Mr. JUSTICE STENGEL
delivered the opinion of the court:
On August 30,1977, the defendant Donald L. Deems was indicted by the Peoria County grand jury for the offense of theft of a Ford automobile having a value in excess of *150 which offense is alleged to have occurred on August 17, 1977. The defendant was arraigned on September 1,1977, and the trial set for November 7, 1977.
The offense charged was a violation of section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16—1(d)(1)), which provides that a person is guilty of theft if he:
“(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property * *
On the day set for trial, November 7, 1977, before Judge Iben, the State moved to dismiss the indictment with leave to reinstate, contending that subsequent investigations revealed that the facts would not support a conviction under section 16 — 1(d)(1). The court denied the motion to dismiss and stated the motion should have been made prior to the day set for trial. The State then requested a continuance which motion was also denied. The State advised the court that the correct charge of theft should have been brought under section 16 — 1(a) and that the State intended to correct the error by rewording and reindicting the defendant under the proper charge within a few days. The State explained the difficulty in this manner. The original charge was receiving stolen property under section 16 — 1(d)(1), and the new charge would be under section 16 — 1(a), exerting or obtaining unauthorized control over property of another. We believe it important to note that in the first indictment the owner of the stolen property was listed as American National Bank of Nashville while in the second indictment the property was owned by American National Bank and Trust Company of Chattanooga, Tennessee. Proceeding on the first indictment would have produced a fatal variance in proof of ownership as well as other facts contained in the charge.
The following exchange then took place:
“People: Well your Honor, this indictment is defective.
Court: Well, don’t worry if the indictment is defective. Defense: Defense would answer that we are ready for trial c * * and would the court deny the People’s Motion and call this matter for trial forthwith.”
The court persisted in its refusal to allow the State to dismiss or to permit a continuance and called the case for trial on the basis that the “defendant has a right to go to trial and a right to be found not guilty.”
The defendant was sworn as a witness after the State informed the court that the People were unready to proceed to trial and could not present any witnesses. Without hearing any evidence the court said, “Very well. The court will find the defendant not guilty.” Judge Iben then dismissed the indictment and apparently indicated that it was a judgment of acquittal.
A new indictment charging the defendant with the offense of theft under section 16 — 1(a) was issued by the Peoria County grand jury the next day, November 8,1977. On November 10,1977, Judge Iben recused himself, and the cause was assigned to Judge Stone for arraignment on that date.
After acknowledging receipt of the new indictment, the defendant moved for dismissal of the new charge on the ground that the proceeding before Judge Iben on November 7,1977, was a trial and thus that double jeopardy would attach. The court then dismissed the indictment of November 8, 1977, on the grounds of double jeopardy.
The State seeks to appeal from the denial of its motion to dismiss the first indictment, the denial of a continuance, the acquittal, and finally the dismissal of the second indictment on the grounds of double jeopardy. Defendant has filed a motion to dismiss the State’s appeal which this court ordered to be taken with the case.
Several issues are presented by this appeal. While the determinative issue is whether the ruling of the trial court was in fact an acquittal, we first must resolve the threshold issue of whether the court properly refused to grant the State’s motion to dismiss the original indictment. The only reason given for refusing the State’s motion was that it should have been filed earlier and hence was untimely.
We are troubled by the court’s ruling because there were no findings of prejudice and there remained over 30 days before the 120-day rule would expire. (See People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) According to the record, the State’s Attorney informed defense counsel of his intent to seek dismissal of the first indictment during the morning of November 7, 1977, but the motion was not brought to the judge’s attention until the case was called for trial and therefore was labeled untimely. Under these circumstances, and particularly when construing the authority to dismiss indictments which usually rests in the prosecuting attorney alone, the trial judge should have allowed the State’s motion to dismiss, and it was an abuse of discretion for the court not to have done so.
“The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.” United States v. Cowan (5th Cir. 1975), 524 F.2d 504, 513, cert. denied sub nom. Woodruff v. United States (1976), 425 U.S. 971, 48 L. Ed. 2d 795, 96 S. Ct. 2168.
This court’s decision in People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97, is cited by defendant. In Thomas both the State and the defendant requested a continuance and both motions were denied. The trial court, after calling a jury, dismissed the case “for want of prosecution” after the State refused to proceed with the voir dire. This court concluded that the trial court had no right to dismiss for want of prosecution, but made a statement on which the defendant relies: “Where the motion for a continuance has been properly denied the case should be called for trial, and if no evidence or insufficient evidence is presented by the People, then a judgment of acquittal may be entered by the Court.”
The defendant has failed to recognize that this court’s statement in Thomas is limited to a “properly” denied continuance. As we stated earlier, the record in the instant case clearly indicates an improper denial of the State’s motion to dismiss as well as its motion for a continuance. Since this was the first request for a continuance, and for only several days, it is evident that such an insignificant delay would not have prejudiced the defendant. We believe that the State’s request for dismissal or continuance was a reasonable request which was improperly denied. See the well-reasoned opinion of a similar set of facts in People v. Dellecarto (1978), 67 Ill. App.
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Mr. JUSTICE STENGEL
delivered the opinion of the court:
On August 30,1977, the defendant Donald L. Deems was indicted by the Peoria County grand jury for the offense of theft of a Ford automobile having a value in excess of *150 which offense is alleged to have occurred on August 17, 1977. The defendant was arraigned on September 1,1977, and the trial set for November 7, 1977.
The offense charged was a violation of section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16—1(d)(1)), which provides that a person is guilty of theft if he:
“(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property * *
On the day set for trial, November 7, 1977, before Judge Iben, the State moved to dismiss the indictment with leave to reinstate, contending that subsequent investigations revealed that the facts would not support a conviction under section 16 — 1(d)(1). The court denied the motion to dismiss and stated the motion should have been made prior to the day set for trial. The State then requested a continuance which motion was also denied. The State advised the court that the correct charge of theft should have been brought under section 16 — 1(a) and that the State intended to correct the error by rewording and reindicting the defendant under the proper charge within a few days. The State explained the difficulty in this manner. The original charge was receiving stolen property under section 16 — 1(d)(1), and the new charge would be under section 16 — 1(a), exerting or obtaining unauthorized control over property of another. We believe it important to note that in the first indictment the owner of the stolen property was listed as American National Bank of Nashville while in the second indictment the property was owned by American National Bank and Trust Company of Chattanooga, Tennessee. Proceeding on the first indictment would have produced a fatal variance in proof of ownership as well as other facts contained in the charge.
The following exchange then took place:
“People: Well your Honor, this indictment is defective.
Court: Well, don’t worry if the indictment is defective. Defense: Defense would answer that we are ready for trial c * * and would the court deny the People’s Motion and call this matter for trial forthwith.”
The court persisted in its refusal to allow the State to dismiss or to permit a continuance and called the case for trial on the basis that the “defendant has a right to go to trial and a right to be found not guilty.”
The defendant was sworn as a witness after the State informed the court that the People were unready to proceed to trial and could not present any witnesses. Without hearing any evidence the court said, “Very well. The court will find the defendant not guilty.” Judge Iben then dismissed the indictment and apparently indicated that it was a judgment of acquittal.
A new indictment charging the defendant with the offense of theft under section 16 — 1(a) was issued by the Peoria County grand jury the next day, November 8,1977. On November 10,1977, Judge Iben recused himself, and the cause was assigned to Judge Stone for arraignment on that date.
After acknowledging receipt of the new indictment, the defendant moved for dismissal of the new charge on the ground that the proceeding before Judge Iben on November 7,1977, was a trial and thus that double jeopardy would attach. The court then dismissed the indictment of November 8, 1977, on the grounds of double jeopardy.
The State seeks to appeal from the denial of its motion to dismiss the first indictment, the denial of a continuance, the acquittal, and finally the dismissal of the second indictment on the grounds of double jeopardy. Defendant has filed a motion to dismiss the State’s appeal which this court ordered to be taken with the case.
Several issues are presented by this appeal. While the determinative issue is whether the ruling of the trial court was in fact an acquittal, we first must resolve the threshold issue of whether the court properly refused to grant the State’s motion to dismiss the original indictment. The only reason given for refusing the State’s motion was that it should have been filed earlier and hence was untimely.
We are troubled by the court’s ruling because there were no findings of prejudice and there remained over 30 days before the 120-day rule would expire. (See People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.) According to the record, the State’s Attorney informed defense counsel of his intent to seek dismissal of the first indictment during the morning of November 7, 1977, but the motion was not brought to the judge’s attention until the case was called for trial and therefore was labeled untimely. Under these circumstances, and particularly when construing the authority to dismiss indictments which usually rests in the prosecuting attorney alone, the trial judge should have allowed the State’s motion to dismiss, and it was an abuse of discretion for the court not to have done so.
“The Executive remains the absolute judge of whether a prosecution should be initiated and the first and presumptively the best judge of whether a pending prosecution should be terminated.” United States v. Cowan (5th Cir. 1975), 524 F.2d 504, 513, cert. denied sub nom. Woodruff v. United States (1976), 425 U.S. 971, 48 L. Ed. 2d 795, 96 S. Ct. 2168.
This court’s decision in People v. Thomas (1975), 24 Ill. App. 3d 907, 322 N.E.2d 97, is cited by defendant. In Thomas both the State and the defendant requested a continuance and both motions were denied. The trial court, after calling a jury, dismissed the case “for want of prosecution” after the State refused to proceed with the voir dire. This court concluded that the trial court had no right to dismiss for want of prosecution, but made a statement on which the defendant relies: “Where the motion for a continuance has been properly denied the case should be called for trial, and if no evidence or insufficient evidence is presented by the People, then a judgment of acquittal may be entered by the Court.”
The defendant has failed to recognize that this court’s statement in Thomas is limited to a “properly” denied continuance. As we stated earlier, the record in the instant case clearly indicates an improper denial of the State’s motion to dismiss as well as its motion for a continuance. Since this was the first request for a continuance, and for only several days, it is evident that such an insignificant delay would not have prejudiced the defendant. We believe that the State’s request for dismissal or continuance was a reasonable request which was improperly denied. See the well-reasoned opinion of a similar set of facts in People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902. The defendant’s reliance on this court’s decision in City of Peoria v. Davis (1976), 39 Ill. App. 3d 557, 350 N.E.2d 531, is also distinguishable. In Davis, the trial court granted the defendant’s motion to suppress evidence and then the three defendants were sworn as witnesses. En Masse, each defendant stated that he was not guilty, and the trial court entered a judgment of acquittal. On appeal, after noting that the State had not claimed that the appeal was interlocutory from the order suppressing the evidence, we held that the trial court’s judgment was an acquittal after a hearing on the merits and therefore not appealable.
In the case sub judice, although the defendant was sworn as a witness, no testimony or evidence was received. Consequently, it was impossible for the trial court to make a finding on the merits. The dismissal of the indictment in the case before us came about by the request of the defendant and his demand for an immediate trial on a faulty indictment. The most recent case concerning the validity of a double-jeopardy claim involved People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, and Mr. Justice Underwood said:
“Of particular importance in this regard is whether the mistrial may fairly be said to have been attributable to defendant, for where a mistrial is declared upon defendant’s motion, a different analysis is applicable. The United States Supreme Court set out the standard in United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, as follows:
‘[W]here circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” (400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557.)
We believe there can be no doubt that the dismissal entered in the case at bar was the result requested by defendant.
Having concluded that the trial court erred when it refused to grant the State’s motion to dismiss, we next must consider whether the subsequent proceeding amounted to a judgment of acquittal. If defendant was in fact acquitted, then prosecution on the second indictment would constitute double jeopardy and we would be compelled to reverse. We note that the trial court examined no evidentiary matters between the parties, no issues of fact or law were determined, and neither party presented a smidgen of evidence to the court after the prosecution decided not to proceed on a faulty charge.
We believe the controlling decision is that of the United States Supreme Court in United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187, which involved a dismissal during trial of two counts of a three-count indictment because of prejudice from preindictment delay. In holding that the Government was not precluded from appealing the order dismissing the first two counts on the asserted ground that an appeal would offend double jeopardy clause, the court said:
‘[T]he trial judge’s characterization of his own action cannot control the classification of the action.’ * * * Rather, a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ Martin Linen, supra, 430 U.S., at 571, 97 S. Ct., at 1355.” 437 U.S. 82, 96-97, 57 L. Ed. 2d 65, 77-78, 98 S. Ct. 2187, 2196-97.
“Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ [Citations.] Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” Serfass v. United States (1975), 420 U.S. 377, 391-92, 43 L. Ed. 2d 265, 276, 95 S. Ct. 1055, 1064.
In Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066, where the issues closely resemble the instant case, the defendant was charged with theft in an indictment which failed to allege the defendant’s intent to permanentiy deprive the owner of his property. Following the impaneling and swearing of the jury, but prior to the presentation of any evidence, the State realized that the indictment was fatally defective. The trial court granted the People’s motion for a mistrial. The Illinois courts upheld the defendant’s conviction based upon a subsequent indictment, despite the defendant’s claim that he had been subjected to double jeopardy.
The Supreme Court determined that the defect in the original indictment was jurisdictional and could not be waived by the defendant’s failure to object and could be asserted in any post-conviction proceedings or on appeal to overturn the conviction. In affirming the conviction the court then said:
“If an error would make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.” 410 U.S. 458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070.
Likewise, in the instant case, the problem with the first indictment could not be cured by amendment, and a conviction based upon it would have meant certain reversal on appeal, because the proof could not have conformed to the allegations of the indictment. To order the trial to proceed, as the trial court did, could not possibly serve the “ends of public justice.” The only appropriate method of procedure was, as indicated above, dismissal of the indictment.
In the case before us the defendant successfully avoided a trial by persuading the trial court not to allow the People’s motion to dismiss a defective indictment, and then insisting that the trial court grant an acquittal on a basis which did not depend on guilt or innocence. He has not been “deprived” of his valued right to go to trial to determine his guilt or innocence; only the public has been deprived of its valued right to “one complete opportunity to convict those who have violated its laws.” Arizona v. Washington (1978), 434 U.S. 497, 509, 54 L. Ed. 2d 717, 730, 98 S. Ct. 824, 832.
Since the dismissal and apparent acquittal in the instant case was a pretrial matter without any evidence being presented, we believe the following comment in Scott, 437 U.S. 82, 100, 57 L. Ed. 2d 65, 80, 98 S. Ct. 2187, 2198, is of particular importance:
“No interest protected by the Double Jeopardy Clause is invaded when the Government is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in a manner favorable to the defendant.” (Emphasis added.)
Certainly a pretrial dismissal should not bar a subsequent prosecution when a midtrial dismissal is not protected under the Scott decision.
Defendant’s attempt to rely on section 3 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 3—4(b)(1)) is without merit. The statute provides:
“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began; ® (Emphasis added.)
As heretofore noted, the second indictment alleged a different owner of the automobile involved, requiring proof of a fact not required in the first indictment.
In People v. King (1974), 21 Ill. App. 3d 256, 314 N.E.2d 694, a quite similar set of facts appear. In that case, after charges against defendant for wilful failure to file income tax returns had been dismissed on grounds that the complaints failed to set forth any relationship of defendant with the employing corporation, the trial judge dismissed a subsequent prosecution of the defendant on the same charges on grounds of double jeopardy. On appeal the reviewing court held that the first dismissal for “technical insufficiency” was not tantamount to an acquittal. The court noted that the Committee Comments to section 3 — 4(a)(2) of the Criminal Code (Ill. Ann. Stat., ch. 38, par. 3—4(a)(2), Committee Comments, at 215 (Smith-Hurd 1972)) include the following:
“A dismissal of a case, sometimes called an acquittal not on the merits, based on variance or defective indictment or information * * * is not a bar to a subsequent prosecution.”
In 22 C.J.S. Criminal Law §246 (1961), it is stated:
“[T]he general rule is that, in order that jeopardy may attach, there must be a valid indictment # # e. So, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put accused in jeopardy and bar another prosecution.”
Defendant also relies on Sanabria v. United States (1978), 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170, where the court held a defendant once acquitted may not be again subjected to trial without violating the double jeopardy clause. Sanabria involved a charge of conducting a gambling business in violation of a Federal statute. At trial there was evidence that the defendants had been engaged in both horse betting and numbers betting. After the defendants had rested, the trial judge granted defendants’ motion to exclude all evidence of numbers betting and then entered a judgment of acquittal for a lack of evidence. The Government appealed, and Mr. Justice Marshall held that, while the numbers evidence was erroneously excluded, the judgment of acquittal produced thereby is final and unreviewable.
But the circumstances of that case are obviously a far cry from the present facts, where the State was refused a dismissal before trial while the defendant sought termination of his case on grounds unrelated to guilt or innocence. Again in Scott the court distinguished Sanabria, saying:
“This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.” 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2170, 2196.
Unlike the situation in Sanabria, the case before us is not one where a full presentation of evidence was before the court but one where the trial court resolved no factual elements and in fact it heard no testimony. In the absence of a factual determination, the case at bar cannot be governed by the ruling in Sanabria.
We conclude, therefore, that the second indictment of defendant did not violate the double jeopardy clause, and should not have been dismissed.
Defendant also claims that this court lacks jurisdiction to consider this appeal because the State is seeking to review a verdict of acquittal in violation of article VI, section 6 of the Illinois Constitution, which provides that “after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal.” (Ill. Const. 1970, art. VI, §6.) Since in the instant case, there was no hearing touching upon the merits of defendant’s innocence or guilt of the crime charged, that argument is without merit. Consequently, we have determined that the trial court’s action was not tantamount to an acquittal for double jeopardy purposes, and we hold that, likewise, for purposes of appeal, there was no acquittal but rather an improper dismissal for failure of the State to present evidence.
The judgment of the Circuit Court of Peoria County is therefore reversed and the cause remanded for proceedings consistent with this opinion.
Reversed and remanded.
BARRY, P. J., concurs.