APPEAL from the Circuit Court of Fayette County; the Hon.
WILLIAM A. GINOS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The defendant, David Sanders, was tried and convicted by a jury of the offense of escape. On appeal he raises issues which make it necessary to review in some detail the course of the proceedings.
On June 20, 1974, a complaint was filed alleging that the defendant had escaped from the Vandalia Correctional Center on June 14, 1974. At a hearing held on June 24, 1974, the defendant was appointed counsel, although counsel did not appear at that same hearing, and the defendant was given a copy of the complaint. On September 27, 1974, a three-count bill of indictment was returned by a grand jury. Each count alleged a violation of section 3-6-4 of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, § 1003-6-4(a)), charging the defendant with the same escape, but alleging that escape in a slightly different fashion in each count.
On October 4, 1974, defendant appeared for arraignment, accompanied by his attorney, the public defender, and entered a plea of not guilty. The court concluded the hearing by announcing that the cause would be set for a jury trial on October 9, 1974.
On that date, after the impaneling of a jury, but prior to the reception of any evidence, the trial court heard certain defense motions in chambers. Counsel moved to dismiss the case on the ground that his client had not been granted a prompt preliminary hearing and further asserted that he had never received a copy of the indictment. The motion was denied. Defense counsel then asked to see the witnesses listed on the indictment and objected to any witness being allowed to testify whose name was not endorsed on the indictment. The State's Attorney indicated that there were no witnesses listed on the indictment but that subpoenas for the two witnesses he intended to call had been in the file for some time. Defendant's motion to exclude witnesses was also denied.
The trial was then resumed. Testifying on behalf of the State, Darrold Rhodes, the Supervisor of Records for Vandalia Correctional Center, indicated that the defendant was received at Vandalia January 10, 1974. He stated that the records showed that the defendant left the facility June 14, 1974, and that there was no indication that the defendant had received permission to leave.
Leo Meyer, Superintendent of the Vandalia Correctional Center, testified that he had received notice on June 14, 1974, that the defendant had left the facility. He indicated that the defendant had been playing at baseball practice and that he (the Superintendent) had received word about 5 p.m. that the defendant was gone from the center. Superintendent Meyer further testified that the defendant had no authority to leave. The Superintendent and another prison official left for Chicago on Route 57 to search for defendant. On the Dan Ryan Expressway at 127th Street in Chicago they observed the car they were looking for. They saw the defendant a little after 12 midnight in the company of police officers and took him into custody at that time.
J. Patton Dellow testified for the State that he was a correctional counselor for the Vandalia Correctional Center and that he knew the defendant although he was not in his case load. Dellow received notice that the defendant was gone. Dellow was then briefed and left with the Superintendent for Chicago. They took the defendant into custody after they saw him coming out of an alley in the company of police officers around 12:05 a.m. June 15, 1974.
At the close of the State's case, the documents relating to the defendant's armed robbery conviction in Cook County were admitted into evidence. The jury returned a verdict of guilty and the defendant was sentenced to serve one to five years in the penitentiary, to run consecutively to the sentence he was serving at the time of his escape.
The defendant first contends that the denial of his constitutional right to a preliminary hearing warrants an outright reversal of his conviction. Ill. Const. 1970, art. I, § 7 states, in pertinent part:
"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."
There is no question that a delay of four months from the defendant's arrest to his trial without a preliminary hearing, even though there was a grand jury indictment in the interim, violated a constitutionally given right. However, we are of the opinion that the Illinois Supreme Court has ruled out the possibility of a reversal as a remedy for violation of the right to a preliminary hearing in People v. Hendrix, 54 Ill.2d 165, 295 N.E.2d 724, and People v. Howell, 60 Ill.2d 117, 324 N.E.2d 403. In Hendrix the court stated, "The second paragraph of section 7 does not provide a grant of immunity from prosecution as a sanction for its violation." (People v. Hendrix, 54 Ill.2d 165, 169, 295 N.E.2d 724, 727.) This position was reiterated in Howell. (People v. Howell, 60 Ill.2d 117, 121, 324 N.E.2d 403, 404. See People v. Price, 32 Ill. App.3d 610, 336 N.E.2d 56 (5th Dist.).) In addition, the United States Supreme Court has held that "a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause." Gerstein v. Pugh, 420 U.S. 103, 119, 43 L.Ed.2d 54, 68, 95 S.Ct. 854, 866 (1975).
• 1, 2 The most important distinction to be made in the instant case is, however, that a determination of probable cause was made when the grand jury returned an indictment. In a special concurring opinion in the Hendrix case this constitutional provision was interpreted to require simply a prompt determination of probable cause, whether by means of a preliminary hearing or grand jury consideration. In Howell the court adopted the premise of the concurring opinion and held that article I, section 7 required only that a prompt determination of probable cause be made either by the grand jury or by means of a preliminary hearing. This rule was followed by this court in People v. Moore, 28 Ill. App.3d 1085, 329 N.E.2d 893.
The defendant's second contention is that he was prejudiced by the court's denial of his motion to exclude the testimony of witnesses whose names were not listed on the indictment. He argues that the State's failure to furnish him with a copy of the indictment not only prevented him from learning the names of the State's witnesses but precluded him from learning the exact nature of the charge as well. After carefully comparing the language of the indictment and that of the complaint, a copy of which the defendant did receive, we are unable to say that any prejudice resulted. The variation in language was immaterial. The fact that the complaint was originally given to the defendant in the absence of counsel is likewise ...