Appeal from the Circuit Court of Iroquois County; the Hon.
VICTOR N. CARDOSI, Judge, presiding. Affirmed.
Rehearing denied April 9, 1969.
The defendant, Gale Nettles, was indicted for the crime of burglary in Iroquois County and was tried before a jury which returned a verdict of guilty. He was sentenced to the Illinois State Penitentiary for an indeterminate sentence of not less than five nor more than nine years. He has appealed from this judgment contending:
(1) That he was denied his constitutional and statutory right to a speedy trial;
(2) That his constitutional rights were violated when the trial court received, opened and recorded the sealed verdict of the jury at a time when neither the defendant nor his counsel were in court, and
(3) That the State's evidence consisting solely of testimony of accomplices failed to prove the defendant guilty beyond a reasonable doubt.
On November 25, 1966, the burglary involved in this case was committed in Iroquois County. On January 10, 1967, the defendant was arrested in Vermilion County for a different offense. He was held in Vermilion County jail under the charge in that county until January 30, 1967, when he was released for lack of evidence after a preliminary hearing. Fifteen minutes later, he was again arrested at a point some five blocks from the jail. He was returned to the Vermilion County jail and the next day, January 31, 1967, he was transferred to the Champaign County jail where he was charged with still another burglary which had been committed in that county. He remained in the Champaign County jail under that charge until April 29, 1967, when he was released on his own bond. Before he left the courtroom he was arrested on a warrant from Iroquois County charging the defendant with the burglary in that county of November 25, 1966, which was first above mentioned. He was returned to the Iroquois County jail where he was continuously incarcerated until his trial on July 24, 1967.
The Iroquois County officials learned of the defendant's involvement in the crime involved in this case from a statement given to them by an accomplice, Thomas, on February 20, 1967, and from a statement given to the Champaign County officials by another accomplice, Walker, on February 16, 1967. On March 16, 1967, an information was filed in Iroquois County charging the defendant with the burglary involved herein and a warrant for his arrest was issued on that date.
The defendant presents two different computations of time, either of which he contends, demonstrates that he was incarcerated more than 120 days before his trial in violation of chapter 38, section 103-5(a), Ill Rev Stats 1967 and section 9 of Article II of the Constitution of Illinois 1870.
The defendant first insists that since the Iroquois County authorities on February 16, 1967 had information implicating him in the crime for which he was subsequently tried, and since he was then in custody in Champaign County charged with a different offense, the statutory period of 120 days commenced to run on February 16, 1967. From that date until July 24, 1967, the day his trial commenced, 158 days elapsed.
[1-3] Both section 103-5 of chapter 38 and its statutory predecessors (Ill Rev Stats 1963, c 38, pars 633.1 and 748) implement the constitutional right to a speedy trial (art II, § 9, Ill Const 1870). People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242. Under both the present statute and its predecessors, it has been held essential to the starting of the statutory period, that a criminal charge be pending against the defendant. People v. Jones, 33 Ill.2d 357, 211 N.E.2d 261; People v. Arbuckle, 31 Ill.2d 163, 201 N.E.2d 102; People v. Gray, 83 Ill. App.2d 262, 227 N.E.2d 159; People v. Lowe, 61 Ill. App.2d 262, 210 N.E.2d 31. Obviously, unless a person is charged with a crime, there can be no prosecution, and it would seem to follow as a natural corollary that there would likewise exist no constitutional right to a speedy trial. This is not meant to imply that an arrest without a warrant before a complaint, information, or indictment has charged a defendant with a crime, will not set in motion the statutory period. However, in such cases, in order for such an arrest and incarceration to do so, the arrest must be in connection with the charge for which the defendant was subsequently prosecuted. People v. Jones, 33 Ill.2d 357, 211 N.E.2d 261. The right to a speedy trial means the right to have speedily heard the charge upon which the accused is detained. People v. Kidd, 357 Ill. 133, 191 N.E. 244.
In the Jones case, supra, our Supreme Court in construing our present statute's predecessor (Ill Rev Stats 1961, c 38, par 748) held that knowledge by the officials of the defendant's implication in the offense for which he was subsequently prosecuted was not sufficient to start the running of the statutory period even though the defendant was incarcerated on another unrelated charge at the time such knowledge was acquired. We see nothing in the language of section 103-5(a) to indicate that this section should be construed differently than the manner in which former section 748 was construed in People v. Jones, supra.
The defendant implies that there was an arbitrary delay on the part of the Iroquois County officials in taking any action on the present charge, and that such a delay amounted to an evasion of the 120-day rule such as was condemned in People v. Fosdick, 36 Ill.2d 524, 224 N.E.2d 242. No evidence in the record indicates that there was any ulterior motive on the part of the Iroquois County officials in failing to formally charge the defendant from February 16, 1967, when they allegedly first had knowledge of his implication in the crime until March 16, 1967, when an information was filed and a warrant issued. No proof was offered by the defendant which would indicate that the delay was an attempted evasion of the 120-day rule. People v. Lowe, 61 Ill. App.2d 262, 210 N.E.2d 31.
The second computation of time used by the defendant to demonstrate the violation of section 103-5 of the Criminal Code uses as the starting date March 16, 1967, the date upon which an information was filed charging the defendant with the burglary in question at which time a warrant issued thereon. From that date until the date of the trial on July 24, 1967, 130 days elapsed. The defendant did not urge this computation of time in the trial court. The defendant's only motion for discharge under section 103-5 of the Criminal Code was filed May 25, 1967, argued before the Court on May 29, 1967, and denied by the court on June 8, 1967. The computation of time set forth in that motion and argument involved the earlier dates of incarceration in Vermilion and Champaign counties discussed above. Since 120 days from the filing of the information and issuance of the warrant on March 16 had not elapsed at the time the motion was argued, naturally the computation of time now under consideration was not presented to the trial court in the motion which the trial court denied. Nor did the defendant ever request that he be discharged based on the passage of 130 days between the date of the issuance of the warrant and the date of ...