People v. Pohl

• Decision Date: 09 April 1964
• Docket Number: Gen. No. 10524
• Citation: 197 N.E.2d 759,47 Ill.App.2d 232
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph POHL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 759

197 N.E.2d 759

47 Ill.App.2d 232

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joseph POHL, Defendant-Appellant.

Gen. No. 10524.

Appellate Court of Illinois, Fourth District.

April 9, 1964.

Paul E. Karlstrom, Champaign, for appellant.

Robert J. Waaler, State's Atty., Urbana (Andrew Stecyk, Jack Waaler, Asst. State's Attys., of counsel), for appellee.

SPIVEY, Justice.

Defendant, Joseph Pohl, was convicted in the County Court of Champaign County of driving a motor vehicle on a public highway while his operator's license was revoked, under the provisions of Chapter 6, Article 3, Section 6-303 of the Illinois Motor Vehicle Law (Ill.Rev.Stats. Chapter 95 1/2, Section 6-303). He was sentenced to the Champaign County jail for a period of seven days and ordered to pay the costs of prosecution.

On February 7, 1963, the State's Attorney of Champaign County, Illinois, filed an information charging the defendant, Pohl, with the aforesaid offense.

To this information the defendant filed a motion to dismiss alleging the charge was barred by virtue of Article 3, Section 3-4(b) of the Criminal Code of 1961 (Ill.Rev.Stats. Chapter 38, Section 3-4(b).

The motion to dismiss was denied by the Court and the cause heard on a stipulation of facts before the Court without a jury.

Briefly the stipulation provided that defendant's operator's license had been revoked by order of the Secretary of State on November 20, 1961, and had not been modified or changed prior to December 4, 1962. On December 13, 1962, the defendant was served with a summons to appear before a Justice of the Peace in Champaign, Illinois, to answer a charge of driving without a valid operator's license allegedly committed on December 4, 1962.

The defendant advised the State Police officer serving the summons that his operator's license had been revoked and that he had not reapplied for a license after the expiration of the one year period from the date of such revocation.

On December 19, 1962, when the defendant appeared before the Justice of the Peace he entered a plea of guilty to the offense of driving without a valid operator's license and was assessed a fine, which he paid. Prior to the entry of his plea before the Justice of the Peace he advised the Justice that his operator's license had been revoked and that he had not reapplied for a license after the expiration of the one year period from the date of such revocation.

Neither the State's Attorney of Champaign County nor any member of his staff was advised of the offense of driving without a valid operator's license prior to defendant's conviction.

The State's Attorney of Champaign County was on January 26, 1962, informed by the Secretary of State that said conviction occurred while the defendant's operator's license was revoked. The State's Attorney thereupon filed the information in the County Court of Champaign County charging the defendant with driving a motor vehicle on December 4, 1962, when his operator's license was revoked. This charge was based upon the same conduct for which the defendant had been convicted before the Justice of the Peace on December 19, 1962.

The sole question as posed by counsel for the defendant is whether or not the disclosure of the revocation of defendant's operator's license to the State Police officer prior to his conviction on December 19, 1962, was knowledge to a 'proper prosecuting officer' as contemplated by Article 3, Section 3-3 of the Criminal Code of 1961.

Article 3, Section 3-3 of the Criminal Code of 1961 provides as follows:

'(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

'(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.

'(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.'

The pertinent provisions of Section 3-4 of the Criminal Code of 1961 provides as follows:

'(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:

'(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began.'

The defendant in support of his theory for reversal has cited a number of cases to the effect that the primary object in construing a statute is to ascertain and give effect to the intention of the enacting legislative body, and that penal statutes are to be strictly construed in favor of the defendant so that their operation will not be extended beyond the clear import of the language used.

These general propositions of statutory construction are not questioned and we have given full weight to those well established principles.

Defendant further cites a number of authorities which have defined the words 'prosecution' and 'prosecute', including City of Champaign v. Hill, 29 Ill.App.2d 429, 173 N.E.2d 839.

In the Hill case the court, speaking through Mr. Justice Reynolds, states: 'Summing up the various constructions our courts and those of other jurisdictions have placed upon the words 'prosecute' and 'prosecution' no clear-cut definition can be reached'. The court then went on to analyze State of Illinois v. Froelich, 316 Ill. 77, 146 N.E. 733, and People ex rel. Rusch v. Jilovsky, 334 Ill. 536, 166 N.E. 108, and concluded that the word 'prosecution' in those cases would involve only the formal accusation of the offender by means of an information. In further discussing the case of Wall v. Chesapeake & Ohio Ry. Co., 290 Ill. 227, 125 N.E. 20, the court concluded that that case stood for the proposition that there was a separation between the institution of a suit and the prosecution of the suit.

We find little comfort in any of the cases defining the words 'prosecution' or 'prosecute', varied as they are, for in none of those cases has the expression been used as being definitive of the word 'officer'.

What constitutes a 'proper prosecuting officer' has not so far as the briefs disclose or as a result of our independent research ever been defined. Strangely enough we have been unable to bring to light even a definition of 'prosecuting officer'.

In approaching the question before us we must first of all determine what the General Assembly intended when they used the word 'officer' and then apply the descriptive words of 'proper' and 'prosecuting'. Article V, Section 24 of the Constitution of the State of Illinois of 1870, S.H.A. defines the word 'office' as follows: 'An office is a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. * * *'

In considering this section of the constitution, the Supreme Court in a landmark decision said, in Fergus v. Russel, 270 Ill. 304, 322, 110 N.E. 130, 'This definition contains two essential elements both of which must be present in determining any given position to be an office: (1) The position must be a public one, created either by the Constitution or by law; and (2) it must be a permanent position, with continuing duties. To determine whether the first element is present, we have but to look to our Constitution and our statutes to see whether the particular position under consideration has been created by the Constitution or by law. An office is created by law only as a result of an act passed for that purpose. The mere appropriation by the General Assembly of money for the payment of compensation to the incumbent of a specified position does not have the effect of creating an office or of giving such incumbent the character of an officer (People ex rel. v. McCullough, 254 Ill. 9, 98 N.E. 156), as an office cannot be created by an appropriation bill. To ascertain whether the second element is present, it is necessary to determine the character of the position. This is not determined by the method in which the occupant or holder of the position is selected,--whether by appointment or election. If the duties of the office are continuing and it is necessary to elect or appoint a successor to the several incumbents, then the second element is present, whether the incumbent be selected by appointment or by election, and whether the incumbent be appointed during the pleasure of the appointing power or be elected for a fixed term.'

It was said in Hall v. Cook County, 359 Ill. 528, 195 N.E. 54, "An office is a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished.' Mechem on Public Officers, in discussing the meaning of the term 'office' (par. 4), defines an office as follows: 'The most important characteristic which distinguishes an office from an employment or contract is, that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the...