dissenting:
I must dissent from this holding, which could importantly affect criminal prosecutions throughout the State. I judge that the appellate court was correct in concluding that there was fundamental error in the prosecution “because the Attorney General, improperly and in excess of his authority, instituted the proceedings, presented the cause to the Grand Jury, and entirely conducted the prosecution of the case.” 53 Ill. App. 3d 774, 778.
The opinion of the majority states that where the State’s Attorney does not object, the Attorney General “may discharge all those powers of the State’s Attorney at all stages in a prosecution, including the preliminary proceedings such as presentations to a grand jury.” (72 Ill. 2d at 538-39.) It is obviously error to hinge the important determination as to whether the Attorney General, by the State’s Attorney’s mere failure to object, may assume and discharge the county officer’s powers. Section 4 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1973, ch. 14, par. 4) authorizes the Attorney General:
“To consult with and advise the several state’s attorneys in matters relating to the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution.”
Thus, the Attorney General, when in his judgment the interest of the People requires it, may assist in a prosecution. There is nothing in the record to show that the interest of the People here required the assistance of the, staff of the Attorney General or that he considered that it was required. There is no suggestion that the State’s Attorney was without personnel to conduct the prosecution or that his office had refused to initiate the prosecution. I wholly agree with the reasons given by the appellate court, in its discussion of the issue, that the above statutory provision does not empower the Attorney General to participate in a prosecution in the absence of any request to do so from the State’s Attorney, and that passivity, acquiescence, and mere failure to object by the State’s Attorney does not constitute a request for assistance. The correctness of the appellate court’s decision is underscored by the unsuccessful attempt made by the Attorney General to have the legislature amend section 4, which is referred to in the appellate court opinion (53 Ill. App. 3d 774, 784).
The rejected amendment would have authorized the Attorney General to prosecute for offenses involving the collection of taxes (an offense which was prosecuted here), and would have conferred on the Attorney General all of the powers of State’s Attorneys in criminal proceedings.
Also, the Attorney General conducted the entire prosecution here. There was not even a profession or claim that he was assisting the State’s Attorney. As the appellate court observed, the Attorney General, by his assistants, appeared before the grand jury and at trial unaccompanied by the State’s Attorney or any of the latter’s staff. On the first arraignment date, an assistant State’s Attorney said simply, “This is a matter presented by the Attorney General and the State has no information.” At the second arraignment another assistant State’s Attorney said, “This is the Attorney General’s case.” (53 Ill. App. 3d 774, 783.) While the Attorney General has the statutory authority to assist when the interest of the People requires it, here there was a substitution for the State’s Attorney, rather than his being assisted. There is nothing to show that the interest of the People required the assistance of the State officer, much less his entirely conducting the prosecution, or that the State’s Attorney requested assistance.
It is also highly important to point out that quite apart from the fact that the role played by the Attorney General in the trial here went beyond that of assisting in the prosecution, there is nothing in section 4 which gives him the power to step in before the trial has even begun by attending sessions of the grand jury and presenting evidence to it. Such action is clearly forbidden by section 112 — 6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(a)), which provides:
“Only the State’s Attorney, his reporter and any other person authorized by the court may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State’s Attorney to attend the sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.”
No court authorized any appearance by the Attorney General before the grand jury. I would also note that the foregoing provision is implemented by section 112 — 6(b) (Ill. Rev. Stat. 1973, ch. 38, par. 112 — 6(b)), of which no mention is made in the majority opinion, and which provides:
“Matters other than the deliberations and vote of any grand juror may be disclosed by the State’s Attorney solely in the performance of his duties. *** Any grand juror or officer of the court who discloses, other than to his attorney, matters occurring before the Grand Jury other than in accordance with the provisions of this sub-section is in contempt of court, subject to proceedings in accordance to law.”
The latter reference is obviously directed against those persons who may attend sessions of the grand jury, a class which does not include the Attorney General.
The secrecy of grand jury proceedings serves interests other than those of the Attorney General and the State’s Attorney, so that mere acquiescence by the latter in an unauthorized intrusion by the former could not make the intrusion lawful. See People v. French (1965), 61 Ill. App. 2d 439, 441-42.
Witnesses before the grand jury, persons who may be the subject of a presentation of evidence to the grand jury or an inquiry by it, and the general public interest are served by the secrecy of grand jury proceedings. This is a legislative design and it may not be set aside, unless, as the statute provides, the court authorizes persons other than those designated by the legislature to attend grand jury sessions. People v. Looney (1924), 314 Ill. 150, on which the majority mistakenly relies, simply did not consider this aspect of the problem. Indeed it could not, as that case was decided in 1924, and the provisions of section 112 — 6 were not enacted until 1963 (1963 Ill. Laws 2838, 2860).