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Criminal Procedure keyed to Kamisar
Illinois v. Somerville
Citation:
410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)Facts
Somerville (defendant) was indicted for theft. The day after the jury was impaneled and sworn in, before evidence was presented, the prosecutor realized the indictment was deficient because it did not allege that Somerville had the necessary intent to permanently deprive the owner of his property. Under Illinois law, the defect could not be waived by the defendant’s failure to object and could be asserted on appeal or in post-conviction proceedings to overturn the conviction. The trial court granted the State’s motion for a mistrial and the next day, the grand jury handed down a second indictment alleging the requisite intent. The court overruled Somerville’s claim of double jeopardy, and the case proceeded to trial.
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