ALLOY, J.
This cause originated as a result of the issuance of three traffic tickets citing Eugene Forest Miner for driving with a revoked driver’s license, for disobeying a stop sign, and for operating a motor vehicle while under the influence of intoxicating beverages. Defendant moved for a preliminary hearing. The People filed a verified complaint but refused to participate in a preliminary hearing. The court then dismissed the complaint as a result of the refusal of the People to conduct a preliminary hearing. On appeal in this cause, the People contend that the statute does not provide for a preliminary hearing where the judge presiding over such preliminary hearing has jurisdiction to try the offense charged. It is contended that a preliminary hearing is authorized only in those misdemeanor cases where the judge presiding over the preliminary hearing does not have jurisdiction to try the offense.
The record discloses that the defendant, Eugene Forest Miner, was brought before a magistrate of the Twelfth Judicial District of Will County for arraignment. He thereafter asked for and was granted a continuance so that he could obtain counsel. A few weeks later defendant appeared with his counsel who moved that People file a verified complaint and for a preliminary hearing. The verified complaint was filed but People objected to a preliminary hearing in writing. Such objections were overruled and the People thereupon refused to participate in a preliminary hearing. On defendant’s motion to dismiss, thereafter, for failure of the People to proceed with the preliminary hearing, the court dismissed the complaint. The People then perfected this appeal to test the court order so dismissing the complaint for failure to proceed with the preliminary hearing.
In Chapter 38, § 109-1 of 1965 Illinois Revised Statutes, it is provided as follows:
“(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
“ (b) The judge shall:
“(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
“ (2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code.
“(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
“(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.”
In Chapter 38, § 102-17, 1965 Illinois Revised Statutes, it is provided:
“ ‘Preliminary examination’ means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense.”
The charges against the defendant in this cause were for violation of chapter 95%, §§ 6-303,128, and 144,1965 Illinois Revised Statutes. Under section 6-303, there is a penalty upon conviction of imprisonment of not less than seven days nor more than one year and a fine may be imposed in addition thereto of not more than $1,000. Section 128 provides for a penalty upon conviction of a fine of not less than $1 nor more than $100 for a first conviction; for a second conviction within one year thereafter such person could be punished by a fine of not less than $25 nor more than $200; and upon a third or subsequent conviction within one year after the first conviction, such person could be punished by a fine of not less than $100 nor more than $300 (section 234). Section 144, referred to, provides for a penalty upon conviction of imprisonment for not less than two days nor more than one year or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. In a second or subsequent conviction, defendant could be punished by imprisonment for not less than 90 days nor more than one year and in the discretion of the court, be fined not more than $1,000.
It is noted that all of the charges against the defendant in this cause were for offenses classified as misdemeanors. The Magistrate Division of the Twelfth Judicial District, Will County, has jurisdiction to try the defendant on all of the cited charges (c 37, § 624, 1965 Ill Rev Stats). An administrative order adopted in such Circuit specifically vests the magistrate with such jurisdiction and authority. It is noted that subsection (b) of section 109-1, 1965 Illinois Revised Statutes, provides that the judge shall hold a preliminary hearing “in those cases where the judge is without jurisdiction to try the offense.” Under the provisions of section 109-3 of said chapter 38, in the event following a preliminary hearing there is found to be probable cause to believe the offense has been committed, the defendant is held over to answer to the court having jurisdiction of the offense.
The State contends that it is pointless for the court to make a finding that there is probable cause and then holding defendant over to itself and points out that this is not the intent of the court or the statutes. It is also contended that the terminology of the statute is clear and unambiguous, and that the defendant, under the state of facts as exist in the present case where the judge before whom he is arraigned has jurisdiction to try the offense, is not entitled to a preliminary hearing.
In considering the entire act, as we must in discerning the objective of the legislature (People v. Gibbs, 413 Ill 154, 108 NE2d 446), it becomes apparent that it was not the intent of the legislature to provide for a preliminary hearing in all cases. Obviously, if a defendant is charged with a felony, the basic reason for having a preliminary hearing becomes apparent. An inquiry as to whether there is a probability of guilt in order that a party may be held in custody or required to give bail in cases not coming within the jurisdiction of the magistrate, is a sound procedure (People v. Morris, 30 Ill2d 406, 197 NE2d 433). In cases involving a felony, this is all a magistrate is normally empowered to do, although in some cases lawyer-magistrates are given broader powers. Where misdemeanors are involved, however, a magistrate has authority to try and also dispose of the case in most instances.
Since a preliminary hearing is not one where the rights of defendant must be determined conclusively, and since defendant is not required to even enter a plea at such time (People v. Morris, supra), granting defendant a preliminary hearing to determine if he shall be held in custody or admitted to bail to await a future court appearance which may be considerably delayed, is obviously an appropriate procedure.
It should be observed that in many counties where lawyers may not be available to sit as magistrates, the powers of some magistrates in certain cases have been limited by statute or rule (1965 Ill Rev Stats, c 37, § 626).
Free access — add to your briefcase to read the full text and ask questions with AI
ALLOY, J.
This cause originated as a result of the issuance of three traffic tickets citing Eugene Forest Miner for driving with a revoked driver’s license, for disobeying a stop sign, and for operating a motor vehicle while under the influence of intoxicating beverages. Defendant moved for a preliminary hearing. The People filed a verified complaint but refused to participate in a preliminary hearing. The court then dismissed the complaint as a result of the refusal of the People to conduct a preliminary hearing. On appeal in this cause, the People contend that the statute does not provide for a preliminary hearing where the judge presiding over such preliminary hearing has jurisdiction to try the offense charged. It is contended that a preliminary hearing is authorized only in those misdemeanor cases where the judge presiding over the preliminary hearing does not have jurisdiction to try the offense.
The record discloses that the defendant, Eugene Forest Miner, was brought before a magistrate of the Twelfth Judicial District of Will County for arraignment. He thereafter asked for and was granted a continuance so that he could obtain counsel. A few weeks later defendant appeared with his counsel who moved that People file a verified complaint and for a preliminary hearing. The verified complaint was filed but People objected to a preliminary hearing in writing. Such objections were overruled and the People thereupon refused to participate in a preliminary hearing. On defendant’s motion to dismiss, thereafter, for failure of the People to proceed with the preliminary hearing, the court dismissed the complaint. The People then perfected this appeal to test the court order so dismissing the complaint for failure to proceed with the preliminary hearing.
In Chapter 38, § 109-1 of 1965 Illinois Revised Statutes, it is provided as follows:
“(a) A person arrested without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, and a charge shall be filed. A person arrested on a warrant shall be taken without unnecessary delay before the judge who issued the warrant or if he is absent or unable to act before the nearest or most accessible judge in the same county.
“ (b) The judge shall:
“(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
“ (2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code.
“(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
“(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.”
In Chapter 38, § 102-17, 1965 Illinois Revised Statutes, it is provided:
“ ‘Preliminary examination’ means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense.”
The charges against the defendant in this cause were for violation of chapter 95%, §§ 6-303,128, and 144,1965 Illinois Revised Statutes. Under section 6-303, there is a penalty upon conviction of imprisonment of not less than seven days nor more than one year and a fine may be imposed in addition thereto of not more than $1,000. Section 128 provides for a penalty upon conviction of a fine of not less than $1 nor more than $100 for a first conviction; for a second conviction within one year thereafter such person could be punished by a fine of not less than $25 nor more than $200; and upon a third or subsequent conviction within one year after the first conviction, such person could be punished by a fine of not less than $100 nor more than $300 (section 234). Section 144, referred to, provides for a penalty upon conviction of imprisonment for not less than two days nor more than one year or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. In a second or subsequent conviction, defendant could be punished by imprisonment for not less than 90 days nor more than one year and in the discretion of the court, be fined not more than $1,000.
It is noted that all of the charges against the defendant in this cause were for offenses classified as misdemeanors. The Magistrate Division of the Twelfth Judicial District, Will County, has jurisdiction to try the defendant on all of the cited charges (c 37, § 624, 1965 Ill Rev Stats). An administrative order adopted in such Circuit specifically vests the magistrate with such jurisdiction and authority. It is noted that subsection (b) of section 109-1, 1965 Illinois Revised Statutes, provides that the judge shall hold a preliminary hearing “in those cases where the judge is without jurisdiction to try the offense.” Under the provisions of section 109-3 of said chapter 38, in the event following a preliminary hearing there is found to be probable cause to believe the offense has been committed, the defendant is held over to answer to the court having jurisdiction of the offense.
The State contends that it is pointless for the court to make a finding that there is probable cause and then holding defendant over to itself and points out that this is not the intent of the court or the statutes. It is also contended that the terminology of the statute is clear and unambiguous, and that the defendant, under the state of facts as exist in the present case where the judge before whom he is arraigned has jurisdiction to try the offense, is not entitled to a preliminary hearing.
In considering the entire act, as we must in discerning the objective of the legislature (People v. Gibbs, 413 Ill 154, 108 NE2d 446), it becomes apparent that it was not the intent of the legislature to provide for a preliminary hearing in all cases. Obviously, if a defendant is charged with a felony, the basic reason for having a preliminary hearing becomes apparent. An inquiry as to whether there is a probability of guilt in order that a party may be held in custody or required to give bail in cases not coming within the jurisdiction of the magistrate, is a sound procedure (People v. Morris, 30 Ill2d 406, 197 NE2d 433). In cases involving a felony, this is all a magistrate is normally empowered to do, although in some cases lawyer-magistrates are given broader powers. Where misdemeanors are involved, however, a magistrate has authority to try and also dispose of the case in most instances.
Since a preliminary hearing is not one where the rights of defendant must be determined conclusively, and since defendant is not required to even enter a plea at such time (People v. Morris, supra), granting defendant a preliminary hearing to determine if he shall be held in custody or admitted to bail to await a future court appearance which may be considerably delayed, is obviously an appropriate procedure.
It should be observed that in many counties where lawyers may not be available to sit as magistrates, the powers of some magistrates in certain cases have been limited by statute or rule (1965 Ill Rev Stats, c 37, § 626). In such case, a preliminary hearing may be had because the matter is assignable to a magistrate who does not have power to hear and dispose of the case because he is a nonlawyer (see committee comments to §§ 109-1 and 109-3 by Professor Charles H. Bowman, Smith-Hurd Ill Rev Stats Annotated of chapter 38).
Apparently this is a case of first impression. The language of the act (chapter 38, § 109-1(3)) specifically provides that the judge “shall hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense.” The subsection is apparently an attempt to cover the wide variations as to power of some magistrates in regard to specific offenses. Some magistrates before whom a majority of the violaters are brought by the police in the first instance have limited jurisdiction in criminal cases in the sense of authority to hear and determine the cases. It is also pointed out that by local rules, some individual magistrates are assigned more restricted hearing and trial duties than others, especially with regard to night or day duties when a member of the State’s Attorney’s office may or may not be available.
The provision for preliminary hearing is one which emanates from the legislature and the intention of the legislature in this respect will control. The language is clear and unambiguous in that it provides that the preliminary hearing is required to be conducted only if the judge does not have “jurisdiction” to dispose of the case. Since the magistrate in the cause before us had jurisdiction to dispose of the case, it was not requisite that he conduct a preliminary hearing, and the action of the trial court in dismissing the complaint following the refusal of the State’s Attorney to participate in such preliminary hearing was erroneous and should be reversed.
We can see no basis for nullification of the legislative provision (1965 Ill Rev Stats, c 38, § 109.1) on the theoretical ground that the Circuit Court, as a result of the unified court system, now has jurisdiction which is broad enough to dispose of all cases. The legislative provision obviously refers only to the individual judge who is presiding and provides for a preliminary hearing only if he is without jurisdiction to try the offense. This is an obvious attempt to describe the power and capability of the individual judge with respect to the case under consideration and clearly indicates that if the particular judge has limited authority by assignment or rule, a preliminary hearing is required. Obviously if no objection is raised to the authority of the particular judge this right could be waived by a defendant. If the legislature had intended to require preliminary hearings in all cases it would have been very simple and easy for the legislature to specify that preliminary hearings would be had in all cases where defendant requests such hearings. The provision, however, is limited to those cases where the judge does not have authority to try the offense. To conclude, in view of such specification, that the language of this provision could be ignored, would be inconsistent with the Act and the normal standards of statutory construction. Nor do we believe that this section should be nullified because other statutory provisions dealing with court organization (1965 Ill Rev Stats, c 37, §§ 624, 626, 628) may not have contained consistent explanatory language.
The order of the Circuit Court of Will County will, therefore, be reversed with directions to such court to vacate the order of dismissal of the complaint and to reinstate such complaint and to proceed in this cause in accordance with the views expressed in this opinion.
Reversed and remanded with directions.
CORYN, J., concurs.