Dissenting Opinion
STOUDER, P. J.I must respectfully disagree with the opinion of the majority of the court since I believe that the judgment of the trial court should be affirmed. At the outset it should be noted that this appeal was initiated by the People and only the People filed briefs and arguments and orally argued the appeal. In part the failure of the Defendant to respond on appeal may be due to the nature of the procedure involved, since regardless of the decision on appeal the Defendant may be required to defend against the offenses charged.
To reach the conclusion that no preliminary hearing is required in some cases, both the People and the majority opinion rely basically on section 109-3 (a) and section 109-1 (b) (3), the latter section providing that preliminary hearings shall be held “. . . unless the judge shall have jurisdiction to hear the offense.” To the extent that these sections provide or assume that there are or may be judges or courts with differing “jurisdictions” to hear offenses I believe that such sections are violative of the constitutional amendment, commonly referred to as the judicial amendment, being Article 6, adopted November 6, 1962, effective January 1, 1964. Section 9 of said article provides that “The Circuit Court shall have unlimited original jurisdiction of all justiciable matters. . . .” In providing for a single integrated trial court it was the intent of this amendment to abolish the distinctions theretofore existing in the jurisdictions of the several trial courts. That the single trial court might more effectively discharge its duties by establishing departments or branches does not mean that the jurisdiction of the circuit court may be divided, segmented or fragmented. The theory of a unified trial court is that each judge thereof shall have the same jurisdiction and that the assignability of matters or the departmentalizing of the affairs of the court relate to the effective administration of justice and not to jurisdiction. Section 628, chapter 37, Ill Rev Stats 1965, recognized this intent of the judicial amendment by providing, in dealing with matters assignable to magistrates, that improper assignment must be asserted by motion and if not so asserted it is deemed waived. Further such section provides that the judgment of the magistrate is not void or subject to collateral attack if the matter were improperly assigned. Clearly assignment or the assign-ability of matters is not a matter of “jurisdiction.” Other sections, relating to matters which may be heard by magistrates, are consistent with this proposition since they refer only to assignment to magistrates and do not refer to the “jurisdiction” of magistrates. A statute which provides or assumes that there are, may, or can be differing “jurisdictions” of judges of the circuit court, violates both the letter and spirit of the judicial amendment. In my opinion that part of the statute, which is the basis of the opinion of the majority, violates this principle and is unconstitutional. The sections under consideration are included in the Criminal Code of 1963, which revised and codified criminal law procedures. It had been under consideration by groups within and without the legislature for months or years and the consideration of these groups of the problems involved was not specifically directed toward the judicial amendment. Much attention was devoted to the codification and revision of the code before it could have been known whether the judicial amendment would be adopted. No doubt the language of this section could have resulted from an oversight or failure to consider it in relation to the judicial amendment.
Even if sections 109-1 (b)(3) and 109-3(a), chapter 38, Ill Rev Stats 1965, be deemed free of the constitutional infirmities discussed above, I do not agree with the conclusions of my colleagues particularly in view of the consequences logically resulting therefrom. How can it be said that the right of an alleged offender to a preliminary hearing should depend on whether he appears before one judge or another? Why should persons charged with the same offense in one event be entitled to a preliminary hearing and in another event not? My colleagues indicate the meaning of the sections is clear and unambiguous. Nevertheless “jurisdiction” is interpreted to mean the power or authority of the judge or court derived from assignment or assignability of matters which may be heard by the judge or court. Further my colleagues suggest that the meaning to be given the sections is both explained and supported by the flexibility of assignment of matters to magistrates. Indeed sections 624, 625, 626, chapter 37, Ill Rev Stats 1965, do permit wide flexibility in the assignment of matters to magistrates. No uniformity of assignment is required. Matters assignable to magistrates may differ from circuit to circuit, county to county or as between magistrates of the same county. Such flexibility of assignment in my opinion furnishes no adequate basis upon which the right to a preliminary hearing should depend but rather suggests the contrary. Suppose, for example, a magistrate is assigned preliminary hearings and non-jury matters but is not assigned hearings where a jury is required. Since it cannot be known whether a jury will be required at the time an alleged offender is en~ titled to a preliminary hearing whether the ultimate disposition is within the class of matters assigned to the magistrate is in fact unknown.
The majority opinion also indicates that the consequences of less serious offenses as contrasted with more serious offenses are such that a distinction based thereon, relative to a right of a preliminary hearing, is appropriate. In the first place the distinction created is not based on the seriousness of the offense charged and in the second place where the penalty may be incarceration the duration or place of confinement would appear to have little relationship to the principle that a person should not be required to answer or defend himself against baseless or unsubstantiated criminal charges. The havoc that may result to personal family or financial affairs when a person is required to answer criminal charges with the possible consequence of imprisonment is such that a person should not be required to do so in the absence of sufficient reason or probable cause. That the presentation of evidence of probable cause may be burdensome to the prosecution does not in and of itself warrant the conclusion that the ends of justice are served by a denial of a right thereto.
Nor can it be said that it is pointless to present evidence at a preliminary hearing to a judge who may later consider the same evidence, at least in part, upon the ultimate disposition of the case. Initially it should be noted that the rule would apply where the judge might be able to hear and determine the case on its merits. There is no requirement that he will do so or that he must do so. Furthermore the same reasoning would be equally applicable where a felony is charged and an indictment is required or where a warrant of arrest is sought. The same judge who conducted the preliminary proceedings might very well preside at the ultimate disposition of the case.
In summary I do not believe that so significant a right as that to a preliminary hearing could or should depend merely upon the authority derived from assignment of the judge to whom the matter is originally presented. The interpretations of the sections of the majority of the court would in fact preserve distinctions which the judicial amendment was designed to avoid.