APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
After two separate presentations to the Cook County grand jury by Assistant Attorneys General of the State of Illinois, indictments were returned against defendants, Buffalo Confectionery Company, Peter Nichols, L & S Foods, Inc., and Lawrence Lieberman. The indictments charged each defendant with the offense of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)) in exerting unauthorized control over State use tax money. In addition, Lieberman was indicted for signing and filing fraudulent retailers' occupation tax returns in which gross receipts were understated, and L & S Foods, Inc., was indicted for filing fraudulent retailers' occupation tax returns. (Ill. Rev. Stat. 1973, ch. 120, par. 452.) Upon arraignment Nichols, a partner in Buffalo Confectionery Company, pleaded not guilty to the charges against him individually, and to the charges against the company. At a separate arraignment, Lieberman, a corporate officer of L & S Foods, Inc., entered a plea of not guilty on his own behalf and on behalf of the corporation. The two cases proceeded to separate hearings. The State appeals from orders of the trial court entered in each case granting defendants' motion to dismiss the indictments. The two cases were consolidated for review.
On appeal, the State contends that: (1) the indictments should not have been dismissed because the Attorney General had the power to initiate the criminal proceedings before the grand jury; and (2) a party whose acts violate the Retailers' Occupation Tax Act may also be charged with theft under the provisions of the Criminal Code. We affirm. The pertinent facts follow.
In each case, defendants attached a copy of the minutes of the grand jury to their motions to dismiss. The report of proceedings before the grand jury in the matter involving Nichols and Buffalo Confectionery Company shows that the presentation was made by an Assistant Attorney General unaccompanied by the State's Attorney or an assistant. In introducing herself to the grand jury, the Assistant Attorney General asserted that she was "assisting" a named Assistant State's Attorney in this particular case. In argument before the trial court on the motion to dismiss the indictments, the Assistant Attorney General stated that the State's Attorney was "absent by his own choice" when this matter was before the grand jury.
In the case involving Lieberman and L & S Foods, Inc., another Assistant Attorney General, again unaccompanied by an Assistant State's Attorney, introduced himself to the grand jury as "assisting" a named Assistant State's Attorney, and added: "I am here at his request."
An Assistant State's Attorney appeared at each defendant's arraignment. However, the record concerning Nichols and the Buffalo Confectionery Company shows that it was the Attorney General's office alone which responded to defendants' motions for discovery and a bill of particulars. Similarly, in both cases it was an Assistant Attorney General who, unaccompanied by personnel from the State's Attorney's office, appeared before the trial court to argue defendants' motions to dismiss the indictments. Finally, it is the Attorney General's office alone which is pursuing this appeal.
1 Prior to considering whether the trial court properly dismissed the indictments, we must preliminarily note our total disagreement with the State's contention that defendants have no standing to challenge the Attorney General's power in this regard. The presence of an unauthorized person during grand jury proceedings is a valid basis upon which to attack an indictment. (See Ill. Rev. Stat. 1975, ch. 38, pars. 112-6(a) and 114-1(a)(5); People v. Flynn (1940), 375 Ill. 366, 31 N.E.2d 591; People v. Munson (1925), 319 Ill. 596, 150 N.E. 280.) Certainly, therefore, if the Attorney General improperly appeared before the grand jury and initiated and obtained the instant indictments, defendants would have suffered substantial prejudice and would have standing to challenge such appearance via a motion to dismiss. The standing of a defendant to challenge the Attorney General's power to initiate the prosecution of a case before the grand jury was implicitly recognized in the recently decided case of People v. Massarella (1978), 72 Ill.2d 531, 382 N.E.2d 262, in which our supreme court proceeded directly to the issue of whether the Attorney General in that case properly appeared before the grand jury.
In his petition for rehearing, the Attorney General maintains that Massarella, which was decided subsequent to our original opinion, supports his contention that his appearance before the grand jury was not improper. We disagree. In Massarella, as in the matter before us, the Attorney General initiated proceedings before the grand jury unaccompanied by the State's Attorney. At the arraignment, the court there was told by Assistant State's Attorneys that the Attorney General would be handling the case, and the State was represented by the Attorney General at all subsequent proceedings. The supreme court examined the development of the common law regarding the powers of the Attorney General and held that the Attorney General may initiate proceedings before the grand jury where the State's Attorney makes no objection. Finding that the State's Attorney had not been excluded from the proceedings by the Attorney General and that the record reflected the State's Attorney's acquiescence to the Attorney General's actions, the court concluded that the Attorney General acted within the scope of his statutory duties.
The supreme court then went on to consider the appellate court's construction of section 112-6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112-6(a)). That section provided:
"Only the State's Attorney, his reporter and any other person authorized by the court may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State's Attorney to attend the sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter."
The court saw no conflict between section 112-6(a) and its finding that the Attorney General could present cases to the grand jury and went on to say that it did not "believe the grand jury provisions can be so narrowly construed" as to nullify the Attorney General's power to initiate and prosecute cases where that power had been granted to him exclusively, e.g., under section 16 of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 453.16). Massarella, 72 Ill.2d 531, 539, 382 N.E.2d 262, 266.
Finally, the court pointed out that section 112-6(a) allowed "any other person authorized by the court" to attend the grand jury proceedings and that such authority had been granted in the prosecution of the Massarella case, stating:
"The court here implicitly authorized the Attorney General to attend; otherwise it would have quashed the indictment, since it has supervisory power over the grand jury in order to prevent abuse of its process. People v. Sears (1971), ...