APPEAL from the Circuit Court of Perry County; the Hon. ROBERT
BASTIEN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction of the crime of burglary after a trial by jury. He was sentenced to a term of not less than three nor more than five years in the penitentiary.
Initial consideration must be given to defendant's argument that the trial court committed error in overruling his motion to quash the indictment. His motion was founded upon the premise that fatal prejudice resulted when the statute relating to the selection of a grand jury was violated by the State's Attorney being present at and participating in the selection of the grand jurors who returned the indictment against defendant. The relevant statute is ch. 78, sec. 9, Ill. Rev. Stat., which governs the drawing of a grand jury in counties not subject to the Jury Commissioners Act. (Ill. Rev. Stat., ch. 78, secs. 24-35.) Amendments to this statute enacted by the legislature in 1969 made substantial changes in the manner of selecting a grand jury by requiring the names of the grand jurors to be drawn from the jury list. Prior to the amendments the persons constituting a grand jury were designated by the county board. The defendant offered as his witness the circuit clerk. The People offered the testimony of the three County Commissioners, the State's Attorney and his secretary. With some minor variation which we deem unimportant the testimony established that the selection of the grand jurors in question was the first time a grand jury had been chosen under the amendatory acts of 1969. The new procedure required the County Board of Commissioners to draw the names of the grand jurors from the jury list. The State's Attorney was in attendance at the regular meeting of the County Board in May 1970 to have them draw a grand jury and to advise them regarding the new procedure to be followed. Prior to the meeting the State's Attorney had prepared a resolution for selection of the grand jury but the names of the jurors were omitted from the resolution. Near the conclusion of other business of the board the State's Attorney advised the board that they had to select a grand jury from the petit jury box and read them section 2 from the Jurors Act relating to the qualifications of grand jurors. The county clerk was instructed to get the jury box, which was done. The jury box contained 1100 to 1200 names. The chairman of the County Board directed the State's Attorney to go ahead and start drawing the names while other business was being concluded. The State's Attorney and one of the Commissioners then proceeded to draw names from the box, checking them as they were drawn to determine whether their names were already on a previously selected petit jury list. Forty-three names were drawn from the box by the State's Attorney and the Commissioner. Afterward the State's Attorney read each name to the board to determine whether they had the requisite qualifications of grand jurors. Several were rejected because someone thought they were dead, infirm or had a previous criminal record or some other disability that would prevent their service. The rejected names were returned to the box and additional names drawn to make up a total of 43. All the tickets containing the names were then turned over and the members of the County Board drew 23 names which became the regular panel and the remaining 20 names became the supplemental panel. At the close of the meeting the State's Attorney took the two piles of names and put them in separate envelopes, identified as regular panel and supplemental panel, and gave them to his secretary to type into the resolution which had been previously prepared. The circuit clerk's testimony was at some variance with this. He stated that the State's Attorney picked up all 43 names and said he would take the first 23 as the regular panel and the remainder as the supplemental panel. The clerk testified that there was an excess of names drawn before the Commissioners made their selection and that the excessive names were returned to the box after the drawing. The State's Attorney testified that he never at any time told the board who to select as grand jurors nor did he even suggest any names to them or give them a prepared list of grand jurors. This testimony was corroborated by the Commissioners.
In rendering its decision denying defendant's motion to quash the indictment the trial court commented as follows:
"The Court is also aware of the fact that the Statutes are written to be followed. Various amendments are made from time to time to try to correct what deficiencies happened or what deficiencies were found in the Statutes. And the Court is also aware of the fact that these defendants or whatever defendants have been indicted by the Grand Jury are going to have, what the Court considers a fair trial. They are going to be confronted by witnesses. They are going to be represented by counsel. The Grand Jury is a very important process in our government. Although, in this particular instance where everything was laid on the table, everybody was present, the Court doesn't believe there was any ulterior motive in disregarding some of the substantial parts of the Statutes which he did disregard. And that it won't happen in the future. I believe if I could see a situation where the State's Attorney might dismiss the Board and say I'll take care of this later on and let you know or something like that where there was some kind of subterfuge or concealment carried out. But as I said, I believe everything was laid on the table and in the Court's opinion there was no effort to put particular persons on a supplemental or on a regular panel or Grand Jury list. Consequently, despite the well presented arguments of counsel for the Defendant, the Court is going to overrule your Motion."
Defendant places principal reliance upon the cases of People v. Mack (1937), 367 Ill. 481, 11 N.E.2d 965, and People v. Lindquist (1937), 289 Ill. App. 250, 7 N.E.2d 166. In Mack the alleged impropriety in selection of a grand jury arose when the Cook County Sheriff, at the court's direction, selected eight persons from the body of the county to complete the regular panel of grand jurors, that number being absent on the day designated for the grand jury to sit. There was a conflict in the application of the statute regarding selection of grand jurors in counties having a population of more than 250,000. The general statute relating to selection of jurors was, by what the court termed an anomaly, made applicable to the criminal court of Cook County. It authorized the action of the sheriff in filling the panel. The "anomaly" was later removed by appropriate legislation. The Jury Commissioners Act (Smith-Hurd Ill. Stat., ch. 78, sec. 32) regulated procedure for selecting grand jurors in Cook County and by its terms additional names as needed were to be drawn by lot from the jury commissioners list. The court held that the general statute regarding the selection of grand jurors did not control over the Jury Commissioners Act and that therefore it was error to fill the incomplete panel by having the sheriff select eight persons from the body of the county. The court found that there was no substantial compliance with the statute relating to selection of grand jurors and held the indictment void, stating "The rule that mere irregularities in the selection of a jury will not constitute reversible error is applicable only where there has been an attempt to follow the law and there has been some irregularity in doing so." The Lindquist case was also a case arising in Cook County and involved a situation similar to that of the Mack case and the Appellate Court reached the same conclusion as the Supreme Court had in Mack.
The court in the Mack case took note of People v. Lieber, 357 Ill. 423, 192 N.E. 331, where it was shown that 60 names, rather than the required 23, were drawn from the grand jury list and they were summoned to court. Several of the panel of 60 failed to appear or were excused for reasons unknown, and the clerk then drew by lot from those remaining out of the 60 to make a panel of 23. The court found that the 23 who were finally selected and sworn as the grand jury who found the indictment against Lieber were drawn and certified by those legally constituted to draw and certify the panel or list of grand jurors and were otherwise qualified to serve as such. It was held that a substantial compliance with the law providing for the drawing and impaneling of a grand jury is all that is required unless the record shows improper influence, undue prejudice or other matters which might have caused a true bill to be improperly returned. The court then overruled some prior decisions to the contrary and declared the following rule: "In order to remove any further doubt on the subject, we now hold that the provisions of the Jurors act and Jury Commissioners act, in so far as they relate to the manner of selection of grand jurors, are directory and not mandatory, unless the substantial rights of the accused are injuriously affected by the methods pursued."
The Mack case, curiously, omitted any reference to the case of People v. Bain, 358 Ill. 177, 193 N.E. 137, where the court observed that under the factual situation present "The procedure was at least novel, even though without any semblance of complying with the requirements of the statute." (Emphasis supplied.) It was nevertheless held that under the authority of People v. Lieber, supra, they were required to hold the trial court did not err in refusing to quash the indictment.
People v. Herkless, 361 Ill. 32, 196 N.E. 829, followed Lieber and refused to avoid a grand jury that had been selected by a subcommittee of the Board of Supervisors rather than the full Board of Supervisors as required by the statute. We note that the facts there resemble those of the case under consideration. The most recent case on the subject to which our attention has been called is People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276, in which the court held that it was frivolous upon the part of the defendant to argue that the grand jury was illegal because the clerk of the Board of Jury Commissioners was not present at its selection. The Lieber rule was followed, the court saying: "In the absence of any showing of improper influence, undue prejudice or other matters which might have caused a true bill to be improperly returned, the trial court properly refused to quash the indictment on such ground."
Upon consideration of the above authorities it would seem that the Mack and Lieber cases are not necessarily aberrant but an exceptional instance of irreconcilable conflict between two separate and distinct statutes in effect at the same time. They accordingly have no application to the case under consideration.
Defendant's arguments and citations also omit any reference to and completely discount the provisions of section 114-1(4) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat., ch. 38, sec. 114-1(4).) It provides that the court may grant a motion to dismiss an indictment, information or complaint upon the grounds that "The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;." (Emphasis supplied.) We think this statute is controlling here and indicates the plain intention of the legislature to adopt the rule of the Lieber case.
Neither in his motion to quash the indictment, his evidence at the hearing thereon or in his brief here has defendant shown or attempted to show any prejudice which resulted from the proceedings at the drawing of the grand jury. In that connection it is worth while to note that the grand jury was selected and drawn over two weeks before the commission of the crime of which defendant stands accused.
The names of the grand jury in the case at hand were drawn by lot from the jury list which was prepared in accordance with the law. The drawing was in the presence of all the members of the County Board of Commissioners, the circuit clerk and the county clerk. The State's Attorney and one of the Commissioners drew the names from the jury box, testing them against the petit jury list which had been previously selected in order to avoid duplication. Thereafter, the full board participated in the rejection of names of persons who they knew to be deceased or under some other disability that would prevent their serving as grand jurors. The names were then turned face down on the table and the Commissioners proceeded to draw the names of the regular panel and the supplemental panel by lot. It is thus seen that there was an attempt made to follow the statute and that the proper authorities, the Board of Commissioners, did participate in the selection of the jury and did indeed make the final selection. The participation of the State's Attorney in the selection process was at the direction of the Chairman and in the presence of the full board. He certainly was properly present at the meeting in his capacity as legal advisor to the board. That it was his hand that withdrew the names from the box, without more, can scarcely be said to result in such prejudice to defendant that it would deprive him of fair treatment by the grand jury. We would also observe that the State's Attorney is no more an interested third party in criminal prosecutions than would be the sheriff, who, in instances where a special grand jury is ordered pursuant to Ill. Rev. Stat., ch. 78, sec. 19, personally selects and designates every member of the grand jury.
• 1, 2 The rule of the Leiber case and those that follow it is a just one for the obvious reason that the role of the grand jury in criminal cases is accusatorial only. As pointed out in the Lieber case, the grand jury is not a mandatory requirement under the Constitution of 1870 but could be abolished by the legislature at any time. That legislative power is continued in the 1970 Constitution under Article I, Section 7.
• 3, 4 In view of the precedents and the statute we think that the trial court was correct in denying defendant's motion to quash the indictment. We also agree with the trial court that the practice followed in this case, while not prejudicial to the defendant, is nonetheless improper and certainly not to be condoned. At the same time it is understandable that such an event could transpire in light of the confusion that attended the 1969 ...