People v. Petropoulos

• Decision Date: 06 May 1965
• Docket Number: Gen. No. 50190
• Citation: 208 N.E.2d 323,59 Ill.App.2d 298
• Parties: PEOPLE of the State of Illinois, Appellant, v. Ruth M. PETROPOULOS, Appellee.
• Court: United States Appellate Court of Illinois

Page 323

208 N.E.2d 323

59 Ill.App.2d 298

PEOPLE of the State of Illinois, Appellant, v. Ruth M. PETROPOULOS, Appellee.

Gen. No. 50190.

Appellate Court of Illinois, First District, Fourth Division.

May 6, 1965.

William G. Clark, Atty. Gen., Springfield, Daniel P. Ward, State's Atty., Chicago, Fred G. Leach, George W. Kenney, Asst. Attys. Gen., Elmer C. Kissane, William J. Nellis, Asst. State's Attys., of James J. Doherty, Asst. Public Defenders,

Gerald W. Getty, Public Defender of Cook County, Chicago, Chester P. Mejewski, James J. Doherty, Asst. Public Defeners, of counsel, for appellee.

ENGLISH, Justice.

The State appeals from an order of the Circuit Court discharging defendant on the statutory ground that she had not been brought to trial within 120 days from the date on which she had been taken into custody. Ill.Rev.Stat., 1963, ch. 38, § 103-5.

Defendant was arrested on January 15, 1964 for the sale of heroin, in violation of Section 3 of the Uniform Narcotic Drug Act. Ill.Rev.Stat., 1963, ch. 38, § 22-3. A preliminary hearing was convened the next day but no action was taken by the court at that time, and the matter was continued to March 5, and again to April 22, 1964. On that date a hearing was held and defendant was bound over to the grand jury. The indictment was returned on May 12, 1964. Arraignment took place on May 19, at which time the Public Defender was appointed to represent defendant. Before the case was reached for trial, defendant filed her petition for release on the ground indicated, she having been in custody continuously from the time of her arrest. The petition was allowed on May 26, 1964.

Appeal was taken by the State to the Supreme Court, which, on the State's own motion, transferred the case to this court.

The issue in the trial court turned on whether or not either of the continuances in the preliminary hearing had been occasioned by defendant. That same issue is the one which the State would now have us review. First, however, we must consider the primary point made by defendant that the State has no right of appeal in this type of case. The State's Right to Appeal.

Historically, in Illinois criminal cases the State had no right to appeal or writ of error either at common law (People v. Dill, 2 Ill. 257 (1836); People v. Royal, 2 Ill. 557 (1839) on double jeopardy grounds), or under the statute of 1845 (People v. Barber, 348 Ill. 40, 41, 180 N.E. 633, 92 A.L.R. 1131, regardless of the jeopardy question).

In the statute of 1874 it was expressly provided that 'in no criminal case shall the people be allowed an appeal, writ of error or new trial.' Ill.Rev.Stat., 1931, ch. 38, § 747. After almost a century legislative provision was finally made for a limited right of review on behalf of the State, when that section of the statute was amended in 1933 by adding:

'The People may sue out writs of error to review any order or judgment quashing or setting aside an indictment or information.' Ill.Rev.Stat., 1933, ch. 38, § 747.

In the same amendatory act the broad prohibition against appeals by the State was consequently narrowed to provide only that 'in no criminal case shall the People be allowed a new trial.'

In a fairly long line of cases (including People v. White, 364 Ill. 574, 5 N.E.2d 472; People v. Vitale, 364 Ill. 589, 5 N.E.2d 474; People v. Moore, 410 Ill. 241, 102 N.E.2d 146; People v. Mosby, Supreme Court No. 36052, Sept. 1960; People v. Drymalski, 22 Ill.2d 347, 175 N.E.2d 553) it was consistently held that the State's authority to appeal was a narrow right which could not be expanded by the courts beyond the specific statutory language. Thus it came to be considered 'established practice' (Moore) that the only unfavorable judgments from which the State might seek relief in a reviewing court were those in which the indictment was quashed for failure to meet material requirements. The Supreme Court declined to hear, for example, cases involving State appeals from a successful plea of former conviction (Vitale), a plea in bar based on the defendant's good-faith performance of judicial duties (Drymalski), and a discharge under the 'Four-Month Act' (Mosby). ¹

The issue now confronting us is whether or not this law has been changed by adoption of the amended Article VI of the Illinois Constitution, the Code of Criminal Procedure, and new Supreme Court Rules, all of which became effective on January 1, 1964. On the same date, repeal of Section 747 of the old criminal code became effective.

The constitution, previously silent on this point, now provides that 'after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal.' Art. VI, § Z. We take it as settled that this prohibition against State appeal from an acquittal after a trial on the merits does not automatically authorize an appeal from all other orders or judgments in criminal cases. It merely has the effect of leaving that large area open to the legislature or to the Supreme Court as a field within which either may act. People v. Barber, 348 Ill. 40, 46, 180 N.E. 633, 92 A.L.R. 1131.

Our next inquiry, then, is to ascertain whether any steps have been taken to occupy this field. We find that they have, through the enactment of Section 120- 1 of the Code of Criminal Procedure (Ill.Rev.Stat., 1963, ch. 38, § 120-1) which reads in pertinent part:

' § 120-1. Scope of Appeal.

'(a) Except as authorized by this Article and Rules of the Supreme Court the State may not appeal in a criminal case.

'(b) The State may appeal from any court an order or judgment the substantive effect of which results in:

'(1) dismissing an indictment, information or complaint; or

'(2) arresting judgment because of a defective indictment, information or complaint.'

This section of the code has been superseded by Rule 27 of the Supreme Court (Ill.Rev.Stat., 1963 (1964 Supp.), ch. 110, § 101.27) which declares in pertinent part as follows:

'(4). In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in dismissing an indictment, information or complaint; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.'

It may well be that this rule of the Supreme Court has authorized appeals by the State to the full extent permitted by the constitution. We need not decide the question on that broad a base, however, as we must only discover if the rule furnishes authority for appeal in the case at bar.

The scope of the rule is very broad, indeed. The State may now appeal from any order the substantive effect of which is dismissal of an indictment. While defendant in the instant case filed a 'Petition for Discharge,' and the order of the court was that it 'doth allow said motion,' the proper procedure under the new code (Section 114-1) would have been by a motion to dismiss. In any event, we will consider that the order appealed from is one 'the substantive effect of which' has resulted in dismissing the indictment. Supreme Court Rule 27, quoted above.

The language of the rule, applying as it does to orders dismissing an indictment, leads us back to the code to determine its scope. Section 114-1 of the code (Ill.Rev.Stat., 1963, ch. 38, § 114-1) reads in pertinent part:

§ 114-1. Motion to Dismiss Charge.

'(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:

'(1) The defendant has not been placed on trial in compliance with Section 103-5 of this Code;

'(2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of the 'Criminal Code of 1961', approved July 28, 1961, as heretofore and hereafter amended;

'(3) The defendant has received immunity from prosecution for the offense charged;

'(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;

'(5) The indictment was returned by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant;

'(6) The court in which the charge has been filed does not have jurisdiction;

'(7) The county is an improper place of trial;

'(8) The charge does not state an offense;

'(9) The indictment is based solely upon the testimony of an incompetent witness;

'(10) The defendant is misnamed in the charge and the misnomer results in substantial injustice to the defendant.

'(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.

* * *

* * *

'(e) Dismissal of the charge upon the grounds set forth in subsections (a)(4) through (a)(10) of this Section shall not prevent the return of a new indictment or the filing of a new charge * * *.'

Defendant relies strongly upon the comments of the committee which prepared the tentative draft of the code for presentation to the legislature in 1961, and we recognize this as an appropriate source of assistance in determining legislative intent. People v. Tuohy, 31 Ill.2d 236, 239, 201 N.E.2d 425. The committee reported that subsections (b)(1) and (2) ² of section 120-1 'merely codify former section 747.' With due respect to that learned committee, we cannot agree.

It must be noted that there is a consonance of terminology in the language of Section 120-1, Supreme Court Rule 27, and Section 114-1. They all contain a form of the verb 'dismiss' in describing the type of trial court action with which we are concerned. ³ Under these circumstances the words must be given a consistent meaning unless a contrary intent is clearly...