People v. Arnold

¶1Supplemental Opinion On Rehearing

¶2In its petition for rehearing the prosection contends for the first time that the defendant’s petition for substitution of judge was properly denied because (1) in his petition defendant failed to allege the specific facts in support of his assertion that the trial judge was prejudiced, and (2) no affidavit accompanied the petition.

¶3 Defendant’s petition was filed on January 18, 1965, more than thirty days after the case was placed on the trial call. Therefore, the procedure with regard to his petition is governed by section 114^5 (c) of the Criminal Code of 1961 (Ill Rev Stats, 1965, ch 38, § 114-5 (c)), which provides in relevant part that:

¶4[A] ny defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

¶5According to the Committee Comments this section is to be read in pari materia with Illinois Revised Statutes, 1965, chapter 146, §§ 18-35. Section 18 of chapter 146, supra, provides that it is “cause” for a change of venue when a defendant fears “that he will not receive a fair and impartial trial in the court in which the case is pending, because the judge of the court is . . . prejudiced against him . . . .” In his petition defendant alleged under oath that he could not receive a fair and impartial trial because the trial judge was prejudiced.* That allegation is the statement of “cause.”

¶6 Section 114-5(c), supra, then provides that the trial judge shall conduct a hearing to determine the merits of the petition. Since no hearing was held, the allegations of the instant petition as to prejudice and the time when knowledge came to the defendant must be taken as true. While the record states that the defendant’s petition was denied after hearing from both counsel, according to the report of proceedings contained in the record the requisite hearing was never held. Therefore the petition for substitution of judge was improperly denied.

¶7The contention of the prosecution that no affidavit accompanied defendant’s petition is without merit since an examination of the record reveals that defendant filed a verified petition, which is a sufficient compliance with section 114-5 (c), supra.

¶8We adhere to our original opinion reversing the judgment of the trial court and remanding the cause for a new trial.

¶9Reversed and remanded with directions.