APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The four defendants herein, all deputy sheriffs for the County of Winnebago, were jointly indicted for misconduct in that they knowingly exerted unauthorized control over the money of one William W. McClain. In a bench trial they were found guilty and each placed on probation for a period of three years. They appeal.
Defendants, in actuality, have raised the following two contentions as to why the conviction should be reversed, to-wit, first, that the trial court erred in denying the motion to dismiss the indictment as the statute of limitations had run and that the trial court erred in denying the motion for a directed verdict because the State had failed to prove the extended limitations allegations in the indictment; and, secondly, that the confession of each defendant was obtained under coercive circumstances in that the Miranda warnings were not given to one defendant and were incompletely stated to the other three defendants as they were not advised of their right to appointive counsel in the event of their indigency.
The facts of this case are as follows. On April 3, 1970, one William McClain, in an automobile chase, was apprehended by Deputy Miller and Deputy Peterson. At the trial McClain testified that at the time of his apprehension he had $482 on his person which was taken from him when he was booked in the sheriff's department. He further testified that an envelope containing $390 had been placed above the sun visor on the driver's side of the motor vehicle in which he was riding. He further testified that the $390 was never returned to him. The defendants were indicted for official misconduct on July 10, 1974, for the taking of the $390. The indictment alleged the knowing exertion of unauthorized control over the money on the 3rd of April, 1970. The indictment further stated the prosecution for the offense, based upon the misconduct of the four deputy sheriffs, was commenced on June 25, 1974, within one year after the discovery of the offense by a person having a legal duty to report such offense and that the State's Attorney became aware of the offense in question on April 11, 1974.
On April 11, 1974, it appears that the Attorney General of Illinois was cooperating with the sheriff of Winnebago County in an internal investigation of the sheriff's office. On that date Deputy Holcomb advised the investigating officers in the internal investigation of the sheriff's office that he had become aware of the taking of the money on April 4, 1970, but that he didn't tell anyone about it. On that date four officers of the Winnebago County sheriff's office, to-wit, Brown, McMahon, Coots and England, interviewed the four defendants separately in the sheriff's office. All four defendants admitted that $390 had been found in the car in question and the money was divided among them. Deputy Miller received $120, Deputy Peterson $120, Sergeant Wenstrom $120 and Deputy Betts $20, although Deputy Betts stated that he received $10.
The confessions of Miller, Betts and Peterson were reduced to writing and signed by them. Wenstrom's confession was reduced to writing but he refused to sign the same. The four officers in question were apparently relieved of duty and were not arrested until the time of their indictment some two months later.
On December 19, 1974, a hearing was had before Judge William R. Nash for the suppression of the confessions of the defendants. The motions were denied. Subsequently, the defendants were tried before Judge Nash in a bench trial and were found guilty and placed on probation for a period of three years.
At the trial Holcomb testified substantially as he had at the motion to suppress, although counsel for the defendants offered to stipulate his testimony at the trial would be the same as introduced in the motion to suppress. Holcomb testified he had been at the scene of the arrest of McClain and that on the next day he discussed the discrepancy in the amount of money recovered with Deputy Betts while they were on duty. Holcomb was advised by Betts that he couldn't tell him about it but that Betts had received $10-20 and that deputies Miller, Peterson and Wenstrom had split up the money. On the same day, about 8 in the evening, Holcomb went to the Svithoid Park in Rockford, Illinois, with Betts in the squadcar. Deputies Miller and Peterson were also at Svithoid Park. A discussion was had about the money. One of the deputies asked Holcomb if he were going to tell on them and Peterson stated, "You'd better not or we'll kill you." Betts then shot his gun off from behind Holcomb. Holcomb testified that either Miller or Peterson said that they thought it best not to tell Wenstrom that Holcomb was aware of the situation. Again counsel for the defense offered to stipulate that the testimony of Officer Coots would be the same as at the motion to suppress, however, the counsel for the State had Officer Coots testify. Officer Coots then testified as to the statements made by the four deputies in his presence. Officer Brown was then called as a witness to the confessions and it was stipulated by counsel for the defendants and the State that the testimony of Officer Brown would be the same as it was at the motion to suppress.
We turn to the first contention of the defendants that the court erred in denying a motion to dismiss the indictment because the statute of limitations had run. The offense herein occurred on April 3, 1970. Under the provisions of the then official misconduct statute this offense was a misdemeanor (Ill. Rev. Stat. 1969, ch. 38, par. 33-3). The prosecution was brought under the extended limitations section of the Criminal Code for acts of misconduct in office by a public employee. (Ill. Rev. Stat. 1973, ch. 38, par. 3-6(b).) The statute of limitations for a misdemeanor is 18 months and may be extended for a three-year period. Section 3-6(b) further required, notwithstanding the extension of the statute of limitations for prosecution, the offense must be prosecuted within one year from the date of the discovery thereof. Pursuant to the extension statute, the indictment alleged that prosecution was commenced on "June 25, 1974 within one year after discovery of the offense by a person having a legal duty to report such offense, and in the absence of such discovery within one year after the proper prosecuting officer * * * became aware of the offense, which was not before April 11, 1974." The State's Attorney became aware of the offense in 1974 after Deputy Holcomb reported it during the internal investigation of the sheriff's office. Defendants contend that Deputy Holcomb was "a person having a legal duty to report such offense" under the provisions of section 3-6(b) of the Criminal Code and that the extended limitations period began to run on that date, to-wit, April 4, 1970, not in 1974 when the prosecutor was advised of the offense. In support of this contention the defendants have cited People v. McGreal (1971), 4 Ill. App.3d 312, 278 N.E.2d 504. In attempting to distinguish McGreal from the present case defendants contend that Deputy Holcomb was a subordinate who had been delegated the legal duty to report an offense of this type. In McGreal the court held that the assistant commissioner of the Building Department of the City of Chicago had not been delegated the legal duty to report offenses of misconduct and that, therefore, the extended period of the statute of limitations applied. The court in McGreal, in interpreting section 3-6(b) of the Criminal Code, stated that the legislature meant the person in charge, that is, the head of the department, division or governmental agency. The court held that if a subordinate of such a person, who in that case was the assistant commissioner of the Building Department, discovered misconduct in office so as to trigger the running of the one-year extended period, there must be evidence that the subordinate was delegated the duty to report the offense to the proper prosecuting authority. The question thus presented to us in this case is whether or not the duty to report an offense of misconduct was delegated to Deputy Holcomb.
The trial court, at the hearing on the motion to suppress the confessions, found that Deputy Holcomb had discovered the offense and had a duty to report it; however, the court stated:
"Every deputy sheriff has a duty to report all criminal offenses which come to his attention; the statute and the rules of the sheriff's department are clear in this regard. In this case, however, the deputy who discovered the offense was influenced by the defendants in such a way as to preclude them from taking advantage of his failure to report the offense for some four years thereafter.
The defendants cannot now be permitted to be the beneficiaries of their own misconduct in causing this deputy to breach his duty, particularly in view of the fact that one of the defendants was his immediate superior in the department, the person to whom he would have normally reported and in a position to exercise control over him.
To permit the triggering of the extended limitation period under these circumstances would be little different than to do so because each of the defendants, themselves, had the same duty to report the offense. The general assembly did not intend such a result in adopting this legislation."
The State argues that Deputy Holcomb was not "a person having a legal duty to report" under the provisions of section 3-6(b). In support of this argument the State contends that the legislature intended to limit the word "person" to those public officials charged with responsibilities for their subordinates and that it was not the duty of Deputy Holcomb to report the misconduct to the State's Attorney but that normal procedure dictated that the deputy report such an offense to his superior officer who, in this case, would have been Sergeant Wenstrom, one of the defendants who received the money. The State further contends that the extended statute of limitations did not begin to run until the offense was discovered by the Sheriff himself. Under the peculiar facts of this case it is inconceivable to us that the legislature ever intended, in enacting the pertinent legislation herein, that in a case of official misconduct as here, a discovery by a fellow deputy sheriff of an offense by another deputy would constitute "discovery of the offense by a person having a legal duty to report such offense." To hold that the four officers herein could not be prosecuted for taking the money because another officer discovered the same and therefore the extended period of limitations had run, would be a gross miscarriage of justice.
• 1, 2 It can thus be seen that the four defendants are relying upon the commission of a criminal offense on the part of Deputy Holcomb, to-wit, his failure to report the offense, as a basis for claiming that the prosecution was barred under both the original statute of limitations and the statute extending the same. Whether Deputy Holcomb failed to report the offense because of intimidation by the four officers, or because of friendship, it is obvious to this court that such a construction of the extended limitation period would be unconscionable. It is true, as defendants state in quoting from Taylor v. State (1931), 44 Ga. App. 64, 160 S.E. 667, cert. denied (1932), 175 Ga. 642, 165 S.E. 733, one must weigh the competing interests between preserving the statute of limitations and the right of the individual to have a fair trial. However, the statutes of limitations as to the time within which crimes must be prosecuted are creatures of the legislature. Adopting the argument of the defendants that it was the duty of Deputy Holcomb to report the offense, we would have the statute not being tolled based upon the commission of an offense by a fellow deputy. Section 31-5 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 31-5) placed Deputy Holcomb in the same category with the defendants. This statute is the old accessory-after-the-fact ...