dissenting:
I dissent. In People v. Fosdick, 36 Ill.2d 524, this court held that in each case it must be determined whether delay in the trial beyond the 120-day period was “occasioned by the defendant.” The court said, at pages 528-529: “In determining this question, the criterion in each case is whether the defendant’s acts in fact caused or contributed to the delay. In the varied fact situations that involve the 120-day rule, we have carefully examined the facts to prevent a ‘mockery of justice’ either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him. People v. Bagato, 27 Ill.2d 165.”
Here a circuit judge sitting in St. Clair County discharged the defendant, apparently having found that the defendant’s actions did not cause or contribute to the delay.
The majority, engaging in pure conjecture, states: “Nor is there apparent any explanation why the motion to disqualify judges Farmer and Gray was delayed until the day of trial when only they had entered earlier orders in the cases. Counsel either knew his client’s objections and failed to make the motion earlier, or defendant failed to convey his objections to counsel until the trial date. In either case, a delay resulted which was attributable to the defendant.” This would suppose that either of these named judges carried an individual docket and completely ignores the fact that in many counties in this State, including St. Clair, that practice is not followed, and cases are sent out to trial to whatever judge is then available.
As pointed out by the appellate court, so far as this record reflects, the motion for discovery, filed on October 6, 1971, may have been summarily denied and there is no reason to conclude that allowance of a motion for substitution of judges resulted in anything more than removal to another court room.
The provisions of section 103—5 of the Code of Criminal Procedure are designed to implement the constitutional right of an accused to a speedy trial and to that end are to be liberally construed. (People v. McAdrian, 52 Ill.2d 250; People v. Fosdick, 36 Ill.2d 524.) This, it appears to me, would mandate that the findings of the trial judge, possessed of knowledge of the conditions and circumstances in St. Clair County, should prevail over the conjectures of this court that “In any event, there would inevitably still have been some delay resulting from the motion.”
I would affirm the appellate and circuit courts.
MR. JUSTICE DAVIS joins in this dissent.