Appeal from the Circuit Court of Morgan County; the Hon. JOHN
B. WRIGHT, Judge, presiding. Affirmed.
The People appeal from a judgment dismissing an indictment charging armed robbery. Such order was pursuant to chapter 38, § 114-1 of the Code of Criminal Procedure (Ill Rev Stats 1963) and entered upon the ground that the defendant had been denied a speedy trial under the Constitution of the United States and of the State of Illinois, and chapter 38, § 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1963).
On September 7, 1965, a verified complaint was filed in the magistrate division of the court, bail fixed and a warrant of arrest issued. On or about October 26, 1965, the Morgan County authorities discovered that the defendant was in the penitentiary at Menard, following a conviction in Greene County, Illinois, and serving a sentence of one to five years. On the latter date a "detainer warrant" was placed with the warden of the penitentiary for the arrest of the defendant.
On April 21, 1966, defendant filed his "Motion to Dismiss Charge" contending that he had not been accorded a speedy trial as provided in the Constitution of the United States and of the State of Illinois, and under the provisions of § 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1963). On May 25, 1966, defendant was indicted for the offense set out in the complaint, and on July 8, 1966, the State's Attorney procured a writ of habeas corpus ad prosequendum in the trial court pursuant to which on July 13, 1966, defendant appeared and the public defender was appointed to represent him. Subsequently, on July 20th, at the request of the defendant, the court dismissed the public defender and the matter was continued to allow the court time to appoint other counsel. On July 21, 1966, on the court's own motion, it considered the motion to dismiss the charge theretofore filed and entered an order dismissing the "cause" and remanded the defendant to the penitentiary.
The contentions of the State's Attorney include the propositions that the defendant had never been arrested or held in custody by virtue of the detainer warrant; that the offense charged is a felony which could only be prosecuted by indictment unless appropriate waiver was made, so that there were no proceedings pending in Morgan County by which defendant could have been prosecuted for armed robbery; and, finally, that the defendant was, in fact, brought to trial within 120 days after the date of the indictment.
The contention that the defendant was never arrested, or in custody pursuant to the warrant issued by the magistrate, calls for review of the effects of the prosecutive action. It is clear that pursuant to the complaint an arrest warrant was issued and bail fixed. We have found neither statutory nor case law definition of a detainer warrant. In reply to our questions during oral argument counsel seemed to agree that it was an arrest warrant that was not served promptly, but was held by administrative authorities to be served at the time of defendant's release from his then incarceration. This appears to be a matter of comity and cooperation between law enforcement officials performed without statutory or other authority.
The Code of Criminal Procedure, chapter 38, § 107-5(c) (Ill Rev Stats 1963) provides that an arrest may be made anywhere within the jurisdiction of the State. Paragraph 107-9(d) (6) provides that the warrant shall command the arrest of the person against whom the complaint is made.
The VI Amendment of the Constitution of the United States and art 2, § 9 of the Constitution of the State of Illinois, provide that an accused shall have the right to a speedy trial. The Code of Criminal Procedure, chapter 38, § 103-5(a) (Ill Rev Stats 1963) provides that:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody. . . ."
The State's Attorney knew, as of October 26, 1965, of the whereabouts of the defendant within the State. It is clear that there was authority to serve the warrant and to proceed with the prosecution of the matter. He had, at all times, the procedural means which were ultimately employed to bring the defendant into court for arraignment and trial, as was actually done approximately 11 months following the issuance of the complaint. Here the only affirmative step taken was to insure that the defendant would not be released from custody at the penitentiary, but would be served with the pending warrant.
The Supreme Court has stated that it will not permit the State to evade the right of an accused to a speedy trial. People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242. In that case defendant was in custody in Champaign County upon a federal warrant. He was served with an arrest warrant issued upon a complaint filed in that county and served with a copy of the complaint. Counsel was appointed. The next day such complaint was dismissed, but a second complaint for the same offense was filed, and a second warrant was issued but not served. The Champaign County authorities then relinquished defendant to DeWitt County for trial upon other charges, a "detainer" being sent to the latter county which followed the defendant to the penitentiary where he was sentenced. Some 3 weeks later the defendant was indicted in Champaign County. When he was ultimately returned to Champaign County for trial, a motion for discharge under the statute was made. It was then contended by the State that the defendant had never been in custody for the Champaign County offense within the meaning of chapter 38, § 103-5 (Ill Rev Stats 1963). The Supreme Court found that such contention was unsound in that the defendant had been served with a warrant and should be considered in custody thereunder. The court stated that the State would not be permitted to evade the statute by a voluntary dismissal of the charges followed by a new filing of identical charges, and further declared that a voluntary relinquishment of custody to another jurisdiction could not be employed to deny the defendant the right to a speedy trial.
[3-5] Again, in People v. Patheal, 27 Ill.2d 269, 189 N.E.2d 309, the defendant, while on parole, was arrested upon a complaint and a preliminary hearing was held, and nearly 4 months after the arrest he was delivered to a parole agent as a parole violator. He was subsequently indicted upon the offense charged, and when defendant was discharged from the penitentiary he was taken into custody under such indictment. Upon motion for discharge, the State contended that the defendant had never been in custody for the offense charged in the complaint, but had been in the custody of the State as a parolee. The Supreme Court again pointed out that where the State knew of the whereabouts of the defendant but made no recognition of the right to a speedy trial through efforts to bring the defendant from the penitentiary, it would not permit the constitutional right to be thwarted through such technicalities or fictions. In People v. Swartz, 21 Ill.2d 277, 171 N.E.2d 784, the State voluntarily relinquished custody of the defendant to Federal authorities, striking the indictment under which he was held with leave to reinstate. The Supreme Court held that the statute could not be evaded by refusing to prosecute through turning the accused over to Federal authorities. In People v. Emblen, 362 Ill. 142, 199 N.E. 281, the defendant was arrested without a warrant. He was subsequently indicted but no warrant was ever served by reason of the indictment. The evidence disclosed that the defendant was actually held without a warrant for 7 months, purportedly for investigation. It was argued by the State that he had never been restrained upon the charge for which indicted. The Supreme Court again referred to technical evasions of the statute, saying at page 146:
"Officers may not thwart the provisions of the constitution and the statute by arresting without warrant and incarcerating a prisoner without an order of ...