People v. Gibson

• Decision Date: 14 September 1982
• Docket Number: No. 17604,17604
• Citation: 109 Ill.App.3d 316,440 N.E.2d 339,64 Ill.Dec. 787
• Parties: , 64 Ill.Dec. 787 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin James GIBSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 339

440 N.E.2d 339

109 Ill.App.3d 316, 64 Ill.Dec. 787

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin James GIBSON, Defendant-Appellant.

No. 17604.

Appellate Court of Illinois Fourth District.

Sept. 14, 1982.

Daniel D. Yuhas, Deputy State Appellate Defender, Karen Munoz, Asst. State Appellate Defender, Springfield, for defendant-appellant.

Thomas L. Brownfield, State's Atty., Havana, Robert J. Biderman, Deputy Director, Garry W. Bryan, Asst. Defender, State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

WEBBER, Justice:

Defendant was charged with five counts of murder in violation of sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code of 1961. (Ill.Rev.Stat.1979, ch. 38, pars. 9-1(a)(1) and 9-1(a)(2).) A jury in the circuit court of Mason County returned a general verdict of guilty, and after denying post-trial motions, the court sentenced defendant to 25 years' imprisonment.

On appeal, no question of reasonable doubt has been raised and therefore no extended recitation of the evidence presented at trial is required for the purposes of this opinion. Suffice it to say that we have read the record and find the verdict amply justified. Some of the evidence produced at trial and at the pretrial hearings will be reproduced in order that the issues raised may be better understood.

Defendant's first, and in our opinion most significant, issue concerns the validity of the amended indictment under which he was tried. The original was handed up by a grand jury attending upon the circuit court of Tazewell County and alleged that the offense had occurred in that county. Later, the amended indictment was handed up by the Tazewell County grand jury and it alleged that the offense had occurred in Mason County. Defendant filed a motion to quash the indictment and a motion to dismiss. The court in Tazewell County heard the motion to dismiss and found it to be without merit insofar as it alleged lack of jurisdiction; the court did find that the motion has merit insofar as it alleged an improper place of trial; and under the provisions of section 114-1(f) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1979, ch. 38, par. 114-1(f)) transferred the entire cause to Mason County. The Tazewell court declined to rule upon the motion to quash. An amended motion to quash was filed by defendant in the circuit court of Mason County and alleged in substance that the grand jury sitting in Tazewell County had exceeded its "jurisdiction" in handing up an indictment which stated the place of the offense to be in Mason County. The trial court denied the motion, holding that section 114-1(f) was controlling.

The record before us does not contain the report of the grand jury proceedings on either the original or the amended indictment, although colloquy in the record indicates that the reports had been furnished to defendant by way of discovery. We can therefore only attempt to reconstruct from testimony given at the hearings on the motion to suppress evidence and on the motion for arrest warrant what was probably presented to the grand jury.

On March 30, 1981, the State's Attorney of Tazewell County appeared before a judge of that county with an information charging defendant with the offense of murder; he asked leave to file the information and to present evidence in support of an arrest warrant. Leave was granted and a special agent from the Illinois Division of Criminal Investigation testified. He stated that for several months he had been investigating the disappearance of Stephen Butler and that the body of Butler had been discovered on a rural farm in Tazewell County; further, that other persons had stated that Butler and defendant were associates and had been in the Pekin area during December 1980. Other witnesses stated to the officer that defendant had confessed to them that he had killed Butler during the time that they were in the Pekin area. An individual whose name was Bow Payne, who was wanted for armed robbery in Tazewell County, had been apprehended in Houston, Texas. The officer testified that he had gone to Houston to return Payne to Illinois, and that Payne had advised him that he had assisted defendant in dumping the body of Butler into a cesspool at the farm in Tazewell County.

The court ordered the arrest warrant to issue and it was forwarded to the authorities at Reno, Nevada, where defendant purportedly was staying at the time. The Reno police apprehended defendant on March 31, 1981, on the Illinois warrant and placed him in a cell with an informant. According to the informant's testimony at a hearing on a motion to suppress, defendant expressed surprise that Tazewell County authorities were involved since, according to defendant, the killing took place in Mason County in a state forest about four miles from defendant's home after which he took the body to a farm near Pekin and dropped it in a well.

On April 2, 1981, the grand jury of Tazewell County handed up a five-count indictment charging defendant with murder. The names of the witnesses endorsed on the instrument as being those who testified before the grand jury are essentially the same as those indicated by the officer at the time of hearing on the arrest warrant: Payne, who had assisted in the disposal of the body of Butler; Payne's woman companion who had seen defendant and Payne near the cesspool on the farm where she and Payne had been living; Jack and Betty Russell to whom defendant had admitted the killing.

It is thus apparent that at the time of the original indictment neither the State's Attorney, nor any of the witnesses, knew with precision where the homicide had taken place; all that was known was that Butler's body had been discovered in Tazewell County, the autopsy revealed that death had been caused by a gunshot wound, and that defendant had admitted the offense. There is no indication in the record that the State's Attorney knew on April 2, 1981, that the offense had been committed anywhere other than Tazewell County. The informant's testimony did not come until September 1981. It therefore follows that the Tazewell County grand jury was fully authorized to proceed as it did in April.

In People v. Polk (1961), 21 Ill.2d 594, 597-98, 174 N.E.2d 393, 395, the supreme court said:

"Neither the Illinois constitution nor the legislature has attempted to define the powers of the grand jury. It has its origin in the common law and has existed for many hundreds of years. Its construction, organization, jurisdiction and method of proceeding were all well known features of the common law before the organization of the State of Illinois and have been recognized and adopted in all our constitutions and in legislation as it existed at the organization of the State. [Citation.] While the grand jury is a necessary constituent part of a court having general criminal jurisdiction [citation], its powers are not dependent upon the court but are original and complete. Its duty is to diligently inquire into all offenses which shall come to its knowledge whether from the court, the State's Attorney, its own members, or from any source, and it may make presentments of its own knowledge without any instruction or authority from the court. [Citation.]

Although we have stated a court cannot limit the scope of the grand jury's investigation [citation], it is equally true that a grand jury has no right or jurisdiction to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved, or where it otherwise lacks jurisdiction of the subject matter. [Citations.]"

Upon the discovery of a homicidal death with the corpus delicti located in Tazewell County, the grand jury of Tazewell County obviously had "jurisdiction" within the meaning of Polk. It would have been derelict in its duty to ignore the situation.

Since Polk was decided prior to the Constitution of 1970 and prior to the effective date of the Code of Criminal Procedure of 1963, we believe that the concept of jurisdiction no longer applies to a grand jury. Polk proceeded on common law principles. Article I, section 7, of the Illinois Constitution of 1970 provides in part: "The General Assembly by law may abolish the grand jury or further limit its use." It follows that the grand jury is now a creature of statute.

The prior statutes under which Polk was decided (Ill.Rev.Stat.1959, ch. 38, pars. 711-721; ch. 78, pars. 16-19) were extremely attenuated and did little, if anything, to alter the common law concepts of a grand jury and its authority and powers. Section 112-4(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1979, ch. 38, par. 112-4(a)) undertakes to define specifically the duties of the grand jury. More significantly, section 114-1(a)(5) of the Code (Ill.Rev.Stat.1979, ch. 38, par. 114-1(a)(5)) providing for a motion to dismiss the charge, formerly a motion to quash the indictment, provides as a ground therefor that the grand jury acted contrary to article 112 of the Code and that substantial injustice resulted to the defendant. Further, in section 114-1(a)(7) (Ill.Rev.Stat.1979, ch. 38, par. 114-1(a)(7)) another basis for dismissal is that the county is an improper place of trial. The further provision of section 114-1(f) (Ill.Rev.Stat.1979, ch. 38, par. 114-1(f)) is that in lieu of dismissal on account of an improper place of trial, the court may transfer the cause to the proper venue.

The result of this constitutional and statutory scheme is that actions of a grand jury may amount to a statutory violation, but they are now removed from any concept of jurisdiction, that is, the power to act; and the violation may be rectified by the trial court. Under the facts of the instant case, the problem is one of venue only.

We will not be understood as holding that the powers of a grand jury are state-wide. On the contrary, section 112-4(a) of the Code of Criminal...