APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN and the Hon. CALVIN STONE, Judges, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 20, 1979.
On August 30, 1977, the defendant Donald L. Deems was indicted by the Peoria County grand jury for the offense of theft of a Ford automobile having a value in excess of $150 which offense is alleged to have occurred on August 17, 1977. The defendant was arraigned on September 1, 1977, and the trial set for November 7, 1977.
The offense charged was a violation of section 16-1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(d)(1)), which provides that a person is guilty of theft if he:
"(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property * * *."
On the day set for trial, November 7, 1977, before Judge Iben, the State moved to dismiss the indictment with leave to reinstate, contending that subsequent investigations revealed that the facts would not support a conviction under section 16-1(d)(1). The court denied the motion to dismiss and stated the motion should have been made prior to the day set for trial. The State then requested a continuance which motion was also denied. The State advised the court that the correct charge of theft should have been brought under section 16-1(a) and that the State intended to correct the error by rewording and reindicting the defendant under the proper charge within a few days. The State explained the difficulty in this manner. The original charge was receiving stolen property under section 16-1(d)(1), and the new charge would be under section 16-1(a), exerting or obtaining unauthorized control over property of another. We believe it important to note that in the first indictment the owner of the stolen property was listed as American National Bank of Nashville while in the second indictment the property was owned by American National Bank and Trust Company of Chattanooga, Tennessee. Proceeding on the first indictment would have produced a fatal variance in proof of ownership as well as other facts contained in the charge.
The following exchange then took place:
"People: Well your Honor, this indictment is defective.
Court: Well, don't worry if the indictment is defective.
Defense: Defense would answer that we are ready for trial * * * and would the court deny the People's Motion and call this matter for trial forthwith."
The court persisted in its refusal to allow the State to dismiss or to permit a continuance and called the case for trial on the basis that the "defendant has a right to go to trial and a right to be found not guilty."
The defendant was sworn as a witness after the State informed the court that the People were unready to proceed to trial and could not present any witnesses. Without hearing any evidence the court said, "Very well. The court will find the defendant not guilty." Judge Iben then dismissed the indictment and apparently indicated that it was a judgment of acquittal.
A new indictment charging the defendant with the offense of theft under section 16-1(a) was issued by the Peoria County grand jury the next day, November 8, 1977. On November 10, 1977, Judge Iben recused himself, and the cause was assigned to Judge Stone for arraignment on that date.
After acknowledging receipt of the new indictment, the defendant moved for dismissal of the new charge on the ground that the proceeding before Judge Iben on November 7, 1977, was a trial and thus that double jeopardy would attach. The court then dismissed the indictment of November 8, 1977, on the grounds of double jeopardy.
The State seeks to appeal from the denial of its motion to dismiss the first indictment, the denial of a continuance, the acquittal, and finally the dismissal of the second indictment on the grounds of double jeopardy. Defendant has filed a motion to dismiss the State's appeal which this court ordered to be taken with the case.
Several issues are presented by this appeal. While the determinative issue is whether the ruling of the trial court was in fact an acquittal, we first must resolve the threshold issue of whether the court properly refused to grant the State's motion to dismiss the original indictment. The only reason given for refusing the State's motion was that it should have been filed earlier and hence was untimely.
1 We are troubled by the court's ruling because there were no findings of prejudice and there remained over 30 days before the 120-day rule would expire. (See People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244.) According to the record, the State's Attorney informed defense counsel of his intent to seek dismissal of the first indictment during the morning of November 7, 1977, but the motion was not brought to the judge's attention until the case was called for trial and therefore was labeled untimely. Under these circumstances, and particularly when construing the authority to dismiss indictments which usually rests in the prosecuting attorney alone, the trial judge should have allowed the State's motion to dismiss, and it was an abuse of discretion for the court not to have done so.
"The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated." United States v. Cowan (5th Cir. 1975), 524 F.2d 504, 513, cert. denied sub nom. Woodruff v. United States (1976), 425 U.S. 971, 48 L.Ed.2d 795, 96 S.Ct. 2168.
This court's decision in People v. Thomas (1975), 24 Ill. App.3d 907, 322 N.E.2d 97, is cited by defendant. In Thomas both the State and the defendant requested a continuance and both motions were denied. The trial court, after calling a jury, dismissed the case "for want of prosecution" after the State refused to proceed with the voir dire. This court concluded that the trial court had no right to dismiss for want of prosecution, but made a statement on which the defendant relies: "Where the motion for a continuance has been properly denied the case should be called for trial, and if no evidence or insufficient evidence is presented by the People, then a judgment of acquittal may be entered by the Court."
The defendant has failed to recognize that this court's statement in Thomas is limited to a "properly" denied continuance. As we stated earlier, the record in the instant case clearly indicates an improper denial of the State's motion to dismiss as well as its motion for a continuance. Since this was the first request for a continuance, and for only several days, it is evident that such an insignificant delay would not have prejudiced the defendant. We believe that the State's request for dismissal or continuance was a reasonable request which was improperly denied. See the well-reasoned opinion of a similar set of facts in People v. Dellecarto (1978), 67 Ill. App.3d 490, 384 N.E.2d 902. The defendant's reliance on this court's decision in City of Peoria v. Davis (1976), 39 Ill. App.3d 557, 350 N.E.2d 531, is also distinguishable. In Davis, the trial court granted the defendant's motion to suppress evidence and then the three defendants were sworn as witnesses. En Masse, each defendant stated that he was not guilty, and the trial court entered a judgment of acquittal. On appeal, after noting that the State had not claimed that the appeal was interlocutory from the order suppressing the evidence, we held that the trial court's judgment was an acquittal after a hearing on the merits and therefore not appealable.
2 In the case sub judice, although the defendant was sworn as a witness, no testimony or evidence was received. Consequently, it was impossible for the trial court to make a finding on the merits. The dismissal of the indictment in the case before us came about by the request of the defendant and his demand for an immediate trial on a faulty indictment. The most recent case concerning the validity of a double-jeopardy claim involved People ex rel. Mosley v. Carey (1979), 74 Ill.2d 527, 387 N.E.2d 325, and Mr. Justice Underwood said:
"Of particular importance in this regard is whether the mistrial may fairly be said to have been attributable to defendant, for where a mistrial is declared upon defendant's motion, a different analysis is applicable. The United States Supreme Court set out the standard in United States v. Jorn (1971), 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547, as follows:
`[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error.'" (400 U.S. 470, 485, 27 L.Ed.2d 543, 556, 91 S.Ct. 547, 557.)
We believe there can be no doubt that the dismissal entered in the case at bar was the result requested by defendant.
Having concluded that the trial court erred when it refused to grant the State's motion to dismiss, we next must consider whether the subsequent proceeding amounted to a judgment of acquittal. If defendant was in fact acquitted, then prosecution on the second indictment would constitute double jeopardy and we would be compelled to reverse. We note that the trial court examined no evidentiary matters between the parties, no issues of fact or law were determined, and neither party presented a smidgen of evidence to the court after the prosecution decided not to proceed on a faulty charge.
3 We believe the controlling decision is that of the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 57 L.Ed.2d 65, 98 S.Ct. 2187, which involved a dismissal during trial of two counts of a three-count indictment because of prejudice from preindictment delay. In holding that the Government was not precluded from appealing the order dismissing the first two ...