*1 condition, to which agreed of this parties enforcement of duration has existed and which throughout of contract, an unconstitutional impairment can become re Fire Roberts Park of that the benefits contract. (See Member Protection District of this with knowledge in the was sought ship System or said condition, it cannot be impair clearly constitu within the meaning diminish benefits tional provision. claims also relating
We have reviewed plaintiff’s of estate Const. and forfeiture of blood (Ill. corruption I, unusual sec. cruel and punishment art. (U.S. 11), Const. Const., and due amend. process (Ill. VIH), Const., V, We hold that 2; I, art. sec. U.S. amends. XIV). here violates none these the termination payments provisions. court appellate
Accordingly, judgment benefits the Board’s denial pension sustaining affirmed.
Judgment affirmed. WARD, MORAN, and CLARK and toоk no JJ., C.J., of this case. the consideration or decision part (No. 50467. ILLINOIS, OF OF
THE PEOPLE THE STATE Appellant, FRANKLIN Appellee. CREQUE, Dec. 1978. Rehearing denied Opinion Oct. 1978.— filed *4 CLARK, J., dissenting.
Bernard State’s T. Carey, Attorney, Chicago (Lee Callum, Ann Assistant State’s Attor- Mary Hettinger for the neys, counsel), People. Defender, of Public Doherty, Chicago (John
James J. Moran, Defender, Thomas Assistant Public for counsel), appellee. Gursel,
Roosevеlt Thomas and Akim for Chicago, amicus curiae the Cook Bar Association. County *5 delivered the
MR. UNDERWOOD opinion JUSTICE of the court: defendant, was in Cook Franklin
The Creque, charged and with the March battery County aggravated At the murder of Martha wife. attempted Creque, these on conclusion of a March 31 preliminary hearing cause existed for the found no the probable charges, judge did find cause but probable murdеr attempted charge, Rev. Stat. hold defendant for the battery aggravated (Ill. 11, a ch. 109—1 On 3). pars. through April 109 — both indicted defendant on Cook County the court dismissed The circuit subsequently charges. due on indictment for murder attempted process grounds, a motion to State allowed joint we appealed, court under Court transfer this Supreme appeal Rule Ill. 2d 302(b) (58 302(b)). was
The sole witness at the State’s рreliminary hearing in the that she was victim, She testified Martha Creque. she someone her when heard room of living apartment she ran to a in the door and that to break back attempting however, Defendant, hid behind a door. bedroom and her back door and found succeeded in down breaking his fists and then He beat her with in bedroom. chest, times in neck once in stabbed her three brother, who defendant’s hand and arm. She testified that bedroom, to “come also into the told defendant had come defendant on” and to and eventually “stop” persuaded door. Mrs. was Both ran out then Creque quit. had to defendant’s brother actually pull uncertain whether from her. defendant away to the
The Attorney’s presentation State’s subsequent witness, an involved one investigating only was essentially summary officer whоse testimony He victim’s statements earlier preliminary hearing. his wife did not indicate that defendant quit stabbing brother intervened. when defendant’s for in reasons its action court cited four The circuit First, it found that motion to dismiss. defendant’s allowing failed to show justification” “compelling prosecution for the use of evidence only hearsay obtaining course, The indictment. with difficulty finding, meet a there is no requiremеnt hear- standard before justification” presenting “compelling say jury. in Costello v. United Court held States Supreme *6 397, 406, 359, Ed. S. that 100 L. 76 Ct. 350 U.S.
(1956), on an be based hearsay. indictment may solely Speaking court, the for the Mr. Black contention rejected Justice an is to because only indictment open challenge “If to the evidence was jury. hearsay presented grand indictments were to held to on the be opеn challenge that there was or evidence ground incompetent inadequate before would be the the jury, delay grand resulting great result of such a rule would be that trial indeed. The before on the merits a could insist on kind always defendant trial and ade- determine preliminary competency U.S. of the evidence before quacy jury.” (350 397, 402, 406, He 359, 363, 100 Ed. S. Ct. L. 76 408.) nor “Neither the Fifth Amendment any also there noted: kind other constitutional prescribes provision *** An evidence which must act. juries upon and unbiased returned constituted indictment by legally if like an information drawn by prosecutor, grand jury, on for trial of the face, on is to call valid its charge enough more.” The Fifth Amendment the merits. requires nothing 397, 401-03, 359, 362-64, 76 S. Ct. 100 L. Ed. U.S. (350 this rule 406, Court reaffirmed The Supreme 408-09.) 1, L. 410 U.S. 35 Ed. 2d United States v. Dionisio (1973), “A has 764, stated: 67, wherein it was 93 S. Ct. a crime to determine whether broad investigative powers it. The who has committed jurors committed and has been rumors, offered by evidence prosecu- act on tips, may 522
tor, or 1, 15, their own U.S. personal 35 knowledge.” (410 67, 80, L. 764, Ed. 93 S. Ct. also 2d 772.) (See Branzburg v. 665, 701, 626, 408 U.S. 33 L. Ed. Hayes (1972), 2d 651, Ct. S. And in United States v. again, Calandra 338, 344-45, L. U.S. Ed. S. Ct. Court noted: “The Supreme drawn, sources of information are grand jury’s widely of an indictment not affected validity by Thus, character an evidence considered. indictment valid on its face is on the not subject challenge ground on acted the basis of or inadequate evidence ***.” The Standards to the incompetent Relating Administration Criminal American Bar Justice Function, Association Prosecution Standard 3.6 (The that a should to a state (1971)) present he which believes admissible at trial. It only however, “in cases the recognizes, appropriate prose- cutor witnesses summarize admissible present evidence available to him which he believes will be able at trial.” present This court has on considered numerous question 37, 41, occasions. 19 Ill. People Jones court earlier “an examined cases indictment stating *7 will not be unless all the witnesses were quashed incompe tent or all which it was found was testimony upon ” noted incompetent and usе of the [citations] “[t] word with reference to ‘incompetent’ both witnesses and before a is testimony The jury misleading.” court then that those cases be should explained interpreted to mean “that a before testimony’ ‘incompetent grand jury is a witness only by testimony disqualified given by and, law as mental there (such complete derangement); fore, if the witness is before the testimony competent, 37, is Ill. grаnd competent.” 2d (19 42.) Quoting Costello the court held there was no to the bar return of a true bill based on evidence alone. The court hearsay
523 of in the favors dispatch noted that the “law promptness in with of courts when harmony criminal business of the accused and effective protection rights an accused The when interests of the delay public. great this can assail an indictment on [incompetent ground to review all and cause the trial court evidence] done in this to the was jury, presented the assurance of a case. Such adds procedure nothing 37, fair trial entitled.” Ill. to which the accused is (19 of reaffirmed in v. were principles People Jones 53 People Hopkins 2d 452.
Professor noted in his treatise on evidence: Wigmore jury are
“Proceedings parte’ before a both ‘ex moreover, interlocutory; only and seeks for cause’; hence, ‘probable principles, jury-trial on all Moreover, rules of apply. Evidence should not in point of policy, no rules should their nor hamper inquiries, need a presentment amounting only probable cause be based system rigid on of of sifting (1 Wigmore, evidence ***.” 4, Evidence (3d (1940).) sec. ed. 21 Costello, We “on all that the agree principles” holdings and rule are Hopkins apply proper disposi- Jones tive the contention that an indictment not be based on hearsay. the circuit stated that he
Secondly, dismissed judge the indictment because did not affirma prosecution disclose to the tively nature of its hearsay evidence. In of this defendant relies on support reasoning, United States v. Cir. 471 Estеpa F.2d (2d 1972), United States v. Basurto Cir. 1974), F.2d (9th 781. Both cases have been by readily distinguished courts, and the their has been validity holdings Court cases questioned Supreme light subsequent (see United States v. Marchand Cir. 1977), F.2d (2d n.29, cert. denied 434 U.S. 54 L. Ed. 98 S. Ct. re and United States v. Estepa, 649, 655, re Cir. but Bracy (9th F.2d 1977), Basurto), *8 524
even
their continued
neither
assuming
vitality,
supports
the trial court’s
held that an indictment
Estepa
ruling.
must be dismissed when the
has been misled
into
it
the direct evidencе of an
thinking
hearing
when
However,
it is not.
eyewitness
court
noted
“
here is no affirmative
in
to tell the
duty
grand jury
‘[t]
haec verba it is
United States
hearsay,’
v.
listening
288,
denied,
388
cert.
390
Malofsky,
F.2d
289 (2d Cir.),
1017,
1273,
U.S.
88 S. Ct.
L. Ed.
168
***.”
20
2d
(1968)
Basurto,
1132,
the court
F.2d
held
(471
1136.)
merely
that due
is violated when a defendant must stand
process
trial on an indictment
which
knows is
government
material,
based on
but
court noted
testimony,
perjured
that “no
be made to determine
independent
inquiry
kind
evidence
considered
by
States,
its decision. Costello v. United
350 U.S.
making
359,
406,
76 S. Ct.
As a third reason for the dismissing trial did not the court noted that the advise prosecutor that it to secure the of had the grand jury power presence course, the victim of there is no by subpoena. Again, do so. The that he requirement prosecutor presented evidence to sufficient the acceptable apparently satisfy that cause for the return of an existed probablе indictment. is under no to all prosecutor duty present has, nor to inform incriminating grand of of or jurors existence additional more direct evidence. If the evidence was not to sufficient presented convince the that there was cause jury probable defendant, it, of course, have would no charge voted true bill or as to the of existence inquired additional evidence. We note did advise the prosecutor of its jury whom the right subpoena anyone against State indictment, seek an might thereby fulfilling Rev. Stat. ch. statutory duty (Ill. par. 4(b)). 112—
The trial as his final reason for judge gave dismissing the indictment the fact did not advise prosecution that a had found no judge previously cause probable to believe defendant had committed addition, murder. defendant attempted contends absent cirсumstances extraordinary prosecution barred section 7 of article I by of Illinois Constitution of 1970 from an from indictment obtaining after a at a no-probable-cause determination preliminary however, contention, This was in People rejected
hearing. the court Kent 54 Ill. wherein stated: “In our of the constitu opinion language as the of its tional well history provision, evolution, its any negates thought purpose to attach to a no was finality probable finding cause, or to establish exclusive mutually pro so that would cedures be grand jury proceedings if barred an accused had been discharged upon 163-64. preliminary hearing.” noted, Kent the court the record As proceedings it the Sixth fllinois Constitutional Convention makes was intended clear that this permit quite provision of one who has been seek indictment on a no cause. *10 previously discharged finding probable his statement of his and conclu- written findings in sions trial indicated that the the opinion judge errors of what he as the State’s combined effect regarded “in order the indictment necessitated dismissal process upon protect judicial integrity and due Neither of fundamental fairness basis process.” defendant, hоwever, attention called to our any nor has to inform a jurors State grand authority requiring cause, or an of no invalidating prior finding probable such without indictment returned knowledge had been made. finding unless the preliminary
In our by finding judgment, is to of no cause presenta- probable preclude judge hearing crime, which of evidence of the same tion to grand jury not, not be it need Kent holds does jury apprised acted We believe the of that prosecution properly finding. neither preliminary jury by informing nor the cause as to battery aggravated probable finding of no as to murder. cause probable attempted finding failure that the Defendant also contends investigator’s defendant to tell stopped knifing victim his brother told him to “come on” and when such evidence him because shows “stop” prejudiced he lacked intent the viciousness of the kill. Although attack as testified to the victim considerable by produces as to we decline to make doubt any prejudice, determination defendant seeks. A defendant substantive it is not an indictment on the challenge ground not evidence. by supported adequate (People Jones or innocence is to be 19 Ill. Guilt 37.) determined аt trial.
Defendant claims that the indictment should be dismissed because the did instruct not as to the difference between battery grand jury aggravated murder. Defendant is entitled to a in- proper attempted trial, struction at but that is not applicable requirement the accusatorial stage. defendant asserts a to counsel and a
Lastly, right right of cross-examination “A grand jury during proceedings. is not an in which adversary proceeding hearing or innocence of the is accused guilt adjudicated. Rather, it an ex to determine whether parte investigation a crime has been committed and whether criminal pro should be instituted any (United ceedings against person.” 338, 343-44, States v. Calandra U.S. 38 L. Ed. 561, 569, Neither the S. Ct. defendant nor his counsel had a right participate our statute Rev. by proceedings excеpt provided (Ill. Stat. ch. which is not par. applicable 4), 112— here. *11 cases such is While in as this there some temptation into a of transform the “kind proceedings trial” v. United States 350 preliminary (Costello (1956), 359, 363, 397, 402, 100 L. 76 S. Ct. U.S. Ed. 406,408), for the in our the most accused important protection course, of law is a fair trial itself. We of system recognize, inconvenient, and that a trial is time-consuming expen- 528 there not
sive—a burden by acquittal appears repaid —but time- burdensome, and costly little in adopting logic As the remedy. jury procedures consuming saddle it: that would Court has “Any Supreme put holding mini and trials with showings preliminary its frustrate would assuredly impede investigation interest in the fair and administration expeditious public’s v. Dionisio of criminal laws.” United States (1973), 67, 764, 1, 17, Ct. 773. 81,, 410 L. Ed. 93 S. U.S. of of the circuit court Accordingly, judgment is reversed and the the indictment Cook County dismissing is remanded for further cause proceedings.
Reversed remanded. CLARK, MR. dissenting: JUSTICE it, I see issue in this case is whether As the central circuit court dismiss an indictment obtained may through of substantial to negate suppression tending of offense the existence of an essential element The answer is majority’s apparently charged. indictment, such an circuit court not dismiss because of such tactics wоuld unduly prohibition prosecutorial I burden of If the administration justice. disagree. of its “historic to have any hope fulfilling “citizens unfounded function” against protecting States v. Calandra criminal prosecutions” (United 568, 613, U.S. 38 L. Ed. S. Ct. courts not permit prosecutors manipulate ought 617) of substantial exculpa- grand jurors through suppression evidence. tory key understanding significance in this case is that the indictment
evidence suppressed the offense issue here the defendant with charged ch. 8—4 murder Rev. Stat. pars. attempted (Ill. kill is the intent which (attempt), 1(a) (murder)), 9— Harris an essential element. People (See *12 led well have The evidence suppressed might 2d 27.) conclude, that had Pompey, to Judge jurors grand the defendant to not cause believe there was probable to intended kill wife. had to tell the was not jury Judge
It necessary grand cause to there not decided that was probable had Pompey to kill his wife. had that defendant intended believe a about Indeed, what jury judge thought telling grand them have been to would improper the evidence presented it have intruded would upon and because prejudicial, evaluate of the independently right of that However, evidence. suppression prosecutor’s which had led of Judge Pompey part even more the intent to kill was conclude lacking intruded seriously independence upon was the of that evidence functional jury. Suppression that such evidence did equivalent telling their exist and that even were not though they getting “secondhand,” all of the facts were material they getting truth, however, is facts then Less than the whole available. no about not the truth and amount philosophizing need for and in the administration speed efficiency based on half the can an indictment criminal justice change truth. truth into one based whole Acquittal upon for for months of anxious uncertainty, poor compensation loss massive, for the and expenses, crushing perhaps legal name, and for humiliation of one’s the public good v. Ill. Sears one’s family. People (See is tantamount to the to indict therefore power if its exercise is not a basic power destroy, tempered by sense of fair justice play. not, now,
This court has before given carte blanche with the As as last recently year, jury. 261, this court Hughes Kiley its reaffirmed commitment implicitly providing examination of miscon- “pretrial potential prosecutоrial duct before the The court indicated grand jury.” by way of dicta at least the author intended be (which followed) that where a defendant clearly factual alleges legal obtained, basis for dismissal of an indictment so “[t] motion, court found such clear hearing having allega *13 tions to be the record present, examine to determine may whether the indictment should be dismissed.” Ill. 2d (67 statement was not аbove-quoted hypo thetical of some obscure new but theory, application rather, was based substantial from this and upon authority other courts’ decisions. v. Sears People 49 Ill. (See Both 2d courts and the have 34-36.) profession conduct recognized wrongfulness prosecutorial issue here: at
“The should disclose to the grand any evidence which will negate guilt.” knows tend to Standards, (ABA The Prosecution Function 3.6(b) sec. (1971).) United States v. Cir. Estepa 1972), F.2d (2d
the United States Court of for the Second Circuit- Appeals this in a similar context. See also recognized problem United States v. Marchand Cir. 1977), F.2d (2d n.29, cert L. denied 434 U.S. Ed. 760, 98 S. Ct. 732.
It is reverse dismissal of an indictment of a easy man accused of to beat and stab his wife to attempting for death. the court’s discussion of the example, (See, “viciousness the attaсk” as it bears the absence of upon in this But the relaxed case prejudice (72 527).) attitude which the court toward displays prosecutorial misconduct before the eventually permit at issue here to the administration practices permeate further an justice, important eroding against protection who, time, those few from time to lose prosecutors sight ideals have sworn to I therefore they higher uphold. dissent. respectfully