People v. Gray

MR. JUSTICE DOOLEY

delivered the opinion of the court:

Here the sole issue is whether the constitutional guarantees against double jeopardy prohibit criminal prosecution for aggravated battery and attempted murder after a finding and punishment for indirect criminal contempt of court based upon the same conduct.

Defendant, Robert Gray, struck his wife with a gun and then shot her. This violated a protective order in a divorce proceeding enjoining Gray from striking or molesting his wife.

The trial judge in the divorce case conducted a hearing on the wife’s emergency petition that Gray be held in contempt of court for assaulting and shooting her. There was a finding of wilful contempt of court, and Gray was sentenced to six months in Cook County jail.

Subsequently Gray was indicted for aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4) and the attempted murder (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4) of his wife based on the same conduct. His motion to dismiss on double jeopardy grounds was denied. He was convicted of aggravated battery and sentenced to 1 to 3 years.

On appeal, the Appellate Court, First District, found Gray had been placed twice in jeopardy for the same offense and reversed the criminal conviction. (36 Ill. App. 3d 720.) We granted the State’s petition for leave to appeal under Rule 315 (58 Ill. 2d R. 315).

The pivotal question is whether Gray’s offense of criminal contempt and his offense of aggravated battery constitute the same offense for purposes of the double jeopardy provision of the Illinois or the United States constitutions.

Both the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution of 1970 protect persons from being placed twice in jeopardy for the same offense. The fifth amendment to the Constitution of the United States provides:

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

Article I, section 10, of the Illinois Constitution states:

“No person shall *** be twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, sec. 10.)

The fifth amendment, with or without any provision in the Illinois Constitution, is controlling. It 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.

The concept of double jeopardy has long been a part of the common law. Blackstone employed the term “jeopardy” in describing the underlying principle of the pleas of autrefois acquit (prior acquittal) and autrefois convict (prior conviction). This principle, he said, “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.

Coke described the protection afforded by the principle of double jeopardy as a function of three related common law pleas: autrefois acquit (prior acquittal), autrefois convict (prior conviction), and former pardon. 3 E. Coke, Institutes 212-13 (1797); J. Sigler, Double Jeopardy 2-16 (1969).

To determine whether two actions are prosecutions for the same offense, the test is: Would the same evidence sustain the proof of each offense? It is not necessary that a person be tried twice for the same action; so long as he has been put in jeopardy, the guarantee against subsequent jeopardy attaches. Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L. Ed. 489, 490, 31 S. Ct. 421, 422.

Very recently in Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, Mr. Justice Powell, speaking for the court in holding that prosecution and punishment for joyriding prohibited prosecution and punishment for auto theft, had occasion to restate the controlling principles which bar successive prosecutions as well as consecutive sentences at a single trial:

“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932):

‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. ***’

This test emphasizes the elements of the two crimes. ‘If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. ***’ Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).

If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” (432 U.S. 161, 166, 53 L. Ed. 2d 187, 194, 97 S. Ct. 2221, 2225.)

So also if the two offenses differ so as to permit the imposition of consecutive sentences, nonetheless successive prosecutions are barred where the second requires the litigation of factual issues determined by the first. (Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189.) Since it is a part of that constitutional guarantee, “its applicability in a particular case is no longer a matter to be left for state court determination within the broad bounds of ‘fundamental fairness,’ but a matter of constitutional fact ***.” Ashe v. Swenson (1970), 397 U.S. 436, 442-43, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.

The doctrine of collateral estoppel is embodied in the fifth amendment’s guarantee against double jeopardy. As Holmes expressed it: “It cannot be that the safeguards of the person, so often and so rightfully mentioned with solemn reverence, are less than those that protect from a liability in debt.” United States v. Oppenheimer (1916), 242 U.S. 85, 87, 61 L. Ed. 161, 164, 37 S. Ct. 68, 69.

The protections afforded by the constitutional guarantees are against a second prosecution after acquittal, a second prosecution after conviction, and multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.

The underlying considerations for these protections are expressed in United States v. Wilson (1975), 420 U.S. 332, 343, 43 L. Ed. 2d 232, 241, 95 S. Ct. 1013, 1021:

“The interests underlying these three protections are quite similar. When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. [Citations.] When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him, ‘thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ”

To subject a person to multiple successive prosecutions because of differences in detail in proofs undermines the fundamental basis of the double jeopardy ban. Considerations of fairness and finality, the very foundation of the double jeopardy bar, require a nontechnical evaluation of the “same evidence” test, and a focus upon the similarity of the elements involved in the two proceedings. Thus the conviction of a lesser included offense barred prosecution for a greater offense, although proof of the greater offense required the establishment of an additional intent element. The greater offense was the same as the lesser offense, since the lesser offense required no proof beyond that required for the conviction of the greater offense. Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221.

Here an application of the same-evidence test makes manifest that defendant was prosecuted and punished twice for the same offense. He was tried and held in indirect criminal contempt of court as well as punished for striking and shooting his wife. Subsequently he was tried and convicted of aggravated battery and acquitted of the crime of attempted murder for the same conduct.

The purpose of criminal contempt is identical with that of many other criminal laws, namely, to protect the institutions of government. Certainly the impact on the particular defendant is the same. (Bloom v. Illinois (1968), 391 U.S. 194, 201, 20 L. Ed. 2d 522, 528, 88 S. Ct. 1477, 1482.) As Holmes stated: “These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Gompers v. United States (1914), 233 U.S. 604, 610, 58 L. Ed. 1115, 1120, 34 S. Ct. 693, 695.

Notwithstanding defendant’s conviction and punishment for criminal contempt, he was tried and convicted a second time for the same conduct, striking and shooting his wife, in a criminal proceeding. The finding of criminal contempt and the conviction of aggravated battery constituted double trial and double punishment for the same offense.

The State urges there was no infringement upon defendant’s guarantee against double jeopardy because the divorce court lacked jurisdiction to try offenses under the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1 — 1 et seq.). This argument is absent merit.

Two courts within one sovereign State may not place a person on trial for the same offense. (Waller v. Florida (1970), 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184; People v. Allison (1970), 46 Ill. 2d 147.) Both the divorce court and the criminal court are courts of the same sovereign, the State of Illinois. Since the offenses of criminal contempt and aggravated battery were the same, a trial for the offense in both the divorce and criminal court violates the guarantees against double jeopardy.

The judgment of the appellate court reversing the second conviction for aggravated battery was correct. It is affirmed.

Judgment affirmed.