delivered the opinion of the court:
Thе defendant, Fénix Shields, was indicted for the offenses of aggravated battery and attempted murder, alleged to have been committed on May 25, 1976, whеn the defendant stabbed his brother-in-law with a knife. After certain proceedings in the circuit court of Cook County, the trial judge ordered the indictment dismissеd. On appeal, the State contended that the dismissal was improper because it was not based upon permissible statutory grounds. (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 1.) The appellate court, with one dissent, affirmed. (
Defendant concedes that thе trial judge improperly dismissed the indictment, that there was no statutory basis for the dismissal, and that the appellate court erred in holding that the dismissal was necessary to preserve the defendant’s right to a prompt trial. Nevertheless, the defendant requests that we affirm the judgment of the appellate court for reasons not advanced in that court’s opinion. He maintains that a reversal would place him in double jeopardy, in violation of both the Illinois and Federal constitutions (Ill. Const. 1970, art. I, sec. 10; U.S. Const., amends. V, XIV) and the statutory bar against prosecution (Ill. Rev. Stat. 1975, ch. 38, par. 3 — 4(a)(3)).
A precise description of the procedural context in which the indictment was dismissed is necessary for an understanding of the defendant’s doublе jeopardy claim. The defendant was arraigned on June 30, 1976, at which time he pleaded not guilty. No jury waiver was entered. Discovery proceeded routinely. The case was continued four times: twice on the defendant’s motion, once on the State’s motion, and once by agreеment.
At the commencement of proceedings on December 2, 1976, defense counsel informed the judge that the complainant (defendаnt’s brother-in-law) had telephoned him the day before, indicating that he would like the charges dropped. The defense counsel began to mеntion a hospital bill when the judge inquired if the defense counsel was suggesting that the State nol-pros the charges. The defense counsel responded that he was referring either to a nolle prosequi or to a dismissal of the case. The judge stated that a conference would havе to be held before he would permit the State to enter a nolle prosequi. Immediately thereafter, the judge had the defendant plaсed under oath and advised him that, although the defendant would not have to accept the result of the conference, he would no longеr be entitled to move for a substitution of judges.
Following a short recess, the judge and the defense counsel discussed a monetary settlement regarding the reimbursement of the complainant for his hospital expenses. After another recess and a series of discussions held off the record, the judge directed that the case proceed to trial. When the State responded that it was not ready for trial, the judge dismissed the casе. The State immediately sought to establish, for the record, its position that its witnesses were not present and that it was not answering ready for trial. The judge, disputing the State’s position, ordered the complainant to be placed under oath. Over the State’s objection, the complainаnt stated his name, that he was ready for trial and that he “would rather get it over with.” After the prosecutor restated his position for the record, thе judge reproached the State for its unwillingness to dispose of the matter in accordance with the wishes of the complainant, and reiterated that the case was dismissed. The proceeding concluded with the State noting for the record that no evidence had been heаrd.
The protections against double jeopardy are triggered only after an individual has been subjected to the hazards of trial and possiblе conviction. In criminal proceedings — whether the trier of fact is a jury or a judge — “courts have found it useful to define a point *** at which the cоnstitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’ ” (Serfass v. United States (1975),
The record herein plainly indicates that the judge dismissed the case, albeit erroneously, even before he had the complaining witness placed under oath. Apparently believing that thе State was callously prosecuting such a case, and knowing that the State was neither ready nor willing to proceed, the judge directed thаt the case proceed to trial, and then dismissed the case when the State objected. Obviously, the trial had not commenced. The defense counsel, in oral argument in this court, concedes that jeopardy had not attached at that point, but maintains that the judge did not ultimately dismiss thе case until after the State had argued against dismissal and after the complaining witness had been sworn. We disagree. Our reading of the record indicates that, at the point to which defense counsel refers, the judge was merely repeating, at the State’s behest, the disposition of the matter.
Were we to agree, arguendo, with defendant, that the case was not dismissed until the culmination of the proceedings on December 2, wе would still hold that jeopardy had not yet attached. Proceedings preliminary to trial do not constitute jeopardy. (People v. Webb (1968),
For the reasons stated, we reverse the judgments of the appellate and circuit courts and remand the cause to the circuit court of Cook County for further proceedings.
Judgments reversed; cause remanded.