutory law which compel my conclusions.
¶2I.
¶3On September 21, 1970 at about 12:30 A.M., defendant was arrested for armed robbery. From that day until January 18, 1971 when he and a. codefendant were brought to court for arraignment and trial, he was held in jail. Interrogation at the arraignment revealed that defendant and his codefendant were indigents. Therefore, the Public Defender of Cook County was appointed to represent them. Later in the day, they were before the assigned trial judge. When the case was called, an assistant public defender, a different one than was present at the arraignment, told the comt that he was not prepared for trial because his office had just been appointed. No statement was made by the assistant state’s attorney; no one said anything concerning the term status of the case. However, the trial judge spoke, saying, “It is my understanding the term runs on the case tomorrow.” Then there followed a colloquy in which defendant, apparently speaking for his codefendant, told the court that “[w]e demand trial now.”
¶4After the assistant public defender repeated that he was not prepared to defend the case, the trial judge said to the defendants, “You understand, gentlemen, this case came to our courtroom the later hour of four o’clock or thereafter and that the Public Defender who was just introduced to the case and introduced to you, that he is not familiar with your case and not familiar with the defense that you are endeavoring to promote on your behalf [sic].” Defendants, however, insisted on immediate trial. The judge ordered that a panel of prospective jurors be sent to his courtroom. A short time later, interrogation of the jury was begun, continued to the next day and then to January 20, 1971, 121 days after defendant was taken into custody.
¶5That day’s proceedings began in the trial judge’s chambers where in the presence of the assistant public defender he talked with the two defendants and told them that the day before, in open court, their appointed counsel had said that he was not prepared to defend them because he had not investigated their case and there were witnesses he wanted to interview. The trial judge told the two defendants that they were facing a serious charge; that if they were found guilty, they could be sent to the penitentiary for an indeterminate period of time. “Now by indeterminate, that means any number of years, ten or twenty or thirty or forty or sixty years … The judge added, “s … [w]e started the trial and you are on trial, but your counsel had indicated that to serve your best interest he would like to have additional time, but that is entirely up to you and I want you to know that he will have problems in representing you. He has indicated that * ” Then,
¶6after a long conversation in which the two defendants made, but the court rejected, the claim that the 120 days within which they had to be tried had passed, the trial judge inquired whether they would consent to a continuance so that their appointed counsel could prepare defense of their case. Each defendant said that he had been in jail more than four months awaiting trial and that he was insisting on either being discharged or being tried within the 120-day rule. The assistant public defender interrupted the conversation to say that he was not prepared to defend the case. The assistant state’s attorney announced that the State was ready. Thereupon, the trial judge ordered selection of the jury to proceed. This was done and continued to the following day.
¶7When court reconvened, there was a conversation between defendants and the trial judge concerning defense motions on which the trial court had not ruled. Two of these were for defendant’s discharge on the ground that he had not been brought to trial within 120 days. Defendant requested that the motions be heard before selection of the jury was completed. The trial judge denied the request. In a conversation with the assistant public defender, the trial judge asked how much progress he had made in preparing for defendants’ defense. “Do you think that you would be ready to proceed after we complete the motions?” The lawyer replied, “I will give it the maximum effort I can. I cannot tell this court whether I will be or not.” In a later conversation, the assistant public defender told the trial judge that defendant had a key witness who had to be located. “Without her I can see where the case for Mr. Williams would be quite damaging.” There then followed a conversation in which the trial judge asked the two defendants if they would consent to a continuance so their counsel could prepare their defense. Both defendants refused, insisting that to do so would waive their rights under the 120-day rule. A short time later, the codefendant, through the assistant public defender, informed the trial judge that he wanted to withdraw his plea of not guilty. The court was told that as to him a plea bargain had been reached. Accordingly, the codefendant was admonished, his plea of guilty was accepted and on the recommendation of the State, he was admitted to five years probation, the first year to be served in the Cook County Jail.
¶8Thereafter, selection of the jury continued and was completed that day, Thursday, January 21, 1971. The case was put over until the following Monday, January 25 when, with the assistant public defender waiving opening statement on defendant’s behalf, the State’s case was heard. The key witness was not located; so defendant testified as the only witness for the defense. After final arguments, the jury on January 26, 1971, received its instructions, deliberated and returned its verdict finding defendant guilty. He was sentenced to a term of not less than seven nor more than twelve years.
¶9II.
¶10On the day defendant was arrested, our law provided, as it does now, that “[e]very person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date , he was. taken into custody unless delay is occasioned by the defendant # … » (Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5(a).) This law is not . a technical one. (People v. House, 10 Ill.2d 556, 141 N.E.2d 12.) Its provisions are mandatory; they confer on a defendant a substantial and absolute right. (People v. Emblen, 362 Ill. 142, 199 N.E. 281; People v. Wyatt, 24 Ill.2d 151, 180 N.E.2d 478.) Unquestionably, a defendant who is not brought to trial as required by this law is entitled to a discharge for want of prosecution. People v. Markword, 108 Ill.App.2d 468, 247 N.E.2d 914.
¶11These fundamental principles force me to notice that, for reasons known only to the State, defendant was held in jail 119 of the 120 days within which by law he had to be tried. See People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326. It has been said that the whole purpose of the constitutional provisions that guarantee the right to a speedy trial, and of our 120-day statute implementing this guarantee, is to prevent a defendant from being kept in jail at the whim of a prosecutor without trial on a pending indictment or information. (People v. Lowe, 61 Ill.App.2d 262, 266, 210 N.E.2d 31.) To me, it is clear that on January 18, 1971, after 4:00 P.M., when defendant (with his codefendant) stood before the trial judge, he had been kept in jail at the whim of Cook County prosecuting authorities for such an unreasonable length of time that when brought to court, he was compelled to choose between his statutory right to be tried within 120 days and his constitutional right to counsel. As a consequence of this compulsion, defendant, in the proceedings that resulted in his conviction, was denied the effective assistance of counsel and as a direct result of this fact he was not brought to trial within 120 days as required by section 103 — 5(a) of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5(a).
¶12. For me, denial to defendant of effective assistance of counsel occurred when he .was subjected to a trial while represented by a-lawyer who could not proceed with the defense because he was unprepared. It is true that defendant refused to waive his rights under the 120-day statute. From what defendant said, it appears he was jail-wise. He had learned, through jail-house education, that if the State did not bring him to trial within 120 days of his arrest, he was entitled to his liberty. Spurred by this knowledge, superficial though it was, he insisted on immediate trial. In my judgment, he was right in this insistence. He knew by instinct, if not by learning, that the salutary provisions of the 120-day rule cannot be defeated by technical evasions. (People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242.) He sensed that these statutory provisions are intended to conserve the liberty of the citizen; that they give effect to the constitutional right to a speedy trial; and that courts must give these provisions a liberal construction. (People v. Moriarity, 33 Ill.2d 606, 213 N.E.2d 516; People v. Matson, 129 Ill. 521, 22 N.E. 456.) It was the sworn duty of everyone in that courtroom, the trial judge and the assistant state’s attorney, to recognize that “[practices in prosecution which result in compelling, or in seeking to compel, the waiver of constitutional and legislative requirements are unfair in the administration of justice.’’ People v. Rice, 109 Ill.App.2d 212, 218, 248 N.E.2d 332.
¶13I regret to observe that this precept was not recognized. Instead, the trial judge, without being asked by the State, resorted to a theory that finds support in two of our decisions in which by dicta we said that a jury criminal trial begins when selection of the jury commences. See People v. Scott, 63 Ill.App.2d 232, 211 N.E.2d 418; People v. Bey, 133 Ill.App.2d 250, 272 N.E.2d 726. In pursuit of this theory, the trial judge brushed aside defendants’ request for pretrial proceedings and rulings on pretrial motions, a request they had a right to make. See People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129. He called for a panel of prospective jurors. After he had oriented them on the occasion for their being in his courtroom, the trial judge asked, “Does either counsel want to move that we recess until tomorrow morning? We are on trial.” The only one to respond was the assistant state’s attorney who said, “I have no opin- • » ion.
¶14The judge’s obvious invitation for one of the lawyers to request a continuance was not accepted. Therefore, he said, “Very well, we will start interrogating the jurors.” This was done. The interrogation went on for the next three days and selection of the jury was completed on January 21, 1971, 122 days after defendant was taken into custody. For three consecutive days after defendant was brought to court, his appointed counsel expressed inability to represent him at his trial. On each occasion, the trial judge used these representations to importune defendants into waiving their rights under the 120-day rule in order that the assistant public defender could prepare for trial. In my judgment, these efforts to compel waiver of constitutional and legislative requirements of a criminal trial were unfair.
¶15They were also unnecessary. There is reason to believe that had the trial judge given defense counsel time to prepare for trial, at the expense of defendants’ rights under the 120-day statute, his ruling would have been correct. For example, in People v. Carr, 9 Ill.App.3d 382, 292 N.E. 2d 492, we held that when a defendant in court with his lawyer demands immediate trial so as to compel compliance with requirements of a speedy trial, but the lawyer requests a continuance so he can prepare for trial, it is not a violation of the 120-day rule for the trial judge, to grant the lawyer’s request and refuse defendant’s demand. Evidently, with a case like this one in mind, we said in Carr that “[i]f the court had acceded to defendant’s demands, and had defendant been found guilty, the question would surely have arisen as to whether defendant had been denied the effective assistance of counsel who had stated that he was not prepared to defend.” 9 Ill.App.3d 382 at 384.
¶16The question arises in this case. In my judgment the only answer is that when the initial consultation between a court-appointed attorney and his client occurs only a short time before the trial, in the absence of clear proof that no prejudice resulted, we should be obliged to treat the lawyer’s representation as inadequate and the trial as falling short of the standards of due process guaranteed by the Fourteenth Amendment. (Turner v. Maryland (4 Cir. 1963), 318 F.2d 852, 854; compare Twiford v. Peyton (4 Cir. 1967), 372 F.2d 670.) In this case, I will not limit my study of the record to the caliber of the assistant public defender’s performance when evidence was presented to the jury. The right to effective assistance of counsel applies to every stage of a criminal casé. (People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96; People v. Vesley, 86 Ill.App.2d 283, 229 N.E.2d 886.) Therefore, I look to the jury selection during which defendant’s court-appointed counsel was protesting his inability to undertake defense of the case. Selection of the jury is an important part of a criminal trial. It is the way by which a fair and impartial jury is obtained. (See People v. DeLordo, 350 Ill. 148, 182 N.E. 726; People v. Goehringer, 196 Ill.App. 472.) The lawyer who participates in that selection must know the case of the side he advocates. It is difficult for me to believe that a lawyer who, for lack of preparation, is unable to undertake the defense of a criminal case is competent to select a jury to try the accused.
¶17In any event, as did the trial judge, I will take the word of the assistant public defender that he was not prepared to undertake defendant’s defense. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Glasser v. United States (1942), 315 U.S. 60, 76, 86 L.Ed. 680, 62 S.Ct. 457, 467; United States v. Koplin (7th Cir. 1955), 227 F.2d 80.) Therefore, I conclude, and would so hold, that in the proceedings that resulted in his conviction, defendant was denied the effective assistance of counsel and thus was deprived of due process of law.
¶18This conclusion brings me to the question whether defendant was brought to trial within 120 days. This question is implicit in the issue which defendant presents for our review. Its answer rests on fundamentals of the system by which in this State we administer criminal justice.
¶19As I understand this system, a person in custody for an alleged offense is brought to trial within the provisions of the 120-day statute when trial begins before a criminal court that is organized in accordance with law and having power to proceed to determine his guilt or innocence. (People v. Jonas, 234 Ill. 56, 84 N.E. 685.) My knowledge of the law tells me that in this system, a criminal court cannot proceed to try an indigent defendant for armed robbery without appointing counsel for his defense, unless there is a knowing and intelligent waiver of the right to counsel. (U.S. Const, amend. VI; Ill. Const, art II, sec. 9 (1970); Ill. Rev. Stat. 1969, ch. 38, par. 113 — 3(a); Supreme Court Rule 401(b), Ill Rev. Stat. 1969, ch. 110A, par. 401(b); Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792; People v. Chilikas, 128 Ill. App.2d 414, 262 N.E.2d 732.) These constitutional and statutory requirements are not satisfied by the perfunctory appointment of a public defender. See Avery v. Alabama, 308 U.S. 444, 84 L.Ed. 377, 60 S.Ct. 321; People v. De Simone, 9 Ill.2d 522, 138 N.E.2d 556; 21 Am.Jur.2d, Criminal Law § 319.
¶20In this case, it is important to notice that when defendant was brought to court on the 119th of the 120 days within which the State was obliged by law to try him, an assistant state’s attorney was present. He knew the nature of the case and the seriousness of the charges. He had the Hst of witnesses, the schedule of the evidence and he had some idea of the length of time the trial was going to require. In fact, he was the only person who could tell whether it was true that the assistant pubfic defender was unable to undertake defendant’s defense. Yet, the assistant state’s attorney said nothing. He accepted as true the pubfic defender’s representation that he could not undertake the defense. It appears, then, that through its duly authorized officials, the State knew it had caused an unexplained and unreasonable delay in bringing defendant to court and that it had initiated a proceeding in which, more than 120 days after his arrest, defendant was denied effective assistance of counsel. In my judgment, affirmance of this conviction puts our stamp of approval on a dangerous technique of oppression. Persons charged with serious crime can be held in jail at the whim of a prosecutor, and then with calculated delay, be brought to court in a way that will effectively nullify both the right to a speedy trial and the right to effective assistance of counsel. The State, with our approval, should not be allowed to develop this technique.
¶21Therefore, I conclude that because, within the time required by law he was not brought before a court and furnished with effective counsel, defendant was not brought to trial within 120 days. His timely motion for discharge on that ground, a motion on which the trial court did not rule, should have been granted. For these reasons, I would hold that his conviction should be reversed; and by an order entered in this court, I would order him discharged from custody as the only possible remedy for the deprivation of his right to a speedy trial.