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City of Gibson City v. Mcclellan

JULY 20, 1965.

CITY OF GIBSON CITY, PLAINTIFF-APPELLANT,

v.

ROBERT W. MCCLELLAN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Ford County; the Hon. IVAN JOHNSON, Judge, presiding. Appeal dismissed.

SMITH, P.J.

The Magistrate's Division of the Circuit Court of Ford County allowed defendant's motion to dismiss a prosecution for violation of a penal ordinance of the city and released the bond of $25. The motion was based on the proposition that defendant was not tried within 120 days after demand for trial. The city appeals from the dismissal order.

The record shows the arrest of the defendant on June 26, 1964, his appearance with counsel before a magistrate the same day, and the following docket entry:

"6-26-64. Defendant appears in Court with counsel and asks for a jury trial. Bond set at $25.00. Cash bond posted. Case continued until next impaneled jury."

One hundred and thirty-nine days later defendant moved for dismissal for failure of the city to bring him to trial within 120 days as required by the Code of Criminal Procedure. Ill Rev Stats (1963) c 38, § 103-5. Paragraph (b) of this section reads as follows:

"Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal."

Both counsel agree that this statute applies to the violation of a penal ordinance of a city. Thus they give practical effect to § 102-15 which provides:

"`Offense' means a violation of any penal statute of this State or of any penal ordinance of its political subdivisions."

It should also be observed that § 102-9 defines a complaint as a ". . . verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense." To reverse this order of dismissal, the city appeals.

Blanketed in as it is under the Code of Criminal Procedure, we are at once confronted with the right of the city to appeal from an adverse decision in a prosecution to enforce a penal ordinance of the city. Historically, the right of the prosecution to appeal in criminal cases has slowly evolved by legislative creation, coupled with legislative and constitutional prohibitions, to permit review by the State of adverse rulings on the validity of indictments and informations. People v. Moore, 410 Ill. 241, 102 N.E.2d 146, Ill Rev Stats 1949, c 38, § 747 and People v. Drymalski, 22 Ill.2d 347, 175 N.E.2d 553. In People v. Mosby, No. 36052, decided without opinion at the September Term 1960, our Supreme Court allowed defendant's motion to dismiss People's petition for writ of error to review a judgment of the Criminal Court of Cook County discharging a defendant for failure to bring him to trial within the four months' rule. The apparent reason for such action as disclosed by the briefs of both sides was that no appeal or right of review is available to the People in such a case because the validity of an indictment was not involved. The action in Mosby was patently consonant with the law as it existed prior to January 1, 1964.

If any change now exists in the law, it must, we think, find its basic origin in Rule 27 of the Supreme Court effective January 1, 1964. 28 Ill.2d xx. It reads in part as follows:

"Rule 27. (1) This rule supersedes and replaces sections 120-1, 120-4, 121-2, 121-3, 121-4, 121-6, 121-7, 121-8, 121-10, 121-11, 121-12 and 121-13 (a) (b) and (d) of the Code of Criminal Procedure of 1963. Ill. Rev Stats 1963, chap 38.

"(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. . . ."

In the application of this rule to the case at bar, it is neither for us to blaze new trails nor to depart from the plain language of the rule as we are able to comprehend and understand it. We do not think it can shed the shell of its birthplace like the locust nor disclaim the historical legal parentage that gave it birth. It must be appraised in the light of its ancestry and judged by the ends it seeks to accomplish. In this context, we now turn to the substantive effect of the trial court's action in the case. It is the substance of that action which controls and not its label. People v. Ferguson, 20 Ill.2d 295, 170 N.E.2d 171. The action of the trial court did not involve a trial of matters involving the adequacy or sufficiency of the indictment. It related to factual matters arising after the indictment which as ...


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