APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Cook County. The State brings this appeal under Illinois Supreme Court Rule 604(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)).
The sole issue presented for review is whether or not the trial court improperly dismissed the indictment against the defendant, Fenix Shields.
The defendant was indicted by the Cook County Grand Jury for the offenses of aggravated battery and attempt murder. On December 2, 1976, the fifth time the case was up for trial, the trial court granted a motion to dismiss the indictment, made by the defense attorney, after a pretrial conference with the defendant and the alleged victim, the defendant's brother-in-law. In granting the motion to dismiss, the trial court noted:
"The Court: There was a conference; and in the conference, the parties themselves agreed as to what the matter should how the matter should be disposed of, because they wanted to save a family relationship between a brother-in-law and his wife and sister and the whole family.
And if the State had one ounce of compassion in their system, they would proceed to comply with the court's instructions instead of wasting the court's time on an absolutely stupid matter."
1 The State's Attorney contends this dismissal is in violation of (Ill. Rev. Stat. 1975, ch. 38, par. 114-1), which section enumerates the grounds for dismissing an indictment prior to trial. Although the prosecution has cited the case of People v. Lawson (1977), 67 Ill.2d 449, it has misconstrued the principle of law enunciated by our supreme court. As the court said in Lawson (67 Ill.2d 449, 455):
"However, we believe that on the basis of the reasoning of our past decisions and that of the appellate courts> and on the basis of the reasoning of the United States Supreme Court, we must conclude that a trial court does have an inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process even though that is not a stated ground in section 114-1."
2 In the instant case the defendant demanded trial and the State was not ready to proceed, because the complaining witness had decided not to testify for the State against his own brother-in-law. The defense had answered ready for trial and the State by its own admission did not have any other witnesses prepared to testify against the defendant. The only eyewitness was the complainant; the police and medical personnel arriving on the scene after the incident. For the trial court to continue the case where the complaining witness was unwilling to testify would be illogical. There is no indication in the record the State would be able to proceed at a future date, so a repeated continuance of the case would deny the defendant the right to a prompt trial. This is a denial of due process. The trial court was correct in dismissing the indictment against the defendant and for the State to attempt to continue the hearing to another date appears to be an attempt to coerce the complaining witness into changing his mind and testifying against the defendant. We think it is imperative the inherent power and authority of the trial court be preserved.
Accordingly, for the reasons contained herein, the judgment of the circuit court of Cook County dismissing the indictment is affirmed.