The defendant's motions of August 25, 1969, for a mental hearing, examination by a qualified psychiatrist and for withdrawal of existing counsel and the appointment of new counsel, likewise caused a delay chargeable to the defendant which again tolled the 120-day statute. See: People v. Faulisi, 34 Ill.2d 187, 191; People v. Barksdale, 110 Ill. App.2d 163. Under these circumstances, the trial court properly denied the oral motion for discharge which was made on August 25, 1969, and the written motion filed by the defendant's new counsel on September 25, 1969.
The State relies on a long line of cases which stand for the proposition that the trial court can only dismiss for one of the reasons enumerated in section 114-1 of the Criminal Code, or for a clear due process violation. See Ill. Rev. Stat. 1979, ch. 38, par. 114-1; People v. Shields (1979), 76 Ill.2d 543, 394 N.E.2d 1161, cert. denied (1980), 445 U.S. 917, 63 L.Ed.2d 602, 100 S.Ct. 1279 (witness sworn as part of preliminary proceeding; no testimony relating to facts of crime; no jury waiver); People v. Marbly (1980), 85 Ill. App.3d 935, 407 N.E.2d 721 (no witness sworn; no evidence heard); People v. Dellecarto (1978), 67 Ill. App.3d 490, 384 N.E.2d 902 (no witness sworn; no evidence heard); People v. Lipp (1978), 63 Ill. App.3d 1034, 380 N.E.2d 1007 (no witnesses sworn; no jury impaneled; no testimony); People v. Thomas (1975), 24 Ill. App.3d 907, 322 N.E.2d 97; People v. Abel (1974), 21 Ill. App.3d 314, 315 N.E.2d 136 (no witnesses sworn; no testimony heard); People v. Barksdale (1969), 110 Ill. App.2d 163, 249 N.E.2d 165; People v. Shick (1968), 101 Ill. App.2d 377, 241 N.E.2d 507. A trial judge's characterization of his disposition as an "acquittal" rather than a "dismissal" is not controlling on its appealability.
Accordingly, defendants' motion to dismiss the appeal is denied. Cf. People v. Mourning (4th Dist. 1976), 37 Ill. App.3d 945, 947, 347 N.E.2d 48, appeal denied, 63 Ill.2d 561; People v. Barksdale (1st Dist. 1969), 110 Ill. App.2d 163, 249 N.E.2d 165; People v. Byrnes (2d Dist. 1975), 34 Ill. App.3d 983, 341 N.E.2d 729. II.
This is the rule of law in all the appellate districts except the Fourth. People v. Thomas, 24 Ill. App.3d 907, 322 N.E.2d 97 (3d Dist. 1975); People v. Hoover, 12 Ill. App.3d 25, 297 N.E.2d 400 (2d Dist. 1973); People v. Barksdale, 110 Ill. App.2d 163, 249 N.E.2d 165 (1st Dist. 1969). The Fourth District in People v. Lawson, 38 Ill. App.3d 239, 347 N.E.2d 430, and the First District in People v. Silverstein, 19 Ill. App.3d 826, 313 N.E.2d 309, recognized the "inherent authority" in the trial court to insure that a defendant receives a fair trial and if necessary, to dismiss the indictment.
• 1-2 The sole issue here is whether the court on its own motion before trial could dismiss the charges for want of prosecution. In accord with People v. Guido, 11 Ill. App.3d 1067, 297 N.E.2d 18, People v. Hoover, 12 Ill. App.3d 25, 297 N.E.2d 400, People v. Barksdale, 110 Ill. App.2d 163, 249 N.E.2d 165, and People v. Shick, 101 Ill. App.2d 377, 243 N.E.2d 285, we hold that in the absence of one of the grounds set forth in section 114-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114-1), the action of the trial court was improper. Where the motion for a continuance has been properly denied the case should be called for trial, and if no evidence or insufficient evidence is presented by the People, then a judgment of acquittal may be entered by the court.
The only grounds authorizing the discharge of a defendant without trial are found in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114-1. In a most similar case, People v. Barksdale (1969), 110 Ill. App.2d 163, the trial court dismissed the criminal case for want of prosecution upon the defendant's motion. In that case the witnesses were non-available and the court specifically held that the trial court has no power to dismiss the indictment except on the grounds set forth in the Code of Criminal Procedure * * *.
) It is the contention of the State that the grounds listed in the statute are the exclusive grounds upon which a charge can be dismissed. While this court is cognizant of the cases of People v. Shick, 101 Ill. App.2d 377, 243 N.E.2d 285 (1968); People v. Barksdale, 110 Ill. App.2d 163, 249 N.E.2d 165 (1969) and People v. Long, 126 Ill. App.2d 103, 261 N.E.2d 437 (1970), which have all held that the only grounds upon which a defendant can be discharged without a trial are those contained in the statutory provision, none of those cases involved the unique and particular factual situation presented in the case at bar. • 7 A trial court has the inherent authority to insure that a defendant receives a fair trial.
The only grounds authorizing the discharge of a defendant without trial are found in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114-1. In a most similar case, People v. Barksdale (1969), 110 Ill. App.2d 163, the trial court dismissed the criminal case for want of prosecution upon the defendant's motion. In that case the witnesses were non-available and the court specifically held that the trial court has no power to dismiss the indictment except on the grounds set forth in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114-1.
[2] On the basis of this record, we hold that the defendant Ligue agreed to these continuances so that the 120-day rule found in Ill Rev Stats (1963), c 38, § 103-5 (a) began to run from the date to which the case was continued for the appointment of new counsel which would be October 11, 1965, in the instant case. People v. Kuczynski, 33 Ill.2d 412, 415, 211 N.E.2d 687, 689 (1965); People v. Barksdale, 110 Ill. App.2d 163, 166, 249 N.E.2d 165, 167 (1969). Although the record contains no apparent reason for the trial court's change of attitude after Ligue renewed his motion for substitution of counsel, the record is clear that Ligue sought this substitution and consented to the continuance to October 11, 1965. Since the defendant was tried within 120 days from October 11, 1965, the trial court properly denied his motion for discharge.