People v. Miller
| Decision Date | 08 February 1965 |
| Docket Number | Gen. No. 10573 |
| Citation | 55 Ill.App.2d 146,204 N.E.2d 305 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellant-Cross-Appellee, v. Edward MILLER, John Burris and Clifford Withers, Defendants-Appellees-Cross-Appellants. |
| Court | United States Appellate Court of Illinois |
Raymond L. Terrell, State's Atty., Springfield, for appellant.
Gillespie, Burke & Gillespie and Robert Weiner, Springfield, for appellees.
This case is heard upon appeal by the State, and cross-appeal by the defendants arising under the following circumstances:
On June 25, 1963, Indictment No. 2213-63 was returned charging the defendants with the rape of a fourteen year old girl. On arraignment the defendants pleaded not guilty. A jury trial was commenced on December 9, 1963, and on December 15, 1963, the trial court declared a mistrial for the reason that the jury was unable to agree and the jury was discharged. On the same date the court granted a motion of the state's attorney that the cause be set for jury trial on January 6, 1964.
On the 17th day of January, 1964, upon motion of the State and without notice to any defendants or their counsel, the above cause was dismissed by the court. On the same day the Sangmon County Grand Jury returned Indictment No. 87-64 consisting of six counts and jointly charging the same defendants with rape, indecent liberties with a child, and contributing to the sexual delinquency of a child, these charges stemming from the same alleged conduct as that which formed the basis of Indictment No. 2213-63. No facts in addition to the facts known by the prosecution at the time of the return of the original indictment were known by the prosecution at the time of the return of the second indictment. The State did not ask the grand jury returning the first indictment to indict for taking indecent liberties with a child or contributing to the sexual delinquency of a child.
On the 24th day of January, 1964, in Cause No. 87-64, the three defendants filed a motion to dismiss the new indictment. On April 1, 1964, Howard L. White, Associate Circuit Judge of Jersey County, Illinois, dismissed those counts of the indictment charging taking indecent liberties with a child and contributing to the sexual delinquency of a child, but denied the defendants' motion for dismissal as to the charge of rape.
The State appeals that trial court's allowance of defendants' motion to dismiss Counts III through VI charging the offenses of taking indecent liberties with a child and contributing to the sexual delinquency of a child. The defendants cross-appeal from the order of the court denying the motion to dismiss Counts I and II of said indictment.
The State contends that the dismissal of Counts III through VI of Indictment No. 87-64 upon the motion of the defendants applies a literal interpretation of Section 3-3 of the Criminal Code and that such interpretation founds and fosters technical rules in the prosecution of criminal cases. Moreover, it is urged that inasmuch as the defendants could properly again the tried upon Indictment No. 2213-63 following the mistrial, they suffered no prejudice and no hardship through piecemeal prosecution.
We are called upon the consider the intent of the Legislature in adopting the language of Article 3, Section 3, of the Criminal Code of 1961 (Ill.Rev.Stat.1961, ch. 38, sec. 3-3), which includes the following:
'(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.'
The Criminal Code of 1961 was adopted by the Legislature following a long period of study by eminent lawyers and legal scholars. The published comments regarding the various Articles and Paragraphs thereof, of those who drafted the legislation and presented it to the Legislature, deserve consideration in the interpretation of the intent contained in the Code.
The committee which drafted Article 3 adopted by the Legislature, in its comment states that the Article provides:
'* * * certain fundamental rights which have been established for the protection of a person accused of an offense. * * *'
This committee further states that Paragraph 3 of Article 3 deals with the "compulsory joinder' of offenses which have certain close inter-relationship.' This compulsory joinder is stated to be designed to provide a substantive protection of a defendant in those situations in which more than one offense is found to arise out of the same conduct or act, and the defense of double jeopardy is not available.
It is clear that the language of the Statute gives a greater protection to the defendant than that heretofore existing under the doctrine of former jeopardy and constitutes a major change in the law. (Bowman, The Illinois Criminal Code of 1961, 50 Ill.Bar Journal 39).
It is agreed that the original Indictment No. 2213-63 and the counts of the second Indictment No. 87-64 relate to the same act of the same parties at the same time and place, and that the several offenses charged resulted from an act of each defendant charged in identical language in each count. The State agrees that the offenses are within the jurisdiction of the same court and that all facts known to the state's attorney at the time of the second Indictment No. 87-64 were known to him at the time of the first Indictment No. 2213-63. The State further agrees that it would have failed to prosecute all offenses within the meaning of Section 3-3, Paragraph (b), so that there would be no compliance with this section if a second indictment alleging the offenses set out in Counts III through VI had been returned without first dismissing Indictment No. 2213-63.
We are commencing the administration of criminal law under a new code and we should administer it according to the obvious direction of its language. We believe it clear that the departure from the clear language of the Code would be the commencement of a structure of technical interpretation eroding the true purpose of the Criminal Code. We must conclude that adding the charges found in Counts III through VI of the second indictment would deprive the defendant of the protection provided in Article 3, Section 3, Paragraph (b) of the Criminal Code. (Ill.Rev.Stat.1961, ch. 38, sec. 3-3.)
The argument of the State that the defendants are not prejudiced by the adding of Counts III through VI in Indictment No. 87-64 since following the mistrial they would again be subject to trial upon Indictment No. 2213-63, is not relevant where the stated purpose of the Criminal Code is to provide substantive protection to a defendant where the defense of double jeopardy is unavailable.
Upon defendants' cross-appeal it is urged that the trial court erred in refusing to dismiss Counts I and II of Indictment No. 87-64, for the reason that the dismissal of Indictment No. 2213-63 without notice should be considered an acquittal, and that Indictment No. 87-64 is void and of no effect, and that a prosecution under the latter indictment would violate the State and Federal Constitutional provisions relating to double jeopardy and due process.
The issue raised must be considered within the language of Article 3, Section 4 of the Criminal Code, (Ill.Rev.Stat.1961, ch. 38, sec. 3-4):
'(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
* * *
* * *
'(3) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court.'
This section of the Code is again concerned with the fundamental rights of the persons charged and the providing of substantive protection of such rights.
The question is whether or not the dismissal of Indictment No. 2213-63, upon motion of the prosecution and without notice to the defendants, was an improper termination of the original prosecution within the language of the section.
The comments of those drafting the legislation relating to Section 3-4 state that, '[t]he rules of double or former jeopardy are stated in this section', and it appears that extended study was made to distinguish 'proper termination' which did not bar further prosecution from those 'improper terminations' which were sufficient to bar further prosecution.
Where the jury is unable to agree a mistrial results, and through necessity, another trial upon the indictment is not barred. People v. Thomas, 15 Ill.2d 344, p. 348, 155 N.E.2d 16; People v. Touhy, 361 Ill. 332, 197 N.E. 849. Such a termination of a trial by reason of necessity is deemed a 'proper termination'. Hence, upon the order of mistrial as to Indictment No. 2213-63, the defendants could have been again tried upon that indictment. In this case, however, the indictment was dismissed by the prosecution upon its own motion prior to the return of Indictment No. 87-64 without any showing of necessity, or the showing of any facts requiring such dismissal in furthering the ends of justice. People v. Thomas, 15 Ill.2d 344, p. 349, 155 N.E.2d 16.
Nothing in the record discloses that the prosecution was seeking to amend within the provisions of the Code of Criminal Procedure, Section 111-5 (Ill.Rev.Stat.1963, ch. 38, sec. 111-5).
The motion to dismiss in this instance seems...
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