150 N.E. 280 | Ill. | 1925
Lead Opinion
Plaintiff in error was indicted by the grand jury of Moultrie county under three indictments, one charging robbery, another conspiracy to rob, and the third, larceny in connection with the robbery of the Farmers State Bank at *597 Gays, Illinois. A motion was made to quash the indictments for robbery on which he was tried. The motion was overruled and plaintiff in error was convicted on the trial.
The evidence of identification and alibi, which was the only contested point in the case, shows it to have been sharply contradictory. Five or six witnesses, residents of Mattoon, were offered as character witnesses, each of whom testified to the good character of plaintiff in error as a law-abiding citizen.
Numerous errors are assigned in the cause. We are met on the threshold of the case, however, with the contention that owing to the fact that A.A. Brown, the State's attorney of Moultrie county, was not a licensed attorney, the indictment returned by the grand jury was void and should have been quashed on motion. Other counsel appeared in the trial of the cause and assisted therein, but the record shows that Brown conducted the examination of the witnesses before the grand jury, secured the attendance thereof by the issuance of subpoenas, aided in the drawing of the indictments and signed the same as State's attorney of Moultrie county. A motion was made to quash the indictment and to dismiss the proceeding on this and other grounds.
The question concerning the effect of participation in the securing of an indictment by one elected as State's attorney but not licensed to practice law has never been considered by this court. Section 22 of article 6 of our constitution provides as follows: "At the election for members of the General Assembly in the year of our Lord 1872, and every four years thereafter, there shall be elected a State's attorney in and for each county in lieu of the State's attorneys now provided by law, whose term of office shall be four years."
Section 5 of chapter 14 of our statutes (Smith's Stat. 1925, p. 168,) specifies the duties of a State's attorney as follows: "To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any *598 court of record in-his county, in which the people of the State or county may be concerned."
By section 1 of the act relating to attorneys and counselors (Smith's Stat. 1925, p. 164,) it is provided that no one shall be permitted to practice as an attorney in this State, or to commence, conduct or defend any action, suit or plaint in which he is not a party concerned, in the county or probate court or any court of record, either by using or subscribing his name or the name of any other person, without having previously obtained a license to practice.
It is contended on behalf of the People that as the constitution, which creates the office of State's attorney, and the statute providing for the election of that officer, do not require that the incumbent shall be licensed to practice law in this State, therefore want of license to practice law is not a bar to eligibility to that office, and that since he may act as State's attorney he may attend a grand jury, subpoena witnesses and examine them, and draw and sign indictments. Counsel citePeople v. McCormick,
By section 1 of the statute relating to attorneys and counselors, as we have seen, "no person shall be permitted *599
to practice as an attorney or counselor at law, or to commence, conduct or defend any action, suit or plaint, * * * without having previously obtained a license for that purpose," etc., and if the discharge of the duties of State's attorney is practicing law within the meaning of said section, the requirement as to eligibility must be held to apply to a State's attorney. A prosecuting attorney at common law was regarded as one of the judicial officers of the State, and the rule has been that within their respective districts or counties prosecuting attorneys are such officers though not officers of the State at large. (People v. Williams,
This court has had occasion to pass upon a similar question regarding the office of city attorney. In Baxter v. City ofVenice,
Counsel for the People argue that the above cases are not applicable here because the office of city attorney is not a constitutional office, but the argument is not impressive. The situations, so far as prescribed qualifications are concerned, are identical. None exist, either in the constitution or statutes, relating to either office; and, moreover, as we have seen, the statute governing the right to appear in courts of record and to represent persons other than the one appearing, limits that right to one who has a license to practice law. The language of the constitution providing for the election of a State's attorney must be construed in the light of the meaning of the term "State's attorney" as it is understood in the law. Both that term and the duties of the office as prescribed by statute imply that such officer be licensed to practice law.
Counsel for the People also cite cases which, they argue, support their contention that one not licensed to practice law may properly be before the grand jury, and his presence there will not vitiate an indictment unless prejudice to the accused is shown. The cases cited have to do with the presence of a stenographer in the grand jury room. The qualifications of one acting in the capacity of State's attorney in the presence of the grand jury did not there arise. A State's attorney appears before the grand jury during their investigations and conducts the examination of witnesses because of the responsibility resting upon him to enforce and vindicate the criminal law and to prosecute the cases as State's attorney. His appearance there is a part of his duties in connection with the prosecution of the case. Counsel have cited no case, and we are aware of none, holding that though a State's attorney must be licensed to practice *603 law, one not so licensed may properly be in the presence of the grand jury during their investigation and engage in the examination of witnesses.
It is also urged on behalf of the People that no prejudice or damage is here shown by reason of the appearance of Brown before the grand jury, and that before plaintiff in error will be entitled to have the indictment quashed on that ground he must show prejudice or damage. It is a fundamental element of a grand jury investigation that it be secret. To this end the law refuses to permit one to be in the presence of the grand jury during the investigation who is not legally and properly before it. It is well settled in this country that an indictment will be quashed, on motion, where the grand jury, in returning the same, were influenced and the defendant was prejudiced in his substantial rights by the presence of an unauthorized person in the grand jury room. In Collier v.State,
A grand jury is organized for the purpose of protecting citizens from unfounded accusation as well as investigating charges of crime and returning indictments thereon. By reason of the fact that the purpose of such protection may be largely forfeited where the investigations of the grand jury become known, the work of that body is surrounded by secrecy and vested with solemnity. Out of these views has arisen the rule that unauthorized persons may not be allowed to attend upon their investigations. It is apparent in the case at bar that the participation of Brown in the investigation of the grand jury, his presence and examination of witnesses, his preparation of the indictments and his advice incident to the law relating to indictments in cases of this character prejudiced the interests of the defendant. He did not appear merely as a clerk or stenographer but as a prosecuting attorney representing the People in the commencement of a proceeding by indictment for the purpose of prosecuting a breach of the law. It is evident that the indictment in this case was procured directly through the assistance of Brown, acting as State's attorney. *605 If one unauthorized to practice law or appear in courts of record may assist the grand jury in returning an indictment merely because he has been elected to the office of State's attorney, no reason is seen why one not so elected and not otherwise qualified may not do the same. What is said with reference to his authority to appear before the grand jury likewise applies to his participation on the trial of the cause or on appeal. The statute prohibiting the practice of law by one not licensed is to be observed in fact as well as in theory, and the fact that there may be associated in the trial of the case other persons actually licensed to practice law in nowise validates the participation of one not so authorized.
The circuit court erred in not sustaining the motion to quash the indictment.
Numerous other errors are assigned and argued, but as our conclusions concerning the lack of qualification of Brown to act as State's attorney and his work before the grand jury require that the indictment be quashed, it does not become necessary to consider further assignments of error.
The judgment of the circuit court is reversed.
Judgment reversed.
Dissenting Opinion
There is no showing made by plaintiff in error that Brown was in the grand jury room while the grand jury was considering the evidence upon which the indictment was returned, nor is there a showing that Brown did anything in the grand jury room that in any way prejudiced the rights of plaintiff in error. Therefore we cannot concur in the conclusion that the indictment should be quashed because an unauthorized person was present in the grand jury room while witnesses were being examined. People v. Martenbower, supra; People v. Arnold,supra. *606