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People v. Clark

DECEMBER 10, 1968.




Appeal from the Circuit Court of Rock Island County, Fourteenth Judicial Circuit; the Hon. GEORGE O. HEBEL, Judge, presiding. Judgment affirmed.


Rehearing denied January 2, 1969.

A jury in the Circuit Court of Rock Island County found the defendant, James Clark, guilty of the crime of forgery, and he was thereafter sentenced to the penitentiary for a term of not less than two nor more than ten years. On this appeal he contends that he is entitled to discharge because he was not tried within the 120-day period fixed by law, that he was not proved guilty beyond a reasonable doubt, and that various errors deprived him of a fair trial.

On January 14, 1967, defendant and two companions drove from Peoria to Rock Island and visited a number of stores in the latter city where they either cashed, or attempted to cash, several checks. The manager of a store who had refused to cash a check became suspicious and informed the police, to whom he evidently gave a description of the car in which the trio were riding. Soon after, a patrolman stopped the vehicle and arrested its occupants, including defendant. The latter was not tried in Rock Island County until July 13, 1967, some 180 days later, and it is undisputed that he was continuously in the custody of either Peoria or Rock Island County authorities during that period.

The sequence of the significant events occurring between the dates of arrest and trial was as follows: (1) On January 15, 1967, before any formal action had been taken or completed against defendant, the Rock Island Police Department turned defendant over to the sheriff of Peoria County, where defendant was under indictment for an armed robbery, but requested that he be held for prosecution in Rock Island County; (2) on February 17, during the course of the next regular session of the grand jury, an indictment was returned to the circuit court of Rock Island County charging defendant with the offense of forgery, in that he had knowingly presented to Geifman Food Store, Inc., a check for $97.20 capable of defrauding; a bench warrant issued pursuant to the indictment but was not served on defendant; (3) sometime prior to March 27 the State's Attorney learned in a telephone conversation with the Peoria County sheriff that defendant was to be tried in the latter county on March 27; (4) on March 27 the State's Attorney sent a copy of the bench warrant to the Peoria sheriff intending it as a detainer warrant; (5) on April 19 defendant was returned to Rock Island County; (6) on April 20 he was brought before the circuit court for arraignment, at which time the public defender was appointed as counsel and defendant ordered to plead by May 1; (7) on April 25, the 101st day after his arrest by the Rock Island police, defendant filed a motion for a list of witnesses, confessions, etc. and an order was entered giving the State's Attorney 10 days to comply; (8) on the same date, April 25, defendant filed, but did not call up for hearing, a second motion for a bill of particulars; (9) on May 23, the 129th day after his arrest, defendant filed a motion for discharge on the ground that he had not been tried within 120 days from the date he was taken into custody, which motion was denied on June 16; (10) on motion of defendant, an order was entered June 26 giving him leave to withdraw his motion for a bill of particulars; and (11) on July 13, 1967, immediately prior to the start of his trial, defendant was arraigned and entered a plea of not guilty.

Under section 9 of article II of the Illinois Constitution an accused is accorded the right to a speedy trial. Implementing this constitutional mandate is section 103-5 (a) of article 103 of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1965, c 38, par 103-5(a)), which provides:

"(a) 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 unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal."

This section, as noted by the committee which drafted it, "Codifies Ill Rev Stats 1961, c 38, § 748, and the Illinois decisions construing it." (See Smith-Hurd, Ill Anno Stats, c 38, par 103-5, p 17; emphasis added.) We are here confronted with two matters of construction. First, the intricate question of when the statutory period of 120 days started to run; and second, a determination of whether defendant's motion for a bill of particulars was a delay occasioned by defendant which tolled the running of the 120-day period.

Based upon decisions later to be discussed, it is the contention of defendant that the period commenced on January 14, 1967, the date he was arrested by the Rock Island police. The People, on the other hand, argue that the 120 days started to run on March 27, 1967, the date the copy of the bench warrant was forwarded to the Peoria authorities. And while we have found no decision construing and applying the statute, or its antecedent, under precisely similar facts, it is our belief that People v. Jones, 33 Ill.2d 357, 211 N.E.2d 261, and People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795, chart the course we must follow.

In the Jones case, which was a review of a conviction of armed robbery and assault with intent to kill, the defendants were arrested on June 3, 1961, in connection with a number of crimes totally unconnected with the robbery and assault. On June 10, 1961, the victim of the robbery and assault saw a picture of defendants in a newspaper, came to the police station and signed complaints against them. Subsequently, on June 23, 1961, defendants were indicted for unrelated crimes and these causes were continued from time to time on application of defendants until February 3, 1962, when they were adjudged guilty of murder. While a motion for a new trial was pending in the murder case, an indictment was returned on February 9, 1962, charging defendants with the armed robbery and assault. Thereafter, on February 28, 1962, defendants filed a motion for discharge in respect to the latter indictment on the ground that they had not been tried within 4 months from the date of "commitment," as the statute then provided. (Ill Rev Stats 1961, c 38, par 748.) The motion was denied and, on appeal, the Supreme Court affirmed. In so doing, the court rejected the contention of defendants that their commitment must be regarded as having commenced either on June 3, 1961, the date of their arrest, or on June 10, 1961, the date of the complaints giving rise to the indictment, and held that it was not until the armed robbery and assault indictment was returned on February 9, 1962, that defendants could be considered as having been "committed" for such offenses. Admittedly the present statute speaks of "custody" rather than "commitment," but we fail to see how this change provokes a different construction. The principle we derive from Jones is that the statutory period does not start to run until an accused is confined for the crime for which discharge is sought.

People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795, concerned an accused who was involved in a holdup in Lake County on August 18, 1936. The proceeds of the robbery were transported into Cook County, whereupon defendant was arrested, and held in custody until November 18, 1936. Although indicted by the Cook County grand jury for larceny, the indictment was stricken with leave to reinstate on November 18, whereupon the defendant was surrendered to the sheriff of Lake County who placed him in the jail of Lake County where he remained until February 8, 1937. The defendant was tried on a charge of robbery. The criminal court of Cook County had jurisdiction to try defendant on the charge of larceny under the statute which provides that where property is stolen in one county of the State and carried into another, the jurisdiction shall be in any county into or through which the property may have passed, or where it may be found. The defendant in that case contended that the four months' period should have started from the first day of his confinement in the Cook County jail, but the court holding adversely said, at page 214: "The only court competent to try defendant for robbery was the court having jurisdiction of the offense, — namely, the circuit court of Lake county. He had been neither indicted nor held in custody in Cook county on the charge of robbery. Since the one court having jurisdiction of the crime of robbery tried defendant within four months of the date of his commitment on this charge, it follows, necessarily, that his right to a speedy trial was not invaded and his motion for discharge properly denied."

When the logic and rationale of the Jones and Stillwagon decisions are applied in the instant case, it is our opinion that defendant cannot be considered to have been in custody for the crime for which he seeks discharge, viz., the issuance of a fraudulent check to Geifman Food Store, Inc., until April 19, 1967, the date he was returned to the custody of Rock Island officials from Peoria County; that the 120-day period commenced to run from such date; and that defendant's trial on June 13, 1967, was therefore within the statutory period.

As previously noted, defendant was not arrested by the Rock Island police on January 14 for any particular charge, and when he was turned over to the Peoria authorities on January 15 no formal charges had been made against him in Rock Island county. In particular, he had not not been served with a complaint or warrant in respect to the crime of forgery here involved. It is true that the Rock Island police placed a "hold" or detainer request with the Peoria sheriff, but so far as the record shows this was an oral request which was never acknowledged. What is more, it cannot be said that the request related to the forgery involved in the instant case, inasmuch as he was not indicted for such crime until a month later. Under these circumstances, we believe it emerges clearly that from January 15 to February 17 (the date of the forgery indictment), at least, defendant was in custody for the unrelated crime of armed robbery for which he was being held in Peoria county. Had defendant been confined in the Rock Island county jail when the forgery indictment was returned, we would be compelled under Jones to hold that the statutory period started to run on such date. But since defendant was then in custody in Peoria County for the armed robbery charge, we believe the situation requires us to hold that the statutory period cannot be considered to have started to run until one of two later dates, viz., either March 27, the date upon which a copy of the Rock Island warrant was delivered to the Peoria sheriff, or April 19, the date defendant was returned to Rock Island and confined because of the forgery charge here involved.

Adoption of either of these alternative dates would place defendant's trial within the statutory period, but in our opinion a proper construction of section 103-5 (a) causes April 19 to be the controlling date. Where, as here, a defendant is in custody awaiting trial in one county and there is a charge pending against him in another county, we believe he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is then either returned to, or held in custody for, the second county. Any other construction would embarrass and harass the effective administration of criminal justice and would tend to favor an accused who is in custody of one county for a crime, but has formal charges pending against him, for which hold or detainer orders have been placed in several counties. Such an absurd result could not have been intended by the legislature when section 103-5(a) was enacted. Further, it would seem that if one county is to be allowed 120 days in which to prosecute an accused who is in custody for an alleged ...

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