APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, James Hawkins, after trial without a jury, was convicted of two offenses of indecent liberties with a child. (Ill. Rev. Stat. 1969, ch. 38, par. 11-4.) He was sentenced to two concurrent terms of five to ten years in the State penitentiary. Upon appeal defendant raises several contentions, including one that under the statute of limitations in section 3-5 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3-5), the time within which to commence prosecution of the offenses had expired. We agree with the contention as to limitation, and reverse. Therefore, only those facts relevant to such issue need be presented.
On February 24, 1972, the Cook County grand jury returned indictment 72-377 with 12 counts and Indictment 72-378 with 9 counts against defendant. In the aggregate, he was charged with 7 counts of indecent liberties with a child, 7 counts of contributing to the sexual delinquency of a child, and 7 counts of deviate sexual assault. Before trial, defendant filed separate motions to quash and to dismiss the indictments, asserting in each that his prosecution on the offenses charged was barred by the statute of limitations. The motions were denied. At the conclusion of trial, defendant was found guilty only as to counts 1 and 3 of Indictment 72-377. These counts are respectively set forth in pertinent part as follows:
"The Grand Jurors * * * present that on or about December 14th, 1968 at and within said County James Hawkins, a person of the age of seventeen years and upwards committed the offense of indecent liberties with a child in that he, performed an act of deviate sexual conduct, to wit: oral copulation, upon one John Johnson, a child under the age of sixteen years, in violation of Chapter 38, Section 11-4, of the Illinois Revised Statutes 1969 * * *.
The Grand Jurors * * * present that on or about December 14th, 1968 at and within said County James Hawkins, a person of the age of seventeen years and upwards committed the offense of indecent liberties with a child in that he, performed an act of deviate sexual conduct, to wit: oral copulation, upon one David Johnson, a child under the age of sixteen years, in violation of Chapter 38, Section 11-4, of the Illinois Revised Statutes 1969 * * *."
After trial, defendant filed a motion in arrest of judgment which reasserted that the statute of limitations had expired as to the offenses of which he had been found guilty. This motion was also denied by the trial court.
Defendant's pretrial pleadings indicate that he was initially taken into custody in the State of Alabama on January 23, 1970, and further, that a 1970 indictment pending against him in Illinois was dismissed in March of 1972. The statute of limitations as set forth in section 3-5 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3-5) provides:
"(a) A prosecution for murder, manslaughter, treason, arson, or forgery may be commenced at any time.
(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor."
However, certain periods are excluded from the time within which a prosecution must be commenced. Under section 3-7 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3-7) it is provided that the general limitation period shall not include any period in which
"(a) The defendant is not usually and publicly resident within this State; or
(c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commences the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal."
The allegation that the criminal charge is brought within the statute of limitations is a material element of any indictment and one which must always be pleaded and proved. (People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197.) An indictment which shows on its face that the offense charged is barred by the statute of limitations is wholly insufficient and subject to dismissal. People v. Hill (1966), 68 Ill. App.2d 369, 216 N.E.2d 212.
• 1 In the instant case, defendant was charged and convicted on two counts of indecent liberties with a child, a felony offense. His prosecution on those charges was subject to the 3-year limitation period provided in section 3-5(b) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3-5(b)). Indictment 72-377, which included those charges as counts 1 and 3, was returned by the grand jury on February 24, 1972. The counts merely alleged that defendant committed the offenses of indecent liberties with a child, one John Johnson (in count 1), and one David Johnson (count 3) on December 14, 1968. In neither court are any facts alleged wherein, or is it stated that, the statute of limitations was tolled in the interval between the commission of the offenses and the return of the indictment. As each count on its face sets forth the alleged offense as being committed on a date beyond ...