APPEAL from the Circuit Court of Madison County; the Hon. W.L.
BEATTY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
An indictment which charged the defendant, Willie E. Hendrix, with theft of an automobile valued at more than $150 was dismissed by the circuit court of Madison County on the ground that the defendant had been deprived of his right to a prompt preliminary hearing under section 7 of article I of the constitution of 1970. The State has appealed, and because the trial court also held invalid a section of the Code of Criminal Procedure, the appeal was properly taken directly to this court. Ill. Rev. Stat. 1971, ch. 110A, par. 603.
Section 7 of article I provides:
"No person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine or by imprisonment other than in the penitentiary, in cases of impeachment, and in cases arising in the militia when in actual service in time of war or public danger. The General Assembly by law may abolish the grand jury or further limit its use.
No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
The official explanation of this section stated:
"This changes Article II Section 8 of the 1870 Constitution. It continues the right to a grand jury indictment but authorizes the General Assembly to limit as well as abolish the use of the grand jury. It also grants the right to a preliminary hearing to anyone accused of a felony who was not originally charged by a grand jury."
The indictment states the year, make, model and engine number of the stolen car, gives the name of the owner, and charges that the car was stolen by the present defendant and a co-defendant on or about August 6, 1971. It appears to be agreed that a complaint of some kind was made on August 6, or 7, 1971, which charged the defendants with theft of the same car that is described in the indictment. That complaint, however, is not in the record. The defendant was apparently brought before the circuit court of Madison County on August 18, 1971, at which time it was ordered that a preliminary hearing be held, although no specific date was set for the hearing. On August 19, 1971, the grand jury returned an indictment which charged the defendant with the theft of the same automobile described in the complaint.
On August 24, 1971, a motion for discovery before trial was filed by the public defender on behalf of the defendant. On August 25 that motion was allowed in part and denied in part, and on that date the defendant was arraigned and entered a plea of not guilty. On August 30 the State filed its response to the motion for discovery. Among the witnesses listed in the response were two sergeants of police from the Jackson, Tennessee, police department. In answer to a question which called for all written or recorded statements made by the accused or his co-defendant, the response stated: "Both defendants admitted that they took the auto from Midtown Auto Sales, Alton, Illinois. Witnesses are unknown at this time as the admissions were made in Jackson, Tennessee." The response further stated: "At this time the People have no knowledge of the witnesses that were present at the scene of the defendant's arrest inasmuch as the arrest was made in Jackson, Tennessee."
On August 29, the defendant filed a motion to dismiss the indictment on the ground that he had been originally charged by a criminal complaint, rather than by indictment, and that no preliminary hearing had been held. When this motion came on for hearing on September 3, 1971, the prosecution offered to hold a preliminary hearing in order to cure any possible defect. In response the public defender stated: "Your Honor, in reply to that we believe the Constitution is specific in saying that a prompt preliminary hearing has to be given to establish probable cause prior to indictment, and the mere showing that the State would give a preliminary hearing after already violating the Constitution by indicting the man may not cure the defect."
The trial judge then granted the defendant's motion to dismiss stating that "the State's offer at this time to hold a preliminary hearing does not cure the defect," and that the defendant had not waived the right by his failure to demand a hearing prior to August 19. On September 13, 1971, the court amended its order to include a declaration that that portion of section 111-2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111-2(a)) which provides: "If the defendant is charged with the commission of a felony * * * a preliminary hearing * * * shall be conducted * * * unless a Bill of Indictment upon the same felony charge is returned in open court prior to such hearing * * *" has been rendered unconstitutional by section 7 of article I of the Illinois constitution of 1970.
Just when the defendant was taken into custody by Illinois authorities, and just when he was brought back to Illinois does not appear. The prosecution's brief states: "The defendant Willie Hendrix was arrested on August 7, 1971 in Jackson, Tennessee on a charge of larceny of auto accessories. At the time of his arrest, defendant was driving an automobile which had been stolen on August 6, 1971, from an auto lot in Alton, Illinois. An Illinois warrant against the defendant was issued on August 7, 1971. Following a decision not to prosecute by the Tennessee authorities and a waiver of extradition by the defendant, Hendrix was returned to Illinois." In his brief in this court the defendant states that "he was arrested on August 16, 1971 and was brought for his first appearance on August 18, 1971 before an associate judge of the Madison County Circuit Court." The trial judge referred to the 18th of August as "the day after the defendant was arrested and apparently the same day on which he was indicted."
While section 7 of article I of the constitution provides that the General Assembly "may abolish the grand jury, or further limit its use," the General Assembly has not done either. The Code of Criminal Procedure still provides: "All prosecutions of felonies shall be by indictment unless waived understandingly by the accused in open court, and unless the State expressly concurs in such waiver in open court." (Ill. Rev. Stat. 1971, ch. 38, par. Page 169 Ill. 2.) The offense involved in this case is a felony (Ill. Rev. Stat. 1971, ch. 38, par. 16-1), and there has been no waiver of indictment. If the defendant was to be prosecuted for the offense, he had to be indicted. Without an indictment he could never have been "held to answer," or brought to trial, and the assertion of the public defender, acquiesced in by the trial judge, that the State had violated the constitution by indicting the defendant, is patently unsound.
As has been noted, the record in this case does not contain the document which is said to constitute the "initial charge" within the meaning of section 7 of article I. We do not know the date when the defendant was returned to this State or when he came into the custody of its law-enforcement officers. What we do know is that the defendant waived an extradition hearing in Tennessee, that he was apparently promptly indicted upon his return to Illinois, and that he then rejected a proffered preliminary hearing ...