APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the Circuit Court of Madison County dismissing an indictment returned against Dave Melson charging him with the unlawful delivery of a controlled substance, PCP. The trial court ruled that the grand jury could not have found probable cause if they had been properly instructed on the law. The flaw in the indictment, according to the trial court, was the lack of evidence before the grand jury tending to show knowledge on the part of the defendant as to the actual composition of the substance he sold to an agent of the Metropolitan Enforcement Group of Southwest Illinois (MEGSI).
The State contends that the trial court acted without authority in dismissing the indictment, because it is not open to challenge on the ground that it is not supported by adequate evidence.
On June 9, 1976, defendant sold seven tinfoil packets of a powdery substance that he represented to be "THC" to an agent of MEGSI. The agent had asked about some "THC" and defendant said that he had some. The substance was later analyzed by the Illinois Bureau of Identification as not "THC" but .3 gram of PCP, a controlled substance. "THC", a derivative of cannabis, is not a controlled substance.
Defendant claims that he had no knowledge of the actual composition of the powder he sold, and that all parties involved thought they were dealing with "THC", thus no evidence was presented on an essential element of the offense with which defendant is charged, that defendant "knowingly" delivered a controlled substance.
In its order the trial court used language from People v. Sears, 49 Ill.2d 14, 273 N.E.2d 280, as authority to hold that due process required a dismissal of the indictment since no evidence of "knowledge" was presented to the grand jury. Sears was cited for the proposition that the court has an inherent power of supervision over the grand jury. In Sears the trial court was petitioned to review testimony presented to a grand jury to determine if alleged wrongdoings by the prosecutor existed. Indictments had not yet been returned in the case. In our opinion, Sears stands for the proposition that a court may act prior to indictment to prevent injustice and abuse of process. In re Fried, 161 F.2d 453 (2d Cir. 1947), and Austin v. United States, 297 F.2d 356 (4th Cir. 1961), were cited by the trial court for the same proposition as Sears. In re Fried and Austin v. United States involved the trial court's suppression of documents or testimony from the grand jury on the grounds that the documents or testimony were taken from defendants in violation of their constitutional rights. The courts> of appeal held that the district courts> had inherent supervisory powers over the grand jury and they may act prior to indictment to prevent injustice and abuse of process.
While it is our opinion that Sears, In re Fried, and Austin accurately state the law as applied to their respective factual situations, they are not authority for dismissing this indictment.
The situation facing the Madison County Circuit Court was not a matter of improper testimony before the grand jury over which the trial court would have had the power prior to indictment to supervise, but rather an after-the-fact challenge to the sufficiency of the evidence on which the grand jury could indict.
The grounds for dismissing an indictment prior to trial are set out in section 114-1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-1(a)(1-10)). Sufficiency of evidence presented to the grand jury is not listed among the grounds for dismissal. This court in People v. McAleer, 34 Ill. App.3d 821, 341 N.E.2d 72, held that trial courts> have no power to dismiss an indictment except upon grounds provided by statute. This is the rule of law in all the appellate districts except the Fourth. People v. Thomas, 24 Ill. App.3d 907, 322 N.E.2d 97 (3d Dist. 1975); People v. Hoover, 12 Ill. App.3d 25, 297 N.E.2d 400 (2d Dist. 1973); People v. Barksdale, 110 Ill. App.2d 163, 249 N.E.2d 165 (1st Dist. 1969).
The Fourth District in People v. Lawson, 38 Ill. App.3d 239, 347 N.E.2d 430, and the First District in People v. Silverstein, 19 Ill. App.3d 826, 313 N.E.2d 309, recognized the "inherent authority" in the trial court to insure that a defendant receives a fair trial and if necessary, to dismiss the indictment. The authority relied on by the court in People v. Silverstein is People v. Endress, 106 Ill. App.2d 217, 245 N.E.2d 26 (4th Dist. 1969). In Endress the State appealed an order of the trial court suppressing certain physical evidence related to an armed robbery charge against two defendants and a court order holding the State's Attorney in contempt for refusing the order to produce the evidence for inspection by defendants. The court upheld the orders and stated:
"In imposing sanctions the trial court is exercising its inherent authority to insure the defendants a fair trial." 106 Ill. App.2d 217, 223.
Endress did not involve the dismissal of an indictment and in our opinion it was not sufficient authority on which to base the rule of law stated in Silverstein.
There is, however, a non-statutory ground on which a dismissal can be based. The rule is stated in People v. Jones, 19 Ill.2d 37, 166 N.E.2d 1, as follows:
"* * * [A]n indictment will not be quashed unless all the witnesses were incompetent or all the testimony upon which it was found was incompetent. [Citations.]" (19 Ill.2d 37, 41.)
The court went on to say that if a witness was disqualified by law, then his testimony was incompetent, otherwise if a witness was competent, his testimony was competent. The court held that the trial court should not inquire into the adequacy ...