People v. Jones

• Decision Date: 21 December 1971
• Docket Number: Gen. No. 71--148
• Citation: 2 Ill.App.3d 575,277 N.E.2d 144
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald W. JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 144

277 N.E.2d 144

2 Ill.App.3d 575

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald W. JONES, Defendant-Appellant.

Gen. No. 71--148.

Appellate Court of Illinois, Second District.

Dec. 21, 1971.

Julius Lucius Echeles, Frederick Cohn, Chicago, for defendant-appellant.

Albert N. Kennedy, State's Atty., Edwin W. Merrick, Asst. State's Atty., Dixon, for plaintiff-appellee.

ABRAHAMSON, Justice.

Defendant Donald W. Jones appeals, after a jury trial, from a conviction of reckless homicide for which he was sentenced to a term of two to four years in the State penitentiary.

The defendant contends that the indictment was void for vagueness in that it failed to specify the acts relied upon by the State for a conviction; that the defendant's motion for change of venue was erroneously denied; that the defendant was not proved guilty beyond a reasonable doubt; and that the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was violated. The indictment, which was filed on August 27, 1970, charged that on April 4, 1970 the defendant 'committed the offense of Reckless Homicide in violation of Paragraph 9--3, Chapter 38, Illinois Revised Statutes, 1969, in that he killed an individual without lawful justification when he, while operating a motor vehicle on Illinois Route 26, approximately one mile north of Dixon, Illinois, in a reckless manner likely to cause death or great bodily harm, did by such act cause the death of Donald H. Grobe.'

The claim that the indictment was void for vagueness is based on the assertions that the indictment contains no facts that would amount to operating a vehicle in 'a reckless manner,' and that an indictment must set forth sufficient facts to afford the accused a specific designation of the offense charged so that he will be able to adequately prepare a defense and plead any judgment in bar of a subsequent prosecution for the same offense. The defendant cites People v. Griffin, 36 Ill.2d 430, 223 N.E.2d 158, in support of his argument. In the Griffin case, and in People v. Green, 368 Ill. 242, 254, 255, 13 N.E.2d 278, the court held that indictments charging 'reckless driving' in the language of the statute, but which failed to specify any acts, were not sufficient to protect the defendant against double jeopardy. The State does not dispute the holding in these cases but points out that the gist of the offense herein is not the facts which constitute 'reckless driving' but is the facts which constitue the offense of 'reckless homicide.' The State cites People v. Mowen, 109 Ill.App.2d 62, 69, 248 N.E.2d 685, 688, as illustrating the distinction between a charge of reckless driving and that of reckless homicide. In the Mowen case, the defendant was charged with several offenses. There, Count I, of the indictment, charged the defendant with involuntary manslaughter 'in that he, acting in a reckless manner, killed Martha Porter with an automobile, without lawful justification, * * *.' The court in that case sustained Count I against the contention that it was vague and uncertain, and also against the contention that the charge was not specific enough to enable the defendant to prepare a defense and to plead the judgment in bar of a subsequent prosecution for the same offense. The court there commented upon the Griffin and Green cases in which the charge was that of reckless driving and not reckless homicide, and in sustaining Count I (involuntary manslaughter) said the particular act relied upon to sustain the charge was the striking of Martha Porter and that he could have struck and killed Martha Porter only once, thus eliminating any prospect of double jeopardy. Likewise, the defendant herein could have caused the death of Donald Grobe only once. For the reasons stated in Mowen, the indictment herein is sufficient. Moreover, the defendant should have filed a motion for a bill of particulars, if he desired more information. Ill.Rev.Stat.1969, ch. 38, par. 111--6.

In considering the defendant's contention that the court improperly denied his motion for change of venue, we must consider the language of the affidavit in support of defendant's motion for change of venue, filed at 3:45 p.m. on October 14, 1970, one day before the trial took place. The affidavit was signed by the attorney for the defendant, the pertinent provisions of which are as follows:

'6. It is my opinion based upon the happenings of this date in the chambers of the aforesaid named judge wherein were present the said judge, the state's attorney, the said judge's secretary and myself, and wherein a negotiated plea and the state's attorney's proposed recommendation as to disposition was discussed, and the highly prejudicial statements made by the said judge and the bias expressed by him would most certainly prevent the obtaining by the defendant of a fair trial.'

The defendant has cited People v. Wallenberg, 24 Ill.2d 355, 356, 181 N.E.2d 146, 147, wherein the court stated, 'The right to a change of venue on account of the alleged prejudice of the trial judge is absolute if the requirements of the statute are met.'

The statute pertaining to the substitution of judges in a criminal case is contained in section 114--5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1969, ch. 38, par. 114--5). Section 114--5(a) provides in part that, if a motion is made in writing within ten days after a cause involving only one defendant has been placed on the trial call of a judge for a substitution of a judge on the grounds that the judge is prejudiced against the defendant so that he cannot receive a fair trial, the cause must be transferred to another court, or judge, not claimed to be prejudiced. However, section 144--5(c) provides that in addition to the absolute right for a substitution of judges under section 114--5(a), such a motion may be made at any time for cause, if supported by an affidavit, and upon the filing of such a motion, the court shall conduct a hearing to determine the merits of the motion. A part of the committee comments to section 114--5 states, 'Subsection (c) provides for an unlimited number of motions for cause, supported by affidavit, but it should be noted that the change will not be automatic in such cases.' Subsection (c) is discussed in People v. Lagardo, 82 Ill.App.2d 119, 127, 226 N.E.2d 492, and it is stated that under subsection (c) the defendant is entitled to a hearing and it is reversible error for the judge to deny the motion for cause without a hearing.

The motion herein did not qualify as a motion under section 114--5(a) for the reason that it was not made within ten days after the case had been placed on the call of the trial judge, but it does qualify as a motion made for substitution of a judge for cause under section 114--5(c). A hearing was held by the trial judge on the morning of October 15, 1970, before the actual trial began on that day. The motion on its face reveals that a pre-trial conference was held on October 14, 1970, wherein there was an attempt to negotiate a plea.

In People v. Lawrence, 29 Ill.2d 426, 427, ...