Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 3, 1977.
This is a direct appeal (58 Ill.2d R. 603) from a judgment of the circuit court of Cook County which dismissed a count charging attempted murder in a criminal information of four counts filed against the defendant, Gill Redmond, and which held section 111-2(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-2(e)) to be unconstitutional.
On April 19, 1976, Redmond was charged in a complaint with the offense of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4). A preliminary hearing was held on April 28, 1976, at which the complainant, Lesley Illidge, testified. Illidge stated that he had approached the defendant and several other men on the evening of April 18 and inquired if they knew where he could obtain drugs. Told to follow them, he entered an apartment building, and as they were leaving the building's elevator the defendant attempted to draw a revolver from his pocket. Illidge said that, as he reached to grasp the defendant's arm, the gun went off and a bullet struck him in the leg. On cross-examination Illidge admitted he had known the defendant for two years and had no previous difficulties with him. No other witnesses appeared, and a finding of probable cause was entered by the court.
On May 6, 1976, a four-count information was filed by the State's Attorney charging the defendant with one count of attempted murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4 and 9-1) and three counts of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4). This was done under section 111-2(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-2(e)), which provides that, following a finding of probable cause at a preliminary hearing, the prosecution may proceed by information for all offenses arising from the same transaction or conduct of the defendant even though the complaint on which the preliminary hearing was held charged only one or some of the offenses set out in the information.
On December 6, 1976, the defendant moved to quash count I of the information, which charged attempted murder, on the ground that a preliminary hearing had not been held on that charge at which a judge had determined the existence of probable cause, which he said was required by article I, section 7, of the Constitution of Illinois of 1970. The defendant also argued that section 111-2(e) violated the fourth and fourteenth amendments of the Constitution of the United States by permitting a prosecutor to bring a criminal charge against an accused without providing for a preliminary hearing and a judicial determination of probable cause. The circuit court allowed the defendant's motion, holding section 111-2(e) to be unconstitutional.
Article I, section 7, of our constitution declares:
"No person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine or by imprisonment other than in the penitentiary, in cases of impeachment, and in cases arising in the militia when in actual service in time of war or public danger. The General Assembly by law may abolish the grand jury or further limit its use.
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." Ill. Const. 1970, art. I, sec. 7.
In 1975 the General Assembly, acting under the power granted by article I, section 7, to "abolish the grand jury or further limit its use," amended section 111-2 of the Code of Criminal Procedure to provide in part:
"(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109-3 and at that hearing probable cause to believe the defendant committed an offense was found.
(e) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct." Ill. Rev. Stat. 1975, ch. 38, par. 111-2.
Contrary to the defendant's claim, we consider that a prosecution by information under section 111-2(e) does not violate the due process clause of the fourteenth amendment. The provision of the fifth amendment requiring indictment by a grand jury is not applicable to State criminal proceedings. (Hurtado v. California, 110 U.S. 516, 28 L.Ed. 232, 4 S.Ct. 111 & 292; Morford v. Hocker (9th Cir. 1968), 394 F.2d 169.) Too, a State may, consistent with due process, dispense with the preliminary hearing procedure and authorize the prosecutor to initiate the criminal proceeding directly. Lem Woon v. Oregon, 229 U.S. 586, 57 L.Ed. 1340, 33 S.Ct. 783.
The defendant repeats here his contention that section 111-2(e) violates an accused's right to a prompt preliminary hearing to establish probable cause as declared in article I, section 7, of our constitution, because, he says, the constitutional provision requires a probable cause determination for each separate charge which might ...