kansas, Delaware, Rhode Island, Tennessee, Texas, Kentucky, and Minnesota, this appointment is made by the governor. In Arizona, California, Loiusiana, Idaho, Montana, New Mexico, North Dakota and Vermont, the appointment is made by the remainedr of the court. The appointment is required to be from judges of the general trial court in Georgia, Arizona, Idaho, New Mexico, Montana, North Dakota and Vermont; from the judges of intermediate court of appeals in California, and from the judges of the intermediate court of appeals or the judges of the general trial courts in Louisiana. In Missouri and Mississippi, the parties themselves may make the appointment, but in case the parties cannot agree, the court appoints the judge ad litem in Missouri and the governor in Mississippi. 23 The statements made above relate to appointments in the highest state courts. A number of states also have constitutional provisions regarding the appointment of judges ad litem or pro tempore for the trial of particular cases. Some provide that the parties may agree upon an attorney at law for the purpose.22 Several provide for another method of choice if the parties cannot agree,.' and in Oklahoma in case the judge is disqualified and the parties cannot agree, a judge pro tempore is elected by the members of the bar present, at the request of either party. Under statutes in Indiana and Louisiana, the regular judge may in certain cases designate a lawyer to serve, and in South Carolina the governor may commission a lawyer for the purpose. Kentucky also has a statute permitting parties in certain cases to agree upon an attorney to hold court. Letters received from a number of states indicate that little use is made of provisions for ad litem trial judges. 24 22 California, Florida, Idaho, Montana, New Mexico, Utah, Washington. 23 Alabama, Mississippi. Texas. 24 The Tennessee constitution also authorizes a similar plan. VII. INDICTMENT AND INFORMATION. Constitutional and statutory provisions in Illinois. The constitution of 1818 (Art. VIII., Sec. 10) provided that "no person shall for any indictable offense be proceeded against criminally, by information, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger, by leave of the courts for oppression or misdemeanor in office." The constitution of 1848 (Art. XIII., Sec. 10) provided "no person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justices of the peace, or arising in the army or navy, or in the militia, when in actual service in time of war or public danger; provided, that justices of the peace shall try no person, except as a court of inquiry for any offense punishable with imprisonment or death, or fine above $100. The proposed constitution of 1862 contained the following provision: (Art. II, Sec. 11) "That all offenses, less than felony, and in which the punishment is by fine or imprisonment otherwise than in the penitentiary shall be tried summarily before a court authorized by law to try the same, upon information under oath, without presentment or indictment of a grand jury, saving to the defendant in all cases the right of appeal; and no person shall be held to answer for any higher criminal offense, unless on presentment or indictment of a grand jury, except in cases of impeachment, or in cases arising in the army or navy or in the militia when in actual service, in time of war or public danger." In the constitutional convention of 1869-70, an attempt was made to abolish the grand jury by providing that no grand jury should be appointed or empaneled in the circuit court, but that offenses should be prosecuted in such manner as might be provided by law. The attempt failed but the constitution of 1870 provides that the grand jury may be abolished by law in all cases. Article II., Section 8, of the constitution of 1870 provides: "No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in service in time of war or public danger; Provided, that the grand jury may be abolished by law in all cases." The general assembly has not exercised its power to abolish the grand jury. An indictment by a grand jury is therefore necessary 1 Debates and Proceedings, Constitutional Convention, 1869-70, p. 1439. in order to start prosecutions for all crimes except where the punishment is by fine or imprisonment otherwise than in the penitentiary. The words "except in cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary" has been construed to mean except in cases where the punishment is by fine or imprisonment otherwise than in the penitentiary, or both. Hence a prosecution for a crime punishable by both fine and imprisonment in jail may be started by information.2 3 The supreme court in 1910 held that petit larceny could be prosecuted only by indictment since offenders were deprived of civil rights, which was an additional penalty to fine or imprisonment otherwise than in the penitentiary. This decision operated to deprive the municipal court of Chicago of jurisdiction over petit larceny cases, inasmuch as the statutory jurisdiction of this court does not extend to indictable offenses. However, legislation of 1911 removed petit larceny from the list of infamous crimes, and makes it possible to prosecute such an offense on information. At common law the grand jury must be composed of not less than twelve nor more than twenty-three, and twelve must concur to find a true bill. The statutes of Illinois provide that twenty-three shall constitute a full panel but that sixteen may transact business. To render a true bill twelve must concur. To what extent the constitution limits the power of the general assembly to fix the number of grand jurors has not been decided in Illinois. In Wisconsin, under a similar constitutional provision relating to indictments by a grand jury, it was held that the general assembly could fix the number constituting the grand jury at any number between twelve and twenty-three, and that a statute providing that no more than seventeen or less than fifteen persons shall be sworn upon the grand jury was valid. The Wisconsin court apparently took the view that the constitutional provision preserved to the accused the right to be indicted by not less than twelve nor more than twenty-three. In Florida, under a constitutional provision similar to those of Illinois and Wisconsin, it was held that the constitution contemplated a grand jury substantially as it existed at common law, and that a statute fixing the number of grand jurors at twelve was valid, but that a portion of the statute permitting indictment by concurrence of eight grand jurors was in conflict with the constitutional guarantee. It is probable, therefore, that the general assembly in Illinois has no constitutional power to fix the number of grand jurors at less than twelve or more than twenty-three, or to provide that less than twelve may concur to find an indictment, but that it may fix the number constituting a grand jury at any number between twelve and twenty-three. The circuit court has general criminal jurisdiction, but by statute all criminal offenses cognizable in this court are prosecuted by indict 2 People v Glowacki, 236 Ill. 612 (1908). People v. Russell, 245 111. 268 (1910). Hurd's Revised Statutes, Chap. 78, Secs. 16, 17. Brucker v State, 16 Wis. 355 (1863). English v The State, 31 Fla. 340 (1893). ments, even though the offenses may be punishable by fine or by imprisonment otherwise than in the penitentiary." In offenses over which justices of the peace have jurisdiction and in cases before the municipal court of Chicago, in which the punishment is by fine only, prosecution may be begun by affidavit of any competent person.s Criminal cases cognizable in the county court and those cognizable in the municipal court (other than the ones just referred to) must be prosecuted by information. The information may be by the state's attorney, attorney general, or any other person, but when it is by any other person, the court must satisfy itself that there is probable cause for filing the information." An information must charge the accused positively with the commission of an offense, and it is not sufficient to make such charge on information and belief.10 The information must state the offense charged, with the same certainty that is required in an indictment, and the proceedings on it are substantially the same as on an indictment in the circuit court. Cases started by indictment in the circuit court may be transferred to the county court for trial; and cases started in the criminal court of Cook County may be transferred to the municipal court of Chicago for trial, but in such a case the indictment must allege that the case arose within the territorial limits of the city of Chicago.11 Proceedings in commitment and indictment. When an indictable crime has been committed any justice of the peace or judge of a court of record has authority to issue a warrant upon a proper complaint. When a complaint is made the judge or justice of the peace must examine on oath the complainant, reduce the complaint to writing and cause it to be subscribed and sworn to by the complainant. The justice of the peace or judge then may issue a warrant requiring that the accused be brought before the justice or judge issuing the warrant, or in his absence before any other justice or judge in the county." Upon arrest the accused is brought before the judge or justice for a hearing. The examining magistrate hears evidence both for and against the accused,13 in the presence of the party charged. If it appears that an offense has been committed and there is probable cause to believe the prisoner is guilty, he is held to await action by the grand jury. The municipal court of Chicago acts as an examining and committing body within the limits of that city.15 An indictment by the grand jury is necessary under the statute before a person held to trial in the circuit court can be tried; and is required by the constitution, except where the punishment is by fine or Hurd's Revised Statutes, Chap. 38, Sec. 394. 11 Miller v People, 230 11. 65 (1907). 12 Hurd's Revised Statutes. Chap. 38, Secs. 347-349. 18 Hurd's Revised Statutes, Chap. 38, Sec. 360. 14 Hurd's Revised Statutes, Chap. 38, Sec. 363. Hurd's Revised Statutes, Chap. 37, Sec. 313c. Chap. 37, Sec. 290. imprisonment, otherwise than in the penitentiary. The grand jury may return an indictment where there has been no arrest or preliminary examination. The court may instruct the grand jury to inquire into crimes or the state's attorney may present bills to the grand jury to act upon. The court instructs the grand jury in open court, after which they retire to their room to consider such matters as may be brought before them. It is the duty of the state's attorney to prepare and submit to the grand jury for their action bills of indictment against persons he may deem to be offenders, who have not had preliminary examination, as well as against those who have been held upon preliminary examinations. The grand jury, may, however, act upon matters which are not presented to it by the court or state's attorney. The grand jury has authority to summon witnesses. The foreman of the grand jury has power to swear or affirm the witnesses. The grand jury can hear only the witnesses on behalf of the people.16 The indictments must be returned in open court or the trial is improper.17 The deliberations of the grand jury are required to be secret. One witness may not be present during the examination of another.18 The state's attorney may be present before the grand jury to interrogate witnesses, to draw such bills as the jurors are prepared to find, and to give such general instructions as they may require; he is not to influence or direct them in respect to their findings; nor ought he to be present when they are deliberating upon the evidence, or when their vote is taken.19 Formal requisites of the indictment. The statutes of Illinois provide that "every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.20 The indictment must, however, set forth all of the elements of the crime, and allege with completeness the state's cause of action, and must be certain.21 An indictment for rape which failed to state that the person raped was not the wife of the accused, would be bad.22 An indictment will be held bad for want of certainty if it fails to set out a literal copy or aver that the copy set out is a literal copy of an instrument alleged to be forged,23 if it fails to negative a statutory exception, or if it fails to specify the coins or bills that were the subject of a pecuniary larceny.25 24 16 Hurd's Revised Statutes, Chap. 38, Sec. 406. 17 People v Dennis, 246 Ill. 559 (1910). 18 People v Arnold, 248 Ill. 169 (1911). 19 Gitchell v The People, 146 Ill. 175, 187 (1893). See also Feople v Hartenbower, 283 Ill. 591 (1918). 20 Hurd's Revised Statutes, Chap. 38, Sec. 408. 21 Millar, Robert W., Reform of Criminal Pleading, Ill. Bar Assn., Proceedings, 1917, p. 393. 22 Hurd's Revised Statutes, Chap. 38, Sec. 237. 23 People v Tilden, 242 Ill. 536 (1909). 24 Lequat v People. 11 Ill. 330 (1849). 25 People v Hunt, 251 Ill. 446 (1911). |