In Re Vitale , 71 Ill. 2d 229 ( 1978 )

^*MR. JUSTICE DOOLEY

delivered the opinion of the court:

On November 20, 1974, an automobile operated by the minor respondent, John M. Vitale, struck two small children. One died almost immediately, and the other the following day. The investigating officer issued a traffic complaint charging respondent with failing to reduce speed to avoid an accident (Ill. Rev. Stat. 1973, ch. 9514, par. 11—601). On December 23, 1974, the traffic case was heard. Respondent pleaded guilty, was found guilty, and was fined.

On the following day, December 24, 1974, a petition for adjudication of respondent’s wardship was filed in the juvenile division of the circuit court of Cook County. The petition, signed by the same police officer who issued the traffic ticket, alleged respondent was delinquent in that on November 20, 1974, while recklessly driving an automobile, he committed involuntary manslaughter resulting in the death of the two minors.

Respondent subsequently moved to discharge, asserting the prosecution of the traffic charge barred the subsequent prosecution of the same offense under the compulsory joinder provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3—3(b)), and the double jeopardy and due process clauses of the Federal Constitution. U.S. Const., amends. V, XIV.

The circuit court dismissed the juvenile petition. The appellate court found that the involuntary manslaughter charge and failure to reduce speed charge were predicated on the same “act” within the meaning of section 3—3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3—3(b)). Accordingly, it affirmed the dismissal order (44 Ill. App. 3d 1030). We granted leave to appeal under our Rule 315 (58 Ill. 2d R. 315).

Does the traffic offense for which respondent was tried and convicted, failure to reduce speed to avoid an accident, prohibit a subsequent prosecution for the manslaughter offenses? In our discussion of this broad issue we shall consider our Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 1—1 et seq.), as well as the double jeopardy clause of the Federal Constitution.

Section 3—3 of the Criminal Code of 1961 relating to joinder of offenses states:

“(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.” (Ill. Rev. Stat. 1973, ch. 38, par. 3—3.)

So also section 3—4, having to do with the effect of a failure to comply with section 3—3, states:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, *** if such former prosecution:

(1) *** 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) ***.” Ill. Rev. Stat. 1973, ch. 38, par. 3-4.

The appellate court employed as a basis for its decision the definitions of “act” and “conduct” in the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 2—2, 2—4). An “act” includes “a failure or omission to take action,” and “conduct” is “an act or a series of acts, and the accompanying mental state.” The appellate court concluded the acts in both the offense of failure to reduce speed and the offense of involuntary manslaughter were identical, with the exception that in the manslaughter offense a death was involved. Both offenses, it continued, were within the jurisdiction of a single court, the juvenile division of the circuit court of Cook County (Ill. Rev. Stat. 1973, ch. 37, par. 702-2).

The appellate court was likewise of the opinion that the State’s Attorney’s office had knowledge of the deaths when the traffic charge was prosecuted. Thus all the requirements of section 3—3(b) were met so as to bar subsequent prosecution.

We believe there is a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter. The fifth amendment to the Constitution of the United States provides:

“*** nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.)

The fifth amendment applies to the States through the due process clause of the fourteenth amendment. Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.

It is well established that certain constitutional protections are available to juveniles. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) Prosecuting a minor in special juvenile adjudicatory proceedings places him in jeopardy within the meaning of the fifth amendment. Breed v. Jones (1975), 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779.

The common law has long recognized double jeopardy. In referring to prior acquittal and prior conviction, Blackstone observed that this principle “is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.” 4 W. Blackstone, Commentaries *335. See also 3 E. Coke, Institutes 212-13 (1797); J. Sigler, Double Jeopardy: The Development of a Legal & Social Policy 2-16 (1969).

In determining whether multiple actions are prosecutions for the same offense, the inquiry has historically been whether the same evidence will sustain the proof of each offense. Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L. Ed. 489, 490, 31 S. Ct. 421, 422.

In the recent case of Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, prosecution and punishment for joyriding — taking an automobile without the owner’s permission — prohibited prosecution and punishment for automobile theft, an offense which required proof of intent on the part of the thief to permanently deprive the owner of possession. We are told:

“The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ It has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law sec. 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the ‘same offence’ under the Double Jeopardy Clause.” (Emphasis added.) 432 U.S. 161, 164, 53 L. Ed. 2d 187, 193, 97 S. Ct. 2221, 2224-25.

So here the two separate statutory offenses of failing to reduce speed and involuntary manslaughter need not be identical, either in their basic ingredients or in their proof to be the “same” within the double jeopardy clause.

Any lesser offense is included in the greater offense for the purpose of double jeopardy. This was pronounced as long ago as 1889 in In re Nielsen (1889), 131 U.S. 176, 33 L. Ed. 118, 9 S. Ct. 672, where it was observed:

“[W] here *** a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” 131 U.S. 176, 188, 33 L. Ed. 118, 122, 9 S. Ct. 672, 676.

Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, exemplifies the meaning of the test to determine whether the two offenses are the same. Joyriding was a lesser included offense in automobile theft. The State, to prove theft, had to establish joyriding plus the requisite intent of the thief to permanently deprive the owner of possession. Nevertheless, the prior prosecution for joyriding barred prosecution for automobile theft.

Here it becomes important to examine the statutory definition of the crimes of involuntary manslaughter and failure to reduce speed.

Involuntary manslaughter was defined by statute at the time of the occurrence thus:

“(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.

(b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.

(c) Sentence.

(1) Involuntary manslaughter is a Class 3 felony.

(2) Reckless homicide is a Class 4 felony.” Ill. Rev. Stat. 1973, ch. 38, par. 9—3.

The issues in reckless homicide are: Did the defendant cause death by driving a motor vehicle? Did the defendant drive the motor vehicle recklessly? Did the defendant drive the motor vehicle in a manner likely to cause death or great bodily harm? Each of these has to be proved beyond a reasonable doubt. Illinois Pattern Jury Instructions, Criminal, No. 7.10 (1968).

Failure to reduce speed to avoid an accident is defined by statute as follows:

“(a) No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. ” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 95½, par. 11-601(a).

The statute imposes the duty upon all motorists to exercise ordinary care, to reduce speed, and to avoid colliding with “any person.”

To prove the charge of failing to reduce speed, the State has to prove that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person. Involuntary manslaughter with a motor vehicle, or reckless homicide, is a reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm (Ill. Rev. Stat. 1973, ch. 38, par. 9—3). “Recklessness” does not require an intent to kill. (See People v. Parr (1976), 35 Ill. App. 3d 539, 542; People v. Bembroy (1972), 4 Ill. App. 3d 522, 525.) It is a species of violation of duty. Ill. Rev. Stat. 1973, ch. 38, par. 4—6; People v. Potter (1955), 5 Ill. 2d 365, 368.

As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the “same” as the lesser offense included within it.

F ailing to reduce speed and involuntary manslaughter cannot be fragmented so as to create different offenses. “The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio (1977), 432 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227.

The sequence of the prosecution is immaterial. The conviction of the lesser precludes conviction of the greater, just as conviction of the greater precludes conviction of the lesser. (Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221; In re Nielsen (1889), 131 U.S. 176, 33 L. Ed. 118, 9 S. Ct. 672.) Here it is irrelevant of what offense, failing to reduce speed or involuntary manslaughter, respondent was first convicted.

Both offenses were against the same sovereign, the State of Illinois. The traffic court, as well as the juvenile court, were courts of this same sovereign. (See Waller v. Florida (1970), 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184; People v. Gray (1977), 69 Ill. 2d 44.) The trial and conviction in the traffic court barred subsequent action in the juvenile court of Cook County. The State could not place respondent on trial twice for the “same offense.”

Double jeopardy is a constitutional guarantee. It is a matter which cannot be left for State court determination. (Ashe v. Swenson (1970), 397 U.S. 436, 442-43, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) State legislatures are free to define crimes and fix punishments. Once the legislature has acted, however, the courts are prohibited by the due process and double jeopardy clauses from imposing more than one punishment for the same offense. Brown v. Ohio (1977), 432 U.S. 161, 165, 53 L. Ed. 2d 187, 193, 97 S. Ct. 2221, 2225.

For the reasons herein expressed, under the double jeopardy clause the conviction on the traffic charge of failure to reduce speed precluded the prosecution in a separate action for involuntary manslaughter.

Judgment affirmed.

* This opinion was prepared by the late Mr. Justice Dooley and was adopted and filed as the opinion of the court.