concurring:
I concur in the judgment of the court. I do not agree, however, with the majority’s conclusion that venue is a material fact in every prosecution and must be established at trial by proof beyond a reasonable doubt. The statutes at issue here are not unconstitutional, and our own doctrine regarding venue is not constitutionally compelled. Accordingly, I would enforce the provisions in our statutory law that require an accused to make, in advance of trial, any challenge to the county in which trial is being conducted.
Article I, section 8, of the Illinois Constitution grants to an accused the right "to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” (Ill. Const. 1970, art. I, § 8.) Earlier constitutions contained similar guarantees. (Ill. Const. 1870, art. II, § 9; Ill. Const. 1848, art. XIII, § 9; Ill. Const. 1818, art. VIII, § 9.) The constitution speaks in terms of vicinage, or the location from which the jury must be drawn, but the concepts of venue and vicinage are closely related. See 2 W. LaFave & J. Israel, Criminal Procedure § 16.1, at 334-35 (1984).
At an early point in our case law, venue became identified with jurisdiction. (See, e.g., Campbell v. People (1884), 109 Ill. 565, 570 ("Under the constitution and laws of this State, as at common law, the local jurisdiction of all offences is in the county where the offence is committed”).) Early cases also required that the evidence presented at trial affirmatively show that the charged offense was committed in the county in which the offense was alleged to have occurred. (Dougherty v. People (1886), 118 Ill. 160, 163; Jackson v. People (1866), 40 Ill. 405, 406; Rice v. People (1865), 38 Ill. 435, 436.) An allegation of the place of the offense was said to be a "material averment” (Moore v. People (1894), 150 Ill. 405, 407) or a "jurisdictional fact” (People v. Adams (1921), 300 Ill. 20, 24; People v. McIntosh (1909), 242 Ill. 602, 604) that the prosecution was required to show. A 1921 decision, People v. Kubulis (1921), 298 Ill. 523, 528, declared the State’s burden in establishing venue to be by proof beyond a reasonable doubt. Kubulis did not cite any authority for that proposition. The requirement of proof beyond a reasonable doubt was not questioned, however, and later decisions reaffirmed the rule. People v. Long (1950), 407 Ill. 210, 212-13; People v. Church (1937), 366 Ill. 149, 158; People v. Gregor (1935), 359 Ill. 402, 404; People v. Strook (1932), 347 Ill. 460, 465.
Under prior law, the jurisdiction of a trial court was "limited by its territorial boundaries.” (Weyrich v. People (1878), 89 Ill. 90, 94.) A court without venue therefore lacked jurisdiction. The identification of venue with jurisdiction explains why earlier decisions finding a failure of proof of venue would reverse and remand the cause for further proceedings rather than simply reverse the conviction outright without ordering a remand, as one would expect when there was inadequate proof of an element of the offense. The failure to establish venue would have rendered the initial decision a nullity, making possible a subsequent trial in a forum possessing jurisdiction over the matter. (See Campbell v. People (1884), 109 Ill. 565, 573.) Under this rule, venue was considered to be a jurisdictional prerequisite, and not an element of the offense. More recently, however, venue has virtually come to be treated in the same manner as an element of the offense, and the failure to establish venue has resulted in the outright reversal of the conviction. People v. McClellan (1977), 46 Ill. App. 3d 584.
Venue is no longer defined in jurisdictional terms, and our law now draws a clear distinction between the two concepts. (People v. Caruso (1987), 119 Ill. 2d 376, 390; People v. Goins (1988), 119 Ill. 2d 259, 264-65.) Accordingly, under current law, "The place of trial is not jurisdictional and may be waived by the defendant.” (People v. Ondrey (1976), 65 Ill. 2d 360, 363.) The contemporary view of venue thus stands in sharp contrast to former practice, as exemplified by People v. Powell (1933), 353 Ill. 582, 591, in which the court declared, "Venue is not a matter of form — it is a matter of substance. It is jurisdictional.”
Section 1 — 6(a) of the Criminal Code of 1961 states:
"Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law. All objections of improper place of trial are waived by a defendant unless made before trial.” (720 ILCS 5/1— 6(a) (West 1992).)
Other provisions specify where venue will lie for transitory and continuing offenses and for offenses in which venue would be proper in more than one place. 720 ILCS 5/1 — 6(b) through (r) (West 1992).
Section 114 — 1 of the Code of Criminal Procedure of 1963 provides, in pertinent part:
"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
^ if: 5|<
(6) The court in which the charge has been filed does not have jurisdiction;
(7) The county is an improper place of trial;
* * *
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” (725 ILCS 5/114 — • 1(a), (b) (West 1992).)
If necessary, an evidentiary hearing may be conducted prior to trial to resolve any disputed issues of fact raised by a motion to dismiss. (725 ILCS 5/114 — 1(d) (West 1992).) If venue is not proper, the judge may either dismiss the action outright or transfer the matter to an appropriate place of trial; the defendant may be charged anew with the same offense if the cause is dismissed for improper venue. 725 ILCS 5/114 — 1(e), (f) (West 1992).
Although our prior cases have at times characterized venue as a material averment of a charge, if not an essential element of an offense, to be established by proof beyond a reasonable doubt, due process does not require that venue be treated in that fashion. Because venue is not defined as an element of any offense in Illinois, there is no requirement under the Federal Constitution that the prosecution in a criminal case establish venue beyond a reasonable doubt. (See McMillan v. Pennsylvania (1986), 477 U.S. 79, 85-86, 91 L. Ed. 2d 67, 75-76, 106 S. Ct. 2411, 2415; In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1072-73.) Consistent with that view, courts of other States have concluded that venue is not an element of a charged offense and need not be established at trial by proof beyond a reasonable doubt. See, e.g., State v. Allen (Iowa 1980), 293 N.W.2d 16; State v. Lopez (1973), 84 N.M. 805, 508 P.2d 1292; State v. Cauble (Utah 1977), 563 P.2d 775.
Other statutory provisions reinforce the view that venue is not to be regarded as an element of an offense in Illinois. Section 111 — 3 of the Code of Criminal Procedure, concerning the requisites of a charging instrument, distinguishes the elements of the offense from the place of its commission. Thus, section 111 — 3(a)(3) requires that a charge set forth "the nature and elements of the offense,” while a separate provision, section 111 — 3(a)(4), requires that a charge state "the date and county of the offense as definitely as can be done.” (725 ILCS 5/111— 3(a)(3), (a)(4) (West 1992).) If venue is actually an element of the offense, and thus a matter controlled by section 111 — 3(a)(3), as the majority believes, then the separate reference in section 111 — 3(a)(4) to the location of the offense must be superfluous.
The requirement that venue be established by proof beyond a reasonable doubt is a judicially created construct that may be altered either by us or by the legislature. As can be seen, the driving force behind the evolution of this doctrine was the identification of venue with jurisdiction. Venue was viewed as a jurisdictional imperative, and it became the State’s burden to provide affirmative proof of it; the failure to establish venue meant that the trial court lacked jurisdiction over the matter. Because venue and jurisdiction are no longer synonymous, the reasons for the doctrine have disappeared.
The constitution itself is silent on what means are necessary to protect and effectuate a criminal defendant’s venue right. As one member of the court explained more than a century ago, in agreeing with the majority in a case that upheld the power of the legislature to enact statutes regarding venue in criminal cases and to prescribe measures for their enforcement:
"The right guaranteed to the defendant is.that of trial by an impartial jury of the county. Whether the burthen of showing that he has not been deprived of that right shall rest upon the People, wholly or only in part, or whether the burthen shall rest upon him to show that he has been deprived of that right, are questions with which the constitution does not deal. Having guaranteed the right, it leaves all questions of detail as to the mode of ascertaining when it shall have been violated, to the legislature, and manifestly, therefore, the question of where the burthen of proof, in this respect, shall in the first instance rest, is purely one of legislative policy.” Watt v. People (1888), 126 Ill. 11, 35-36 (Scholfield, J.).
One may question whether legislative authority over this subject is as broad as the preceding quote suggests. Nonetheless, I believe that the provisions found in section 1 — 6 of the Criminal Code and section 114 — 1 of the Code of Criminal Procedure are adequate to protect the constitutional right of an accused to have the matter tried in the county where the offense allegedly occurred. Because neither defendant in the two cases consolidated here made a timely challenge to the place in which his or her trial was being conducted, I would find, pursuant to statute, that both defendants have waived any challenge to the venue of the circuit court.
The majority, however, concludes that the provisions of the Criminal Code and Code of Criminal Procedure do not control the problem here, the State’s asserted failure to establish venue at trial. Citing our recent decision in People v. Hagan (1991), 145 Ill. 2d 287, 300, the majority asserts that venue "must be proved by the State beyond a reasonable doubt along with the other elements of an offense” (161 Ill. 2d at 341), suggesting, of course, that venue itself is an element of the offense. The majority concludes that venue must be established at trial by proof beyond a reasonable doubt and, without identifying the source of that requirement, finds that the waiver provisions of sections 1 — 6 and 114 — 1 are irrelevant here. The majority’s theory would seemingly leave to these statutes a relatively minor role: that of correcting improper designations of venue that are apparent on the face of the charging instrument. An examination of the authorities relied on by the majority, however, reveals that those cases have in essence manufactured two rights out of one.
In People v. McClellan (1977), 46 Ill. App. 3d 584, cited by the majority, the defendant was charged in Champaign County with the commission of several offenses there. The evidence presented at trial, however, showed that one of the crimes actually occurred in Cook County. On appeal the defendant challenged his conviction for that offense, arguing that the State did not prove a material averment in the indictment because it failed to establish the commission of the crime in the county in which he was tried. Relying on section 1 — 6 of the Criminal Code, the State argued that the defendant had waived this contention by failing to raise it prior to trial. The appellate court declined to find the issue waived:
"But the State mistakes defendant’s argument. As defendant states, there is no question of improper venue. Defendant has a constitutional right to trial in the county in which the offense is alleged to have been committed. (Ill. Const. 1970, art. I, § 8.) The indictment alleges that the offense occurred in Champaign County and trial was properly had there. There was no defect in the indictment. The problem here is a failure of proof.
The State’s argument can be phrased this way: Defendant has an obligation to raise, before trial, an objection to venue based on his belief that the State will be unable to prove venue as alleged. Merely to make the statement is to refute it. McClellan pleaded not guilty and is presumed to be innocent. He cannot be burdened with such an obligation. Accordingly, the judgment and sentence for attempt murder must be reversed.” McClellan, 46 Ill. App. 3d at 587.
This line of reasoning led the appellate court in People v. Carroll (1992), 260 Ill. App. 3d 319, also cited by the majority, to discern in the constitutional guarantee two separate aspects of venue:
"[The] substantive element of venue differs from the related and equally well-established procedural aspect of venue, which, in Illinois, means that although criminal cases are to be tried in the county where the offense was committed [citation], 'all objections of improper place of trial are waived by a defendant unless made before trial.’ (Ill. Rev. Stat. 1987, ch. 38, par. 1 — 6(a); People v. McClellan (1977), 46 Ill. App. 3d 584, 587, 360 N.E.2d 1225, 1227.) The former addresses 'a failure of proof,’ that is, whether the State has proved beyond a reasonable doubt that the defendant committed the offense in the county where he was tried [citations], while the latter guarantees that the trial takes place in the county where the indictment alleges that the offense was committed. [Citations].” People v. Carroll (1992), 260 Ill. App. 3d 319, 327.
The court in Carroll went on to describe "the substantive aspect of venue” as "a necessary element of an offense.” (Carroll, 260 Ill. App. 3d at 327.) Yet the distinction suggested by Carroll between the two types of venue is illusory rather than real, as the opinion’s subsequent discussion demonstrates. Carroll noted that the courts of this State "have consistently applied the provisions of [section 1 — 6] to determine questions regarding the substantive as well as the procedural aspect of venue,” and the court concluded, "in order to sufficiently establish venue in a particular county the State must prove beyond a reasonable doubt only that which is required by section 1 — 6.” (Carroll, 260 Ill. App. 3d at 328.) If, in fact, section 1 — 6 fully describes the State’s burden with respect to venue at trial, as the Carroll court believes, then one must ask why the remaining statutory provisions relevant here cannot be given full and equal effect, including the provisions mandating waiver of untimely venue objections.
The majority and its authorities — Carroll and McClellan — mistakenly assume that a pretrial hearing, such as that contemplated by section 114 — 1, is not sufficient to protect a defendant’s right to be tried in the county where the offense allegedly occurred and, further, that a substantive right of venue exists apart from the procedural guarantee protected by the statutes. Yet the source of this separate right is nowhere identified, and even Carroll allowed that the "substantive aspect of venue,” like its supposed procedural counterpart, is controlled by section 1 — 6 of the Criminal Code, with the added fillip that venue must be established beyond a reasonable doubt. At bottom, Carroll and McClellan are perhaps best understood as efforts to reconcile the judicial doctrine of venue with the legislative provisions addressing the same subject.
Assuredly, venue is an important right. It is, however, procedural rather than substantive, and one that the defendant may be required to invoke prior to trial. Sections 1 — 6 and 114 — 1 provide the tools necessary for a defendant to challenge the venue of the court in which the charge is being brought, and I agree with the State that an accused, armed with the information available to him through modern discovery procedures, may be held to the requirement of making that challenge in advance of trial. As I have noted, section 114 — 1 provides for an evidentiary hearing when disputed questions of fact exist. Although the statute does not specify what burden of proof governs the proceeding, having the State establish venue at that time by a preponderance of the evidence would be appropriate.
Requiring the defendant to object to venue is essentially no different from requiring a defendant to raise, before trial, other procedural guarantees of constitutional dimension, such as the right to a speedy trial, protected by the same provision of our constitution (Ill. Const. 1970, art. I, § 8). (See People v. Manley (1990), 196 Ill. App. 3d 153, 171-74 (Steigmann, J„ concurring in part and dissenting in part).) Nor does enforcing the venue right through these procedural means require an accused to strip himself of the presumption of innocence enjoyed by a defendant in a criminal case. One making a challenge to the venue of a criminal prosecution can turn to statements of witnesses, police reports, bills of particulars, and other forms of disclosure mandated by our criminal discovery rules, if the charging instrument itself fails to prompt the necessary objection.
The committee comments to section 1 — 6, cited by the majority, similarly fail to support the rule perpetuated here. The majority quotes a portion of the comments to the effect that the waiver provision found in section 1 — 6 "is not intended to change in any way the prosecution’s duty to allege the place where the offense was committed *** and to prove such allegations in the usual manner.” (720 ILCS Ann. 5/1 — 6, Committee Comments — 1961 (Smith-Hurd 1992).) As the remainder of the committee comments to section 1 — 6 demonstrates, however, the effect of the new statute was not as limited as the preceding quotation might suggest. Referring to the waiver provision of section 1 — 6(a), the comments go on to state:
"It is designed to prevent a defendant who knows that the place of trial is improperly alleged from saying nothing until his gamble on the verdict has lost and then raising the issue for the first time. This rule is now applicable in civil actions [citation]. It is contemplated that hearings on objection, [sic] to place of trial will be conducted in the same manner as in civil actions.” 720 ILCS Ann. 5/1 — 6, Committee Comments — 1961 (Smith-Hurd 1992).
In section 114 — 1 of the Code of Criminal Procedure of 1963, the legislature later specified the practice to be followed in making objections to venue. The committee comments to that statute explain:
"Subsection (a)(7) provides for a motion to dismiss in cases of improper venue. Substantive provisions will be found in Ill. Crim. Code of 1961, section 1 — 6. It should be noted that objections to venue if not made prior to trial are considered waived under that section and under section 114 — 1(b) of this Code. The place of trial should be distinguished from the problem of state criminal jurisdiction and the problem of the jurisdiction of particular courts. The place of trial is fixed by the Ill. Const, of 1870, Art. II, § 9, as '... the county or district in which the offense is alleged to have been committed.’ ” 725 ILCS Ann. 5/114 — 1, Committee Comments — 1963 (Smith-Hurd 1992).
Again, as the comments state, current law draws a sharp distinction between venue and jurisdiction. Through the provisions found in section 114 — 1, the treatment of venue in criminal cases is now more closely aligned with venue practice in civil cases. (See 735 ILCS 5/2 — 104(b) (West 1992) (objections to improper venue in civil action waived if not raised in timely manner); Horn v. Rincker (1981), 84 Ill. 2d 139, 145-46.) The rule espoused by the majority, however, will simply permit defendants to continue to make the gamble condemned in the 1961 committee comments, unencumbered by the sensible rule of waiver formulated by the legislature a generation ago.
Properly regarded, venue is a nonjurisdictional procedural right, a personal privilege that an accused may waive. (See Hagner v. United States (D.C. Cir. 1931), 54 F. 446, 449.) The legislature has provided the means of enforcing that right through the provisions of section 1 — 6 of the Criminal Code of 1961 and section 114 — 1 of the Code of Criminal Procedure of 1963, which together provide a mechanism for challenging venue in advance of trial. In declining to take a fresh look at an old rule, the majority perpetuates an obsolete practice and frustrates the legislature’s constitutionally sound intent to provide a pretrial determination of venue.
JUSTICE McMORROW joins in this concurrence.