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People v. Hemphill

MAY 25, 1966.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM HEMPHILL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Morgan County; the Hon. PAUL C. VERTICCHIO, Judge, presiding. Affirmed.

TRAPP, P.J.

Under an indictment returned on December 23, 1964, defendant, upon his plea of guilty, was convicted of the crime of murder and sentenced to the penitentiary for not less than 20 nor more than 40 years.

Defendant contends that certain defects in the indictment require an arrest of the judgment, and that he be discharged.

The first issue raised is that the indictment failed to state the time and place of the alleged offense as required by Chap 38, § 111-3 (Ill Rev Stats). Defendant relies upon People v. Blanchett, 55 Ill. App.2d 141, 204 N.E.2d 173, decided by this court. The Supreme Court, in People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97, has determined the issue contrary to defendant's contentions.

It is next contended that the indictment is fatally defective in that it fails to contain the formal language prescribed in art VI, § 33 of the Constitution of 1870:

"All process shall run: In the name of the People of the State of Illinois; and all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois; and conclude: Against the peace and dignity of the same. . . ."

Such requirements are entirely absent from the Judicial Article adopted to become effective on January 1, 1964.

It is argued that there is neither an express nor an implied repeal of such § 33 in the amendment to the Constitution adopted in 1962, effective January 1, 1964, known as the Judicial Article, and that hence, the formal language whereby indictments were required to begin "In the name and by the authority of the People of the State of Illinois," and to conclude, "Against the peace and dignity of the same" remains in effect. Our Supreme Court has, heretofore, determined that such formal language was mandatory in an indictment. The indictment in issue does not include such formal language. There is thus the contention that the indictment is fatally defective and that the defendant must be discharged under the authority of the decisions of the Supreme Court.

The present Judicial Article was voted upon by the people pursuant to House Joint Resolution No. 39, Laws, 1961, in part, as follows:

"Be It Resolved by the House of Representatives of the Seventy-second General Assembly of the State of Illinois, the Senate concurring herein, that there shall be submitted to the electors of this State for adoption or rejection . . . . in the manner provided by law, a proposition to amend Article VI of the Constitution, to read as follows: . . . ."

We have examined the several joint resolutions of the Senate and House of Representatives relating to the amendment of Article VI of the Constitution of 1870, considered by those bodies in their sessions in 1953, 1955, 1957 and 1959, as well as the resolution quoted.

Each of the resolutions was in the language:

". . . . in the manner provided by law, a proposition to amend Article VI of the Constitution, to read as follows: . . . ." (Emphasis supplied.)

Each of the resolutions omitted reference to any provision for the form of process as was provided in § 33 of art VI, Constitution of 1870, although it may be presumed that the Legislature was aware that the Supreme Court ...


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