Error to the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Reversed and remanded.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
On September 4, 1963, an Information was filed in the Circuit Court of Winnebago County charging the plaintiff in error (hereinafter called defendant) with having committed the offense of Indecent Liberties with a Child in violation of chapter 38, section 11-4, Illinois Revised Statutes, 1961. Thereafter, on September 19, 1963, the State's Attorney for Winnebago County filed a Petition to adjudicate the defendant a sexually dangerous person pursuant to the Sexually Dangerous Person Act. (Ill Rev Stats 1961, c 38, Pars 820.01 et seq.) A hearing was held on October 9, 1963, on the Petition and the defendant was adjudicated a sexually dangerous person and committed to the custody of the Director of Public Safety.
The defendant brings this appeal on the grounds that he was denied certain of his rights under the constitutions of both the United States and the State of Illinois. He urges that he was deprived of his right to be held to answer for the crime with which he was charged only by indictment by a grand jury. He further contends that the trial court unlawfully failed to advise him of his right to counsel before accepting his waiver of his right to be proceeded against by indictment.
Section 8 of Article II of the Constitution of the State of Illinois (1870) provides as follows:
"No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases."
Section 702 of Division X of the old Criminal Code (Ill Rev Stats 1961, c 38, § 702) contained a provision for a waiver by the accused of his right to be proceeded against by grand jury indictment, to-wit:
"702. Prosecution in circuit courts: All offenses cognizable in the said courts shall be prosecuted by indictment, or, except for the crimes of treason, murder or manslaughter, by information if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment. The prosecution of a felony under an information shall be conducted in accordance with the statutory requirements of proceedings under an indictment."
Rule 26(3) of the Supreme Court Rules (Ill Rev Stats 1961, c 110, § 101.26(3)) elaborates and expands this provision to include the requirement that the right to prosecution by indictment be "understandingly" waived by the accused. It provides:
"The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. The inquiries of the court and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case."
It is significant that the explicit requirement that the accused "understands" his waiver of this right has been included in the new Criminal Code. (Ill Rev Stats 1965, c 38, § 111-2).
The crime of Indecent Liberties with a Child, with which defendant was charged, provides that a person so convicted "shall be imprisoned in the penitentiary from one to twenty years" and is thus, by definition, a felony.
The record before us contains the following colloquy between the court and the defendant relative to his right to be held to answer for this crime on indictment by a grand jury:
"THE COURT: You are Herbert F. ...