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People Ex Rel. Elliott v. Covelli







Rehearing denied May 18, 1953.

The Attorney General of the State of Illinois, by leave of this court first had, filed his original petition for a writ of mandamus directed to the Hon. Daniel A. Covelli, sitting as judge of the criminal court of Cook County, to compel him, first, to vacate and expunge an order granting a petition to suppress evidence on motion of defendants in People v. Lavin et al., and second, to enter nunc pro tunc as of July 12, 1952, an order of nolle prosequi on petitioner's motion in that case.

In December of 1951 the grand jury of Cook County returned four indictments against Thomas F. Lavin, Jr., and two others, all dealing with various alleged violations of the Illinois Cigarette Tax Act. (Ill. Rev. Stat. 1951, chap. 120, par. 453.1 et seq.) All these indictments were in due course assigned by the chief justice of the criminal court of Cook County to Judge Covelli, a judge of the superior court of Cook County sitting as judge of the criminal court thereof, for trial and disposition. On the trial of one of the indictments, which lasted almost three weeks, the jury returned a verdict of not guilty against all defendants, after deliberating almost twenty-four hours, and judgment was duly entered on the verdict. One of the remaining indictments, which charged substantially the same offense as that charged in the indictment on which the defendants were acquitted, was nolled. The remaining untried indictments charged the defendants with counterfeiting Illinois cigarette tax meter stamps in violation of section 22 of the Illinois Cigarette Tax Act and with conspiracy to violate various provisions of that act.

These proceedings were instituted and prosecuted pursuant to section 16 of the Illinois Cigarette Tax Act, which directs that all legal proceedings thereunder shall be instituted and prosecuted by the Attorney General. Ill. Rev. Stat. 1951, chap. 120, par. 453.16.

After the one indictment was nolled, the Attorney General suggested to the court that the remaining cases be transferred to the chief justice for reassignment. The court continued the case, stating that the chief justice, in assigning cases at the opening of the term, had advised all judges that he did not wish to continue the practice, then prevalent among trial judges, that in the event the chief justice sent three indictments to the trial judge he would try one and send back the other two, but on the contrary that the chief justice directed the trial judges to try all indictments assigned, to which all the trial judges agreed.

One of the defendants, Thomas F. Lavin, Jr., thereafter filed his petition to suppress certain evidence as having been seized in an illegal search, such evidence having been offered by the People and received in evidence at the trial on the first indictment. The petition to suppress came on for hearing before Judge Covelli, who had presided over and heard the evidence in the first trial. The defendant introduced testimony in support of his petition, and after the defendant rested, the People proceeded with their proof. After two witnesses for the People had testified, the court stated "On the evidence I have already heard, the motion to suppress is sustained." At that time the People apparently had one more witness to present and had made no oral argument.

Under such circumstances, at the time the court indicated that the motion to suppress was sustained the special assistant Attorney General stated, "The Court has not heard the evidence, he has given me no opportunity to present it to the Court or the cases with respect to it * * * I can only state to this Court now that I respectfully request this Court to retransfer this case."

Upon a denial of such request, the Attorney General orally moved to nolle prosse the pending cases, which motion was denied on July 10, 1952.

Two days later the Attorney General presented a written motion for a nolle prosequi. The written motion, after setting forth the entry of an order sustaining the petition to suppress before completion by the People of its evidence and without opportunity to present argument, proceeded to state that it was the opinion of the Attorney General that the People did not have sufficient evidence admissible under such ruling to result in a conviction, that it was the Attorney General's considered view that it was not in the best interests of the administration of justice in the State of Illinois to proceed with the prosecution of the defendant in these cases at this time under these indictments, and that to proceed with the prosecution under these indictments at this time under the order of court suppressing evidence would result in a miscarriage of justice.

The court intimated that it would grant the motion of the Attorney General to nolle if the Attorney General agreed not to seek other indictments against the defendant. When the Attorney General refused to make that commitment the trial court denied the motion. Thereafter, the Attorney General filed a nolle prosse, to which the court refused to give any effect, and the cases were set for trial.

The facts from which this petition for writ of mandamus originated present to the court two issues. The first is whether the Attorney General of the State has the constitutional power in the specific situation presented by the instant case to nolle prosse the proceeding in his absolute discretion free of encroachment by the judiciary. The second issue is whether the trial court acted so arbitrarily and capriciously in sustaining defendant's petition to suppress evidence as to require this court to award the writ.

The legislature in this State has not by specific statutory authority endowed the Attorney General with power to nolle prosse criminal prosecutions. It thus becomes a question for decision whether, in the situation we find here, there is included among the inherent powers of the Attorney General the power to nolle prosse, the maintenance of the proceeding in his judgment being no longer in the public interest.

In People ex rel. Barrett v. Finnegan, 378 Ill. 387, this court considered the nature of the office of Attorney General and the powers appendant thereto, observing, "The office of Attorney General, as it existed at common law, is one of ancient origin. He was the only law officer of the Crown. (4 Reeves Hist. Eng. Law, chap. 25, p. 122.) The prerogatives which pertained to the crown of England under the common law, in this country are vested in the people, and the necessity for the existence of a public officer charged with the protection of public rights and the enforcement of public duties, by proper proceedings in the courts of justice, is just as imperative here as there. In this State, the constitution, by creating the office of Attorney General under its well-known common-law designation and providing that he shall perform such duties as may be prescribed by law, engrafted upon the office all the powers and duties of an Attorney General as shown at the common law, and gave the General Assembly power to confer additional powers and impose additional duties upon him. The legislature cannot, however, strip him of any of his common-law powers and duties as the ...

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