*1 Thеre was nothing in the trial court’s findings of fact at sentencing hearing relating to defendant’s financial resources or to his ability future pay this fine. Absent such findings I do not believe this fine can be sustained. addition, a fine of *3000is at odds with theory underlying the trial imposition
court’s of sentence in this case and runs counter to the guarantees I, of article section Illinois, the 1970 Constitution of which provides pertinent part:
“All penalties shall be determined both acсording seriousness of the offense and with objective of restoring the offender to useful citizenship.” probation and weekend imprisonment imposed by the trial court are
designed to allow the defendant to support his dependents and to initiate reform while simultaneously repaying his debt society. Yet the burden of such a large fine could potentially interfere with progress defendant’s by inducing criminal conduct if he is legitimately unable to pay off the fine. Accordingly, I believe that defendant’s fine *3000 should be stricken as a condition probation. of his ILLINOIS, Plaintiff-Appellant, PEOPLE OF STATE OF
THE THE MELSON, Defendant-Appellee. DAVE
Fifth District No. 76-537 Opinion May filed MORAN, J., dissenting. G. (Bruce D. Irish and Attorney, of Edwardsville Byron, State’s G. Nicholas James Assoсiation, counsel), for the Attorneys Sanders, Illinois State’s
R. both of People. appellee. Hill, City, for Hill, Mateyka and of Granite A.
Thomas delivered CARTER PRESIDING Mr. JUSTICE *2 court: of Madison Circuit Court of the from an order appeals State
The charging Davе Melson against indictment returned County dismissing an substance, trial PCP. The delivery a controUed him unlawful of with the if cause probable not have found grand jury could court ruled that the indictment, in the The flaw instructed on the law. they properly had been grand before the court, lack of evidence was the according to the trial as to the defendant part of the knowledge on the jury tending to show agent an of he sold to of the substance composition actual (MEGSI). Illinois Group of Southwest Metropolitan Enforcement authority without that the trial court acted State contends The challenge on the indictment, open to because it is not dismissing the evidencе. supported by adequate that it is not powdery of a 9, 1976, packets tinfoil On defendant sold seven June The. of MEGSI. agent “THC” to an represented that he to be substance had some. said that he “THC” and defendant agent had аsked about some of Identification the IUinoisBureau analyzed by The substance was later “THC”, a PCP, substance. a controUed gram as “THC” but .3 of not cannabis, substance. is not a controlled derivative of composition knоwledge of the actual claims that he had no Defendant they were thought sold, parties involved he and that all powder an essential “THC”, presented on thus evidence was dealing with no that defendant charged, which dеfendant element of the offense with substance. “knowingly” delivered a controlled Sears,49 Ill. 2d v. People from language trial used its order the court a required 280, process that due 14, as to hold 273 N.E.2d “knowledge” was no evidence of indictment since dismissal of the that the proposition for the was cited presented grand jury. to the Sears In Sears grand jury. over the supervision power court has an inherent grand to a testimony presented pеtitioned to review the trial court was existed. prosecutor wrongdoings alleged if jury to determine opinion, Sears case. In our yet had not been returned Indictments indictment prior act may that a proposition stаnds Fried, (2d Cir. 161F.2d 453 In re process. abuse prevent injustice and cited 1961), were 297F.2d v. 1947),and Austin United and Austin In re Fried as Sears. proposition for the same by the trial court v. United States involved the trial suppression court’s of documents grand from the on jury grounds that the documents testimony were taken from defendants violation of their constitutional rights. The appeal courts of held that the district had inherent supervisory prior powers jury they may over the act indictment prevent injustice process. abuse Sears, Fried, it In re and Austin
While is our accurately that applied situations, state the respective law as to their factual they are not authority for dismissing this indictment. facing County situatiоn the Madison Circuit Court was
matter improper before the trial over court would have had power prior supervise, indictment but rather an after-the-fact to the on sufficiency of which the grand jury could indict. grounds for dismissing prior indictment to trial are set out 1(a) section (Ill. the Code Criminal Procedure Rev. 114 — 38,
Stat.
par.
1(a)(1-10)).
ch.
Sufficiency
of evidence
114 —
among
grounds
not listed
for dismissal. This court
McAleer,
App.
34 Ill.
3d
held
trial
N.E.2d
power
courts have
except upon grounds
no
to dismiss
provided by statute.
This is
rule of law all the
districts
appellate
Thomas,
except
907, 322
the Fourth.
App.
24 Ill.
3d
N.E.2d 97
*3
Hoover,
v.
1975); People
(3d
25, 297
Dist.
12
App.
(2d
Ill.
3d
N.E.2d 400
Barksdale,
1973); People
v.
163,
Dist.
110 Ill. App.
(1st
2d
The Fourth District in 38 App. Ill. 3d 347 Silvеrstein, v. 430, N.E.2d People and the First in 19 Ill. App. District 3d 826, 309, 313 recognized N.E.2d the the authority” “inherent in trial court necessary, to insure that a defendant a fair trial and if receives to dismiss v. People authority by the The indictment. relied on the cоurt Endress, People Silverstein is v. 217, 106 Ill. 2d 26 App. 245 N.E.2d In Endress the State 1969). Dist. appealed an order the trial court suppressing physical robbery to an charge certain evidence related armed against holding Attorney two defendants and a court order the State’s by contempt refusing produce inspection the to the for order defendants. The court the upheld orders and stated:
“In imposing exercising the trial its inherent sanctions court 217, authоrity App. to insure defendants a fair trial.” 106 Ill. 2d the Endress did not involve the an indictment and in our dismissal of it the opinion was not sufficient on which to base rule of law stated in Silverstein. is, however, can be nonstatutory ground
There on which a dismissal
53
1,
Jones,
37,166
N.E.2d
as
2d
People
v.
19 Ill.
The rule is stated
based.
follows:
“ * * *
all the
unless
quashed
not be
will
[A]n
it
upon
was
testimony
the
incompetent
all
or
witnesses were
37, 41.)
2d
(19 Ill.
incompetent.
was
found
[Citations.]”
law, then his
by
disqualified
say that if a witness was
The court went on to
his
cоmpetent,
if a
was
witness
testimony
incompetent,
was
otherwise
not
trial court should
held that the
testimony
competent. The court
was
grand jury, stating
the
adequacy
into the
of the evidence before
inquire
following:
the administration
then is
it will further
question
“The
whether
indictments on
to
justice
permit
defendants
in the
promptness
favors
ground [incompetent
law
evidence].
harmony
with
when
dispatch of criminal business of
and
rights
the accused
protection
the effective
can
delay is
when an accused
public.
great
interests
an
cause the trial
assail
indictment on this
and
done in
grand jury,
all
as was
review
the evidence
a fair
the assurance of
procedure
nothing
this case. Such
adds
that the
trial to which the
are of
accused is entitled. We
competency
trial court
inquire
adequacy
should
into
grand jury.
the evidence before the
conclusion,
necessary
prоper,
In
we hold that it is neither
nor
indictment,
ruling upon a motion
consider
quash
37,
(19
43.)
2d
jury.”
evidence before the
Ill.
cert, denied,
Orr,
People
See also
v.
95, 139
212,
Ill.
353 U.S.
10
2d
N.E.2d
Southwood,
1290;
228,
People
v.
987, 1
1145, 77
L.
2d
S.
Ill. 2d
Ed.
Ct.
Derrico,
v.
41;
453,
N.E.2d
Ill.
that inadequate there was or incompetent evidence before the grand jury, resulting delay the great would be of indеed. The result such a rule would be that before on trial the merits a defendant always preliminary could insist on a kind of trial to determine the competency and adequacy grand of the evidence jury. before the This is rеquired by the Fifth Amendment. An indictment aby legally returned constituted grand and unbiased jury, like by face, if prosecutor, enough information drawn valid on its call to for trial of the charge on the merits. The Fifth Amendment requires nothing more. urges
Petitiоner that Court power this should exercise to its supervise the of justice administration federal courts and establish rule permitting a defendants to indictments on ground that they supported by adequate competent are not persuasive establishing evidence. No reasons are advanced for such a rule. It run history would counter to the whole institution, jury laymen which inquiries conduct their unfettered by technical rules. justice concept Nеither nor the a fair trial requires change. merits, a such In a trial on defendants are a bring entitled to strict designed observance all the rules entitled, however, about a fair verdict. Defendants are not ato rule result in dеlay nothing would interminable but add 359, 363-64, 100 a (350 assurance of fair trial.” U.S. L. Ed. 402-03,76 S. 406.) Ct. Costello is not court,
While binding this on we find its to be rationale persuasive.
Federal sitting in Illinois have that held indictments will be v. United States only dismissed if all incompetent. witnesses аre Tinkoff (7th 868; United States v. 1936), Cir. F.2d DiFronzo (7th 1965), Cir. F.2d 383. sufficiency
The issue of of evidence before a indict has been jurisdictions annotated in 59 A.L.R. majority follow rule that grand jury tending where there some evidence before the upon connеct the charged, accused with the lack the.offense quashing some essential element the offense is not a (Annot., (1929).) reported indictment. 59 A.L.R. case this annotation, Brady United States 1928), F.2d stands for if proposition quashed thаt indictment will be no evidence was before the It is the separate on element of the offense. this espoused the better rule is the one find the rationale as stated Costello jurisdictions. We be majority persuаsive opinions constitute further for our own support v. Moore. McAleer *5 dismissing circuit court foregoing reasons order For the proceedings. for further remanded the cause is is reversed and remanded. Reversed and
JONES, J., concurs. MORAN, dissenting: Mr. GEORGE J. JUSTICE whether in this case is upon to answer only are called question we absolutely no evidence where dismissal of an indictment warranted element of necessary on a presented has been inquire without generally I that a trial court is agree offense. if some presented sufficiency of the evidence into the element support each material been competent evidence has Howevеr, of an essential I believe when the accusation. case, absent, proper for the trial court entirely as in this it is allegation is expressed accordingly adopt the view I would dismiss the indictment. logical 1928), as the more Brady v. United F.2d 405 in this case. approach to be followed ILLINOIS, Plaintiff-Appellee,
THE PEOPLE OF THE STATE OF HEIL, Defendant-Appellant. STERLING Fifth No. 75-132 District May Opinion filed