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People v. Owens

OPINION FILED NOVEMBER 1, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BERT OWENS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Carl F.J. Henninger, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 3, 1982.

Defendant was charged by indictment filed in the circuit court of Du Page County with attempted murder, two counts of aggravated kidnaping, two counts of aggravated battery, and three counts of armed violence in violation of the Illinois Criminal Code. (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 10-2(a)(3), 10-2(a)(5), 12-4(c), 12-4(b)(1), 33A-2.) During the pretrial period the court was advised that, with the exception of attempted murder, defendant had earlier been indicted in Cook County for the same offenses as a result of the same acts. The defendant moved to have the duplicate charges transferred and consolidated with the pending Cook County charges. The court granted that motion. Later, the circuit court of Cook County dismissed the charges against the defendant *fn1 and the Du Page County State's Attorney moved the Du Page Circuit Court to reinstate the charges previously transferred. The court granted that motion and defendant proceeded to jury trial on all counts charged in the original Du Page indictment. The jury found defendant guilty of two counts of armed violence, two counts of aggravated battery, and two counts of aggravated kidnaping and found him not guilty of attempt murder and one count of armed violence. The defendant was sentenced to 12 years for each aggravated kidnaping count and for the two armed violence counts, and five years for each aggravated battery count, these terms to run concurrently.

On October 21, 1979, Filiberto Sanchez was involved in a minor traffic accident with a car driven by Louis Owens. Sanchez, Owens and Michael Kincy, a passenger in the Owens' car, finding no damage to either car, agreed to have a few drinks together. On their way to a tavern in Cicero, Illinois, the three were joined by an individual on a motorcycle. That individual was later identified as the defendant, Bert Owens. Eventually, the group arrived at Mickey's Lounge. While at the lounge, Sanchez danced with a woman, later identified as Linda Shelton. After a time Sanchez suggested that he and Shelton go somewhere alone. As they were leaving the lounge, Sanchez was robbed at gunpoint. He later identified defendant as one of his assailants.

After the robbery, Sanchez was forced into his own automobile and taken into Du Page County. Upon reaching an open field located in Du Page County, Sanchez was told to take off his clothes. While he was doing so, Sanchez was knocked unconscious. He was stabbed repeatedly in the abdomen. When Sanchez later regained consciousness he was naked, bleeding profusely and without his car.

I. REINSTATEMENT OF CHARGES

We turn first to defendant's contention that, having once transferred the charges to Cook County, the Du Page County Circuit Court lacked the power to reinstate these charges. In essence defendant's position is that transfer in this case amounted to a dismissal for improper venue, and that therefore the court lacked the power to try the case absent a return transfer from the circuit court of Cook County. He cites no case support for this characterization and relies on the opinions in People v. Hill (1966), 68 Ill. App.2d 369, 216 N.E.2d 212, and People v. McClellan (1977), 46 Ill. App.3d 584, 360 N.E.2d 1225, claiming that the reinstatement worked to deprive him of his constitutional right to proper venue. These cases are simply inapposite to the case at bar.

In People v. Hill (1966), 68 Ill. App.2d 369, 216 N.E.2d 212, the court was presented with a case in which the charging instrument was utterly devoid of any allegation which would establish venue. The court there held that the charge that a crime occurred in a particular county was a material averment and found that the complaint was void due to this omission. The indictment in the case at bar did contain an allegation that the crimes charged were committed in Du Page County. Therefore, the documents were not, as were those in Hill, void ab initio.

Similarly, the reasoning in People v. McClellan (1977), 46 Ill. App.3d 584, 360 N.E.2d 1225, is not dispositive. In that case a defendant was charged with counts of aggravated kidnaping, armed robbery, and attempted murder. Although the indictment alleged that all three crimes took place in Champaign County, proof adduced at trial showed that the stabbing which formed the basis for the charge of attempt murder took place in Cook County.

In the case at bar the indictments contained an averment that the crime charged took place in Du Page County. No contention is made by defendant that the State's Attorney was unable to prove that averment at trial. Du Page County was not an improper venue such as were those in Hill and McClellan. Procedurally, the reinstatement of charges was proper. Contrary to defendant's position, the reinstatement of charges was also proper from a constitutional standpoint. The transfer of charges from one county to another does not automatically implicate the constitutional right to proper venue conferred by section 8 of article I of the Illinois Constitution (People v. Ondrey (1976), 65 Ill.2d 360). In Ondrey, the court held that the administrative failure to transfer a charge from Williamson County to La Salle County did not render the latter court's acceptance of the guilty plea and order of imprisonment void. The court noted in dictim that the place of trial was not a jurisdictional matter.

• 1 Defendant's contention that the trial court, having once transferred the case, lacked the jurisdiction or the power to try him on those charges is not supported by the case law. The courts> in Illinois have recognized that a circuit court's power to try a defendant derives from the constitution and is not contingent upon the presence of a viable indictment. Further, it appears, in this case that a valid indictment with a proper allegation of place of the crime charged existed. No motion to quash that indictment was put before the Du Page court. In our opinion, reindictment would have been a useless administrative act. Since no argument can be made that the court lacked jurisdiction and it appears from the record that sufficient proof was adduced to show that the crime was perpetrated in Du Page County, the trial court's action is affirmed.

II. ADMISSIBILITY OF THE KNIVES

During trial, the State moved the admission of two knives, People's Exhibits Nos. 24 and 25, into evidence. The first was a knife found and given to police by Edward Vaisvilas. Vaisvilas testified that he had loaned his car to defendant on the date of the offense and had found the knife in the car the following day. The second knife was one which had been seized by police from co-defendant Michael Kincy at the time of his arrest.

Defendant makes two arguments concerning the admission of the knives. First, he contends that this evidence was irrelevant to the victim's (Filiberto Sanchez) testimony that he did not see the knife. It is defendant's contention that Sanchez merely "believed" that defendant wore a knife. A reading of the victim's complete testimony indicates that he testified that both defendant and Kincy wore knives on their belts. Although he did say that he did not "see the knife itself" this statement, taken in context, indicates merely that the victim did not see the blade. The record includes this exchange between Sanchez and the State's Attorney:

"Q. Similarly, the defendant Bert Owens, did you observe whether or not he had a knife on his person on the night or early morning hours of October 22, 1979?

A. Yes.

Q. Do you know where he carried the knife?

A. On the belt, too, but, you know, his knife looks a ...


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