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12/29/94 PEOPLE STATE ILLINOIS v. GAVINO BENITEZ

December 29, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
GAVINO BENITEZ, DEFENDANT-APPELLANT



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES ZAFIRATOS, JUDGE PRESIDING.

Presiding Justice Hoffman delivered the opinion of the court: Johnson and Theis, JJ., concur.*

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Defendant, Gavino Benitez, appeals from his conviction for murder and three counts of aggravated battery. He raises the following issues: (1) whether the court lacked jurisdiction over him because the indictment failed to properly charge him with any offense; (2) whether the court's findings were based upon a misapprehension of the evidence; and (3) whether he was otherwise proven guilty beyond a reasonable doubt. For the reasons which follow, we affirm.

On October 30, 1991, an assistant State's Attorney appeared before the grand jury and requested the following:

"a true bill against Alberto Pacheco [sic], Gavino Benitez and Javier Jiminez for the offenses of murder committed against Jose Montez and for the offenses of attempt murder, aggravated battery and armed violence committed against Ivan Amador on or about the 13th of October 1991 near 32nd Street and 54th Avenue, in Cicero * * * Illinois."

Evidence was produced in support of these allegations, and following deliberations, the grand jury foreman returned a "true bill" on all charges. However, on November 4, 1991, indictment no. 91-CR-26366 was issued, charging co-defendant Alberto Pacheo alone with two counts of murder for the stabbing death of Jose Montez, and with attempted murder, armed violence, and two counts of aggravated battery as to "Marlo Lopez, by stabbing him [sic ] in the hands" with a knife.

On November 27, 1991, defendant was given notice of an indictment against him. At his arraignment on December 3, 1991, the State requested leave to file another indictment under no. 91-CR-26366. Defendant raised no objection and waived formal reading of the document. This document charged Pacheo, Jiminez, and defendant with the October 13, 1991, murder of Montez, and with attempted murder, armed violence, and three counts of aggravated battery upon Amador. However, the grand jury had not reconvened prior to the issuance of this second indictment, and there is no record of any written motion to amend the original indictment.

Defendant now argues that neither of these instruments served to properly charge him because the first, while facially valid, omitted any reference to him, and the second, lacking the signatures of both the State's Attorney and the grand jury foreman, was apparently "never returned by the grand jury at all." Defendant also relies upon the testimony of Edwin Anderson, deputy clerk of the circuit court of Cook County, that grand jury records failed to show a true bill against defendant for murder.

In response, the State initially points out that defendant failed to properly object to the second indictment and thus should be found to have waived the issue. However, because waiver is a limitation on the parties but not upon this court (People v. Sullivan (1992), 234 Ill. App. 3d 328, 600 N.E.2d 457, 175 Ill. Dec. 526), we address this matter despite any waiver.

Defendant emphasizes that the first indictment must have been the proper indictment for the offense in this case because it bore the signatures of both the grand jury foreman and the State's Attorney and was otherwise facially valid. He reasons that the second indictment was void because it lacked both signatures. We disagree.

First, although the second document lacked the foreman's signature as provided under section 111-3(b) of the Code of Criminal Procedure (Code)(Ill. Rev. Stat. 1991, ch. 38, par. 111-3 (b)), it cannot be disputed that the grand jury returned a true bill against defendant for the offenses charged therein. The transcript of proceedings shows that the assistant State's Attorney requested a true bill for the specific offenses charged in the second indictment, evidence was presented pertaining to them, and the foreman stated that a true bill would issue. Further, although deputy clerk Anderson could find no record of a true bill against defendant for murder, he admitted that the records showed that a true bill for some offenses was returned against defendant in October 1991.

An indictment must originate by action of the grand jury and no other entity. (See People v. Kincaid (1981), 87 Ill. 2d 107, 124, 429 N.E.2d 508, 57 Ill. Dec. 610; People v. Strauch (1910), 247 Ill. 220, 226-27, 93 N.E. 126.) Once the grand jurors concur that the evidence warrants a true bill, the State's Attorney must prepare the indictment to conform to the grand jury's finding and submit it for signature by the grand jury foreman. (See Ill. Rev. Stat. 1991, ch. 38, par. 112-4(d).) However, the foreman's signature is necessary only as a matter of direction to the clerk and for the information of the court; its presence or absence does not affect any substantial right of the accused, and its omission is not grounds for reversal. People v. Hazard (1935), 361 Ill. 60, 63, 196 N.E. 827; People v. Lamprey (1979), 79 Ill. App. 3d 1065, 1069, 398 N.E.2d 1076, 35 Ill. Dec. 126; People v. Wilson (1972), 7 Ill. App. 3d 158, 161, 287 N.E.2d 211.

With regard to the necessity of the State's Attorney's signature, the Code is silent. Section 111-3(b) requires that an information contain the signature of the State's Attorney and that an indictment be signed by the foreman. (Ill. Rev. Stat. 1991, ch. 38, par. 111-3(b).) Under a prior enactment of section 111-3, this court held that in the absence of statutes to the contrary, ...


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