APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant was charged with attempted armed robbery and attempted murder. After the charge of armed robbery was dismissed, the jury returned a verdict of guilty of attempted murder, and defendant was sentenced to a term of not less than eight years nor more than twenty years in the Illinois State Penitentiary System. On this appeal defendant makes four assignments of error.
On the night of August 26, 1971, two male Negroes entered a tavern in East St. Louis, Illinois. There were five people in the tavern, two of whom testified that while one man remained near the door, the defendant held a pistol on the owner-bartender but did not ask for money. The owner had alerted his sister and a co-manager of the tavern, both of whom were in residence adjoining and connected with the tavern. The co-manager, Allison Korkegian, entered the tavern through a passageway between the two buildings, carrying a shotgun. Three witnesses testified that the defendant fired two shots at her and she fired three shots in return, and the two men ran out of the building.
• 1 Defendant first contends that his conviction is invalid because he was not given a prompt preliminary hearing to establish probable cause. Despite the fact that this objection was not raised in the trial court, we will consider this argument because if defendant's contention is correct, this is plain error affecting substantial rights which we may review under Supreme Court Rule 615(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).) The record shows that defendant was arrested without a warrant on September 13, 1971, and incarcerated in the St. Clair County Jail. No preliminary hearing was held, and defendant was not indicted until November 17, 1971, 65 days after his arrest.
• 2 The second paragraph of article I, section 7 of the Illinois Constitution of 1970 provides:
"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 commentary to section 7 (Helman and Whalen, Constitutional Commentary, S.H.A. Const. of 1970, art. I, sec. 7, pp. 372-373) states in part:
"The second paragraph of Section 7 guarantees persons the right to a prompt preliminary hearing to establish probable cause for a crime punishable by death or by imprisonment in the penitentiary unless the initial charge has been brought by a grand jury indictment. This right is new in the 1970 Constitution. According to the Bill of Rights Committee Report, which proposed the language adopted in substantial part by the Convention, the provision seeks `to assure that no person will be held to answer for serious crimes without prompt conformity with these important rights, unless they are understandingly waived'. * * * The right guarantees that unless an initial charge is brought by grand jury indictment there will be a prompt judicial determination of the issue of probable cause.
In cases where the prosecutor obtains a grand jury indictment prior to the defendant being taken into custody, there is no constitutional requirement for a preliminary hearing because the issue of probable cause will have been determined by the grand jury in deciding to indict. These cases are probably the exception. Usually, the `initial charge' is made by an arresting officer rather than a grand jury. In such cases the person would be entitled to a `prompt preliminary hearing' unless it is understandingly waived."
Footnote 1 to the Bill of Rights Committee Report (7 Record of Proceedings, Sixth Illinois Constitutional Convention, Bill of Rights Committee Report, p. 2600) observes:
"This change makes it clear that a person must either be charged initially by grand jury indictment or given a prompt preliminary hearing before being held to answer for a crime punishable by death or by imprisonment in the penitentiary."
"The constitutional reference to a right to a preliminary hearing is new. As we read the provision before us, it appears to be designed to insure that the existence of probable cause will be determined promptly either by a grand jury or by a judge."
• 3 Here the "initial charge" was brought by the arresting officer, defendant was not given a preliminary hearing, and even the indictment was not "prompt", as defendant was not indicted until 65 days after his arrest. We hold that this violated the ...