Petition — Illinois v. Vitale

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IN THE ] Jt 3 jaTe

Supreme Court of the United States. ° cLeRK_|

OctrospER Term, 1977

No. 8 oe 2

._In the Interest of JOHN M. VITALE, a minor

(STATE OF ILLINOIS,

Petitioner.

JOHN M. VITALE,

Respondent.)

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.,

Assistant Attorneys General,

188 West Randolph Street,

Chicago, Illinois 60601,

Attorneys for Petitioner.

Bernarp Carey,

State’s Attorney, Cook County, Illinois,

Room 500 - Richard J. Daley Center,

Chicago, Illinois 60602,

Lee T. HETTINGER,

JamMEs S. VELDMAN,

Assistant State’s Attorneys,

Of Counsel.

Printed by Authority of the State of Illinois «i» 365

INDEX

PaGE

I Se CCG R ues dS awisesesscccscs 2

aia cig Kp dives ac cccacees 2-3

EE OE 3

Constitutional Provisions Involved ................ 3

EE 4-7

Reasons for Granting the Writ ..................... 8

(1) Lack Of Identity Of Offenses For Purposes Of

ES EE 9-11

(2) Lack Of Identity Of Traffic Offense As Lesser In-

cluded Offense In Charge Of Involuntary Man-

CE Sins dagen sec cccecse 11

en awk aeG acess enss 16

EI SS Oe ee 17

A. Opinion Of The Supreme Court Of Illinois .. .A1-A22

B. Opinion Of The Appellate Court Of Lllinois,

i ewan cesses shines B1-B10

ii.

CITATIONS

CasES:

Ash v. Swenson, 397 U.S. 436 (1969) ................ 11

Blockburger v. United States, 284 U.S. 299 (1934) ...10, 11

Breed v. Jones, 421 U.S. 519 (1975) . 2.2... nce veces 10

Brown v. Ohio, 432 U.S. 161 (1977) .............. 11-12, 13

Ciucci v. Illinots, 355 U.S. 571 (1958) ...............- 10

Green v. United States, 355 U.S. 184 (1955) .......... 10

Lanneili vy. United States, 420 U.S. 770 (1975) ........ 11

People v. Hairston, 46 Ill. 2d 348, 263 N.E. 2d 840

| RE ee rr re eres mere eee 11, 13

People v. Joyner, 50 Ill. 2d 302, 278 N.E. 2d 756 (1972) 11

People v. King, 66 Ill. 2d 55, 362 N.E. 2d 352 (1977) .. 14

People v. Stickler, 31 Ill. App. 3d 977, 334 N.E. 2d 475

ce SRS. peer eee re etre Br ae ey ess 10

State v. Best, 42 Ohio St. 2d 530, 330 N.E. 2d 421 (1975) 14

United States v. Crew, 538 F. 2d 575 (4th Cir., 1976) ;

Cert. denied, 429 U.S. 852 (1976) .................. 14

United States v. Cumberbatch, 563 F. 2d 49 (2nd Cir.,

og | Re ee re eee rer rs a ey, San re 14

United States v. Jorn, 400 U.S. 470 (1971) .......... 10

Virgin Islands v. Smith, 558 F. 2d 691 (3rd Cir., 1977) 14

Waller v. Florida, 397 U.S. 387 (1970) .............. 11

StaTeE PRovISsIONS:

Constitution of the State of Illinois, 1970, Article 1,

GES 0 kaeis ke eI conde bes S hee 10

ID. av; Giet., 1975, Ce By ee Bee ies ies ee kk 10

Til. Rev. Stat., 1973,:Ch. 36, See. 3-4 ................ 10

Ill. Rev. Stat., 1973, Ch. 38, See. 9-3 ................ 12

Il. Rev. Stat., 1973, Ch. 9514, See. 11-601(a) ........ 12-13

IN THE

Supreme Court of the United States

Ocroser Term 1977

No. ——

In the Interest of JOHN M. VITALE, a minor

(STATE OF ILLINOIS,

Petitioner,

Vs.

JOHN M. VITALE,

Respondent.)

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

2

Your Petitioner, the People of the State of Iilinois, re-

spectfully prays that a Writ of Certiorari issue to review

the judgment of the Supreme Court of the State of Illinois

entered in the instant case on April 3, 1978.

OPINIONS BELOW

The opinion of the Supreme Court of the State of Illinois

holding that a petition for adjudication of wardship filed

against the minor Respondent, John M. Vitale, violated Vi-

tale’s right against being twice placed in jeopardy for the

same offense, was rendered by that court on April 3, 1978.

It is to be found reported as In Re. Vitale, a minor, at 71

Ill. 2d 229, 375 N.E. 2d 87 (1978). In turn, the opinion of

the Illinois Supreme Court from which the Writ of Certior-

ari is now sought, affirmed the result reached in this case

by the Appellate Court of Illinois, First District, although

the appellate court’s reasons for finding the delinquency

petition to be improper were completely different than

those of the majority of the Illinois Supreme Court. The

opinion of the Appellate Court, First District, is to be

found reported at 44 Ill. App. 3d 1030, 357 N.E. 2d 1288

(1977). In conformity with Rule 19 of the Supreme Court

of the United States, each of these opinions appears in an

appendix to the present petition.

JURISDICTION OF THE COURT

The opinion of the Supreme Court of the State of Llinois

affirming the earlier determination of the Appellate Court

of Illinois, First District, was rendered on April 3, 1978.

The jurisdiction of the Supreme Court of the United States

to hear this case on Writ of Certiorari is invoked under 28

U.S.C., § 1257(3), since in the proceedings in the state

3

courts of Illinois the Respondent has specifically set up and

throughout asserted an allegation of violation of his rights

arising under the Constitution of the United States.

QUESTION PRESENTED

Whether the minor Respondent who struck and killed

two small children while driving his automobile through

an intersection at an excessive rate of speed and in disre-

gard of the signal of a school crossing guard, can be the

subject of a petition for adjudication of wardship seeking

to have him declared delinquent on the basis of these facts

notwithstanding the fact that at the scene of the collision

with the two children Vitale received a traffic citation for

failing to reduce speed to avoid an accident and subse-

quently paid a fine in connection with that traffic citation;

or whether, as found by the Supreme Court of Illinois, an

adjudication of delinquency under these conditions would

violate Vitale’s right to be free from double jeopardy un-

der the Fifth Amendment of the Constitution of the United

States.

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V.;

‘*No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Malitia, when in

actual service in time of War or public danger, nor

shall any person be subject for the same offense to be

twice placed in jeopardy of life or limb; nor shall bé

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property

without due process of law; nor shall private property

be taken fer public use without just compensation’’.

STATEMENT OF THE CASE

A.

General Background

On November 20, 1974, an automobile operated by John

M. Vitale, a minor, struck two five year old children. One

child died almost at once, the other on the following day.

The children were struck in a marked crosswalk while they

were being assisted across the street by a uniformed school

crossing guard who, at the time, was displaying a hand-

held stop sign. Police investigation indicated that at the

time of the striking of the children, the automobile being

driven by Vitale was traveling at approximately fifty miles

per hour, although at the time there was in effect a twenty

mile per hour school speed limit. The area, at times when

school was not in session, was posted for thirty five miles

per hour. There were some seven warning signs concerning

the school zone and the twenty mile per hour speed limit

posted along he route which Vitale traveled before reach-

ing the intersection. Police investigation further revealed

that three out of the four brakes in Vitale’s automobile were

faulty. The Respondent told the officer at the scene that

his attenion was diverted to his left and that when he

looked back in front of him it was too late to avoid hitting

the children. The officer at the scene issued a traffie cita-

tion charging John Vitale with failing to reduce speed to

avoid an accident: Ill. Rev. Stat. 1973, Ch. 9514, § 11-601.

On December 23, 1974, the traffic case was heard. Vitale

entered a plea of guilty to the charge of failing to reduce

speed, he was found guilty and a fine was imposed.

On the following day, December 24, 1974, a petition for

adjudication of wardship was filed in the Juvenile Division

dD

of the Cirevit Court of Cook County which charged that

John M. Vitale was a delinquent minor under Illinois law.

The basis of this allegation was the incident above de-

scribed, the charge being involuntary manslaughter. Vitale

filed a motion to dismiss the petition alleging that in light

of his having been found guilty and fined for failure to

reduce speed to avoid an accident, he was being again placed

in jeopardy for the same offense by the petition for adjudi-

cation of wardship. The Juvenile Court judge held that the

petition did violate the minor’s right to be free from double

jeopardy and dismissed the petition for adjudication of

wardship. From this determination the People appealed

under authority of Rule 604 of the Supreme Court of Tili-

nois: Ill. Rev. Stat. 1973, Ch. 110A, §$ 604. The Appellate

Court of Illinois, First District, determined that the judge

below was correct in dismissing the petition since it violated

certain provisions in the Illinois Criminal Code dealing

with compulsory joinder of causes in action. In Re. Vitale,

44 Il]. App. 3d 1030, 357 N.E. 2d 1288 (1977).

The People sought and obtained Leave to Appeal to the

Supreme Court of Hlinois from the appellate court deter-

mination. With two justices dissenting, the Illinois Su-

preme Court held on April 3, 1978, that the petition for

adjudication of wardship was properly dismissed for the

reason that if violated Vitale’s Fifth Amendment right to

be free from being twice placed in jeopardy for the same

offense. The court held that in view of the fact that the

Respondent had been fined for the traffic offense of failing

to reduce speed to avoid an accident, he could not be

charged with involuntary manslaughter in the deaths of

the two five year old children. The dissenting opinion of

Mr. Justice Underwood, concurred in by Mr. Justice Ryan,

pointed out that these offenses were not the same in law

or fact, that the traffic charge was not a lesser included

6

offense of the charge of involuntary manslaughter, and

that there was no violation of the double jeopardy provision

of the Fifth Amendment to the Constitution of the United

States.

Seeking to overturn the determination of the majority of

the justices of the Illinois Supreme Court in this case, the

People now seek from this Honorable Court the issuance of

the Writ of Certiorari.

B.

Facts Material To The Question Presented

Briefly stated, the facts germain to the determination

of the issue herein presented are as follows.

The minor Respondent, while driving at more than twice

the posted schoo] speed limit and in complete disregard of

the signal of a school crossing guard who was standing in

the intersection, sped through the intersection and in the

preeess struck and killed two small children who were at-

tempting to cross under the guard’s direction. Vitale was

charged in a traffic citation with failure to reduce speed to

avoid an accident, pleaded guilty in court to that traffic

charge, and was fined. Subsequently, a petition seeking to

have Vitalg declared a delinquent minor was filed charging

him with involuntary manslaughter in connection with the

deaths of the two children. The judge in the Juvenile Di-

vision of the Cireuit Court of Cook County dismissed the

wardship petition. The Appellate Court of [llincis, First

District, held that the petition was properly dismissed due

to the fact that it allegedly violated certain joinder pro-

visions of the Illinois criminal law. The Supreme Court of

Illinois, stating that the compelling ground was that of

former jeopardy, held that Vitale’s right to be free from

~

‘

being twice placed in jeopardy for the same offense was

violated by the wardship petition due to the former con-

viction of the traffic charge and the fine imposed thereon.

C.

Manner In Which The Federal Question Was Raised

The federal question herein presented, that of the ef-

fect upon this case of the prohibition of Amendment V. of

the Constitution of the United States against an accused

being twice placed in jeopardy for the same offense, was

first raised by John Vitale prior to a hearing on the matter

by way of his motion to dismiss the petition for adjudica-

tion of wardship. Throughout the processes of appeal in

the state courts of Illinois, Vitale has consistently adhered

to the position that the juvenile petition violated the dou-

ble jeopardy provision in light of his previously having

been fined for the traffic offense of failing to reduce speed

to avoid an accident. This constitutional question forms the

complete basis for the opinion of the Supreme Court of

Illinois from which a Petition for the Writ of Certiorari

is requested of the Supreme Court of the United States.

REASONS FOR GRANTING THE WRIT

THE DELINQUENCY PETITION CHARGING JOHN

VITALE WITH INVOLUNTARY MANSLAUGHTER

IN THE DEATHS OF TWO SMALL CHILDREN WAS

PROPERLY FILED AGAINST HIM NOTWITH-

STANDING A PRIOR FINE IMPOSED FOR THY

TRAFFIC OFFENSE OF FAILING TO REDUCE

SPEED AND DID NOT VIOLATE VITALE’S RIGHT

TO BE FREE FROM DOUBLE JEOPARDY FOR THE

SAME OFFENSE; SINCE THERE WAS NOT HERE

PRESENT THE NECESSARY IDENTITY OF OF-

FENSES, AND SINCE THERE IS NO PROHIBITION

IN THE LAW AGAINST ONE BEING SUBJECT TO

MORE THAN ONE PROSECUTION WHEN HIS AC-

TIONS CONSTITUTE MORE THAN ONE OFFENSE.

As we have noted, John Vitale struck and killed two five

year old children while driving his automobile through an

interesection in complete disregard not only for posted

school speed limits but also of a crossing guard who, in

uniform, stood in the middle of the intersection and sig-

naled him to stop. The officer who arrived on the scene

issued a traffic ticket to Vitale charging that he failed to

reduce speed to avoid an accident. Vitale subsequently

pleaded guilty to the traffic charge and a fine was imposed.

Vitale, a juvenile, was then made the subject of a petition

for adjudication of wardship (a proceeding to determine

his status as a delinquent), which was based upon the same

incident. Vitale successfully moved to dismiss the petition

in juvenile court on the ground that he was being twice

9

placed in jeopardy for the same offense due to the fact that

he had already entered a plea of guilty to the traffic offense

and had been the subject of a fine. The People appealed

and, incredibly, both the Appellate Court of Illinois, First

District, and then the majority of justices of the Supreme

Court of the State of Illinois held that the dismissal of the

juvenile proceeding was necessitated by the former traffic

offense conviction. In particular, the majority of the Su-

preme Court of Illinois held that the result was mandated

by the prohibition against double jeopardy contained in

Amendment V of the Constitution of the United States.

In his dissenting opinion below, Mr. Justice Underwood

of the Illinois Supreme Court (with Mr. Justice Ryan Con-

curring), states (see Appendix A) ;

‘*T have inflicted this lengthy dissent upon the read-

er because I believe the majority of this court has sub-

stantially broadened the double jeopardy rule it pur-

ports to follow, reaching a result which is compelled

by neither the Federal Constitution nor the constitu-

tion or statutes of Illinois.’’ (Opinion P. 6, Appendix

A, p. A-9)

Mr. Justice Underwood goes on to analyze the opinion of

the majority and show that it is incorrect in that there is

not here present the necessitated identity of the offenses

to call into play the concept of double jeopardy, nor is it

true (as found by the majority) that the traffic charge of

failing to reduce speed is a lesser included offense of the

criminal charge of involuntary manslaughter. The People

submit that in so finding Justices Underwood and Ryan

were correct, that the majority opinion from which the

Writ of Certiorari is herein sought is completely in error,

and that this determination should not be allowed to stand

since it constitutes a complete misinterpretation of the con-

cept of prohibited former jeopardy as imbodied in Amend-

ment V of the Constitution of the United States.

10

That under our system of justice one may not be twice

placed in jeopardy for the same offense is abundantly clear.

Constitution of the United States, Amendment V.; Consti-

tution of the State of Illinois, Article 1, Section 10; United

States v. Jorn, 400 U.S. 470 (1971). The Statutes of the

State of Illinois further implement this policy in that they

provide that a second prosecution for the same offense will

not lie (Ill. Rev. Stat. 1975, Ch. 88, See. 3-4), and that when

offenses can and should be tried together they may not be

tried separately unless the requirements of justice to the

accused require that they be separately tried. Ill. Rey.

Stat. 1975, Ch. 38, See. 3-3. The underlying reason for this

rule is to prevent the prosecution from making repeated

attempts to convict an individual for the same offense and

to eliminate the accompanying risk that, although inno-

cent, that individual might eventually be convicted. Green

v. United States, 355 U.S. 184 (1955). There is also no

question that this constitutional protection is available to

those charged as juvenile offenders. Breed v. Jones, 421

U.S. 519 (1975). What is sought to be prevented can be

seen from the factual situation in the Green decision just

cited and from that in People vy. Stickler, 31 Ill. App. 3d

977, 334 N.E. 2d 475 (4th Dist., 1975). In the Stickler de-

cision, the court found it a violation of the double jeopardy

concept for the defendant who had been convicted of steal-

ing certain rings, to again be charged and convicted of the

theft of those same rings along with other property taken

in the same offense.

However, (and this is the point missed completely by the

majority of the Illinois Supreme Court), th> double jeo-

pardy prohibition concerns itself with the identity of the

offenses and not with the identity of the act or series of

acts out of which they arise. Blockburger v. United States,

284 U.S. 299 (1934) ; Ciucci v. Ilinois, 335 U.S. 571 (1958).

11

The same rule has many times been followed by the Su-

preme Court of the State of Illinois. People v. Joyner, 50

Ill. 2d 302, 278 N.E. 2d 756 (1972); People v. Hairston, 46

Ill. 2d 348, 263 N.E. 2d 840 (1970). The test is not whether

one act or series of acts is involved. The test involved is

that which has become commonly known as the ‘‘same evi-

dence rule.’’ That is, the test is whether each of the two

charges arising out of the act or series of acts involves an

element of proof which the other does not. Brown v. Ohio,

432 U.S. 161 (1977); Blackburger v. United States, supra.

As this Court stated in Lanneili v. United States, 420 U.S.

770 (1975), when each offense charged requires proof dif-

ferent from the other, there is no violation of the right to

be free from former jeopardy although there may be a

substantial overlap in the elements which must be proven

to constitute each charged offense. See also, Waller v.

Florida, 397 U.S. 387 (1970). As Mr. Chief Justice Burger

phrased it in his dissenting opinion in Ash v. Swenson, 397

U.S. 436, 463 (1969) ; ‘‘the concept of double jeopardy and

our firm constitutional commitment is against repeated

trials for the same offense.’’ (Emphasis the court’s).

In its opinion below, the majority of the Illinois Supreme

Court has held that Vitale was twice placed in jeopardy for

the same offense because the traffic charge of failing to

reduce speed to avoid an accident is a lesser included of-

fense of the charge of involuntary manslaughter. This re-

sult, as noted in the dissenting opinion, is simply not cor-

rect. It is of course true that the conviction of the greater

offense precludes conviction of a lesser included offense,

or vice versa; Brown v. Ohio, 432 U.S. 161 (1977). In

Brown, under Ohio law, the offense of joyriding was a

lesser included offense of the charge of automobile theft;

therefore, defendant could not be convicted of both. But in

order to have a situation involving a lesser included of-

12

fense, it is necessary that proof of the greater offense

necessarily include proof of the lesser. Brown v. Ohio,

supra. Put another way, the lesser offense requires no

proof which is not required in order to prove the greater.

That the traffic offense is not a lesser included offense of

the felony offense of involuntary manslaughter can be

seen from the two Illinois Statutes involved. Involuntary

manslaughter is defined by statute in Illinois thusly (IIL

Rev. Stat., 1975, Ch. 38, See. 9-3) ;

‘*(a) <A person who kills an individual without law-

ful 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 death consist of the

driving of a motor vehicle, the person may be prose-

cuted for reckless homicide or if he is proseeuted for

involuntary manslaughter, he may be found guilty of

the included offense of reckless homicide.’’

Thus the Illinois Legislature had made reckless homicide a

lesser included offense of involuntary manslaughter. But

this has nothing to do with the instant ease. Tt is clear that

failure to reduce speed to avoid an accident is not a lesser

included offense of involuntary manslaughter. The traffic

charge is defined under Tllinois Law as follows (Tl. Rev.

Stat., 1973, Ch. 9514, See. 11-601 (a));

‘*No vehicle may he driven upon any highway of this

State at a speed which is greater than is reasonable

and proper with regard to traffic conditions or the use

of the highwav, or endangers the safety of any person

or property. The fact that the sneed of a vehicle does

not exceed the anplicable maximum sneed limit does

not relieve the driver from the duty to decrease speed

when approaching and crossing an intersection, when

13

approaching and going around a curve, when approach-

ing 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 de-

creased 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.”’

Speaking for himself and Mr. Justice Ryan in the dissent-

ing opinion in the Illinois Supreme Court below, Mr. Jus-

tice Underwood after analyzing these provisions concluded

(Opinion, p. 8, Appendix A, p. A-__);

‘*. . . Clearly, proof that one failed to reduce the

speed of his vehicle to avoid a collision (the traffic of-

fense) does not prove manslaughter, for the traffic of-

fense need not involve death; equally clear is the fact

that commission of the crime of involuntary man-

slaughter (the wardship charge) need not involve an

unlawful failure to reduce speed or even the use of a

car.’’

The fact that in this particular instance death resulted

from failure to reduce speed is not relevent. Under the

‘‘same evidence test’’ the criterian is not that which was

proven, but the elements which must be proven to meet

the requirements of the several statutory provisions in-

volved. If the so-called greater charge can be proven with-

out including the lesser (or if the lesser includes an ele-

ment not necessarily found in the so-called greater), then

they are not of necessity included offenses and are not

the same offense for the purposes of the Fifth Amend-

ment. Brown v. Ohio, 482 U.S. 161 (1977); People v. Hairs-

ton, 46 Ill. 2d 348, 263 N.E. 2d 840 (1970), Certiorari de-

nied, 402 U.S. 972 (1971). It is clear here that failure to

reduce speed need involve no death or even collision with

14

a pedestrian, while involuntary manslaughter need involve

no automobile or element of speed at all. Thus the two can-

not be said to be included in any sense within each other.

So, the Supreme Court of Ohio in a case not unlike that

now before us held that a conviction for homicide by vehi-

cle did not preclude conviction upon a traffic charge of

driving at a greater speed than will permit the driver to

stop within an assured-clear-distance. State v. Best, 42

Ohio St. 2d 530, 5386, 830 N.K. 2d 421 (1975) ;

‘‘The only common element to the two offenses is

that both involve the operation of a motor vehicle. No

element of speed or distance ahead is involved in the

offense of homicide by vehicle, and no element of

causing death . . . is involved in the offense of failing

to keep an assured-clear-distance. Although both of-

fense arose out of the same transaction, they are sep-

arate and distinct offenses. ”’

Here also, the statutory elements of the two offenses are

different and it is this which makes them separate and

distinct offenses for double jeopardy purposes. Virgin Is-

lands v. Smith, 558 F.2d 691 (8rd Cir., 1977); United

States v. Cumberbatch, 563 F. 2d 49 (2d Cir., 1977). There

is, as we have noted, no constitutional prohibition either in

federal or Illinois law against multiple prosecutions when

an act or series of acts results in separate and distinct

violations of the law. People v. King, 66 Ill. 2d 55, 362 N.E.

2d 352 (1977); United States v. Crew, 538 F. 2d 575 (4th

Cir., 1976), Certiorari denied, 429 U.S. 852 (1976).

We submit that it is therefore clear that the traffic of-

fense to which John Vitale pleaded guilty was not a lesser

included offense of the charge of involuntary manslaugh-

ter, nor are the two offenses the same in law. Therefore,

they are not the same offense for purposes of double jeop-

15

ardy. The opinion of the majority of Illinois Supreme Court

below is incorrect and should be set aside by this Court

upon certiorari.

It should be noted here in passing that the opinion of

the Illinois Appellate Court which preceeded that of the

Supreme Court of Llinois dealt with the question in terms

of compulsory joinder provisions of Illinois statutory law.

However, this is not to say that the issue herein was in any

way decided upon an independent state ground. On the

contrary, it is evident that the majority opinion of the Su-

preme Court of Illinois did not touch upon this question

and that this opinion, review of which is sought upon Writ

of Certiorari, was decided squarely and purely upon the

federal consitutional issue above. At the very most, re-

versal by this Court on certiorari might cause the Supreme

Court of Illinois to examine the Ilinois statutory question.

But in no way can it be said that in its present posture

this case is improperly being brought before the Supreme

Court of the United States for consideration.

16

CONCLUSION

For these reasons, the Writ of Certiorari should be issued

to review the judgment and opinion of the Supreme Court

of the State of Lllinois.

Respectfully submitted,

Wituram J. Scort,

Attorney General of the State of Illinois,

Donatp B. Mackay,

MeELBourRNE A. Nok, JR.,

Assistant Attorneys General,

188 West Randolph Street,

Chicago, Illinois 60691,

Attorneys for Petitioner.

BERNARD CaREY,

State’s Attorney, Cook Cournty, Illinois,

Room 500 - Richard J. Daley Center,

Chicago, Illinois 60602,

Lee T. Hetrrncer,

JaMEs S. VELDMAN,

Assistant State’s Attorneys,

Of Counsel.

APPENDICES

Al

APPENDIX A

Docket No. 49326—Agenda 3—November 1977. In re

JOHN M. VITALE, a Minor, Appellee—(The People of

the State of Illinois, Appellant.)

*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 chil-

dren. One died almost immediately, and the other the fol-

lowing 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

proscution of the same offense under the compulsory join-

der provision of the Criminal Code of 1961 (Ill. Rev. Stat.

* This opinion was prepared by the late MR. JUSTICE

DOOLEY and was adopted and filed as the opinion of the

court.

A2

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. 8d 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 of-

fenses? In our discussion of this broad issue we shall con-

sider our Criminal Code of 1961 (TIl. 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 pros-

ecution and are within the jurisdiction of a single

court, they must be prosecuted. in a single prosecu-

tion, except as provided in Subsection (c), if they are

based on the same act.

(c) When 2 or more offenses are charged as re-

quired 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.)

A3

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 con-

cluded 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 of-

fense a death was involved. Both offenses, it continued,

were within the jurisdiction of a single court, the juvenile

division of the cireuit court of Cook County (Ill. Rey. 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 require-

ments of section 3—3(b) were met so as to bar subse-

quent prosecution,

We believe there is a more compelling reason why re-

spondent cannot be prosecuted for the offense of involun-

tary manslaughter. The fifth amendment to the Constitu-

tion of the United States provides:

A4

‘¢* * * 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.)

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 protec-

tions are available to juveniles> (Jn 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 pro-

ceedings 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, Black-

stone observed that this principle ‘‘is grounded on this uni-

versal maxim of the common law of Hngland, that no man

is to be brought into jeopardy of his life more than once

for the same offense.’? 4 W. Blackstone, Commentaries

*335. See also 3 IX. 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 prosecu-

tion 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. Kd. 2d 187, 97 S. Ct. 2221, prosecution and pun-

ishment for joyriding—taking an automobile without the

owner’s permission—prohibited prosecution and punish-

A5

ment 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 Amend-

ment, applicable to 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. /t

has long been understood that separate statutory

crimes need not be identical—either in constituent ele-

ments or in actual proof—in order to be the same with-

in the meaning of the constitutional prohibition. 1 J.

Bishop, New Criminal Law see. 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

offense’ under the Double Jeopardy Clause.’’ (Kmpha-

sis 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:

‘“‘TW]here * * * a person has been tried and con-

victed 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,

9S. 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 de-

A6

termine 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 defi-

nition of the crimes of involuntary manslaughter and fail-

ure to reduce speed.

Involuntary manslaughter was defined by statute at the

time of the occurrence thus: .

‘‘(a) <A person who kills an individual without law-

ful 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 prose-

cuted 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 fel-

ony.

(2) Reckless homicide is a Class 4 felony.’’ Il.

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 defen-

dant 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 Instruc-

tions, Criminal, No. 7.10 (1968).

AZ

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 reason-

able and proper with regard to traffic conditions and

the use of the highway, or endangers the safety of any

person or property. The tact that the speed of a vehicle

does not exceed the applicable maximum speed limit

does not not relieve the driver from the duty to de-

crease speed when approaching and crossing an inter-

section, 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 collid-

ing with any person or vehicle on or entering the high-

way in compliance with legal requirements and the duty

of all persons to use due care.’’ (Kmphasis added.) Ill.

Rev. Stat. 1973, ch. 954, par. 11—601(a).

The statute imposes the duty upon all motorists to ex-

ercise ordinary care, to reduce speed, and to avoid collid-

ing 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. Involun-

tary manslaughter with a motor vehicle, or reckless homi-

cide, 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.

A8

As is usually the situation between greater and lesser

included offenses, the lesser offense, failing to reduce

speed, requires no proof beyend that which is necessary for

conviction of the greater, involuntary manslaughter. Ac-

cordingly, for purposes of the double jeopardy clause, the

greater offense is by definition the ‘‘same’’ as the lesser

offense included within it.

Failing to reduce speed and involuntary manslaughter

cannot be fragmented so as to create different offenses.

“The Double Jeopardy Clause is not such a fragile guar-

antee that prosecutors can avoid its limitations by the sim-

ple expedient of dividing a single crime into a series of

temporal or spatial units.’’ Brown v. Ohio (1977), 482 U.S.

161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227.

The sequence of the prosecution is immaterial. The con-

viction of the lesser precludes conviction of the greater,

just as conviction of the greater precludes conviction of

the lesser. (Brown v. Ohio (1977), 482 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 manslaugh-

ter, 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 convie-

tion 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.

AQ

2d 469, 475, 90 S. Ct. 1189, 1194.) State legislatures are

fvee to define crimes and fix punishments. Once the legis-

lature 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), 482 U.S. 161, 165, L. Ed. 2d 187, 193, 97 S.

Ct. 2221, 2225.

For the reasons herein expressed, under the double jeop-

ardy clause the conviction on the traffic charge of failure

to reduce speed precluded the prosecution in a separate

action for involuntary manslaughter.

Judgment affirmed.

MR. JUSTICE UNDERWOOD, dissenting:

I have inflicted this lengthy dissent upon the reader be-

cause I believe the majority of this court has substantially

broadened the double jeopardy rule it purports to follow,

reaching a result which is compelled by neither the Federal

Constitution nor the constitution or statutes of Illinois.

Brown vy. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187,

97 S. Ct. 2221, relied on by the majority, does not require

the dismissal of the involuntary manslaughter charge

levied against Vitale. In Brown, the defendant was first

convicted of joyriding and later convicted of auto theft.

The Ohio court conceded that, under the applicable Ohio

statute, joyriding was completely included within the of-

fense of auto theft. On that basis the Supreme Court re-

versed the subsequent conviction, holding that an included

offense is the same offense for the purpose of applying

the protections of the double jeopardy clause. That holding

is inapplicable here because under the lesser included of-

fense test also found in the Brown opinion, the offense of

failing to reduce speed to avoid an accident is not encom-

passed by the offense of involuntary manslaughter.

A110

This court recently considered whether subsequent prose-

cutions for aggravated battery and attempted murder were

constitutionally impermissible where there had been a

prior finding and punishment for indirect contempt of court

based upon the identical conduct. In People v. Gray (1977),

69 Ill. 2d 44, with the author of this opinion specially con-

curring and Mr. Justice Ryan dissenting, the court held the

subsequent prosecutions precluded. We there said, ‘‘To de-

termine whether two actions are prosecutions for the same

offense, the test is: Would the same evidence sustain the

proof of each offense?’ Ina similar vein we quoted from the

opinion of the Supreme Court in Brown vy. Ohio (1977), 482

U.S. 161, 166, 53 L. Ed. 2d 187, 194, 97 S. Ct. 2221, 2225.

‘‘Mr. Justice Powell, speaking for the court in hold-

ing that prosecution and punishment for auto theft

prohibited prosecution and punishment for joyriding,

had oceasion to restate the controlling principles which

bar successive prosecutions as well as consecutive sen-

tences 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

of transaction constitutes a violation of two dis-

tinct 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 that the other does

not, the Blockburger test would be satisfied, notwith-

standing a substantial overlap in the proof offered

to establish the crimes.’ * * *’? Zannelli v. United

States, 420 U.S. 770 785 n.17 (1975).

* * *? (Citation.]’’ 69 Ill, 2d 44, 49-50.

All

It was also noted that Brown held ‘‘conviction of a lesser

included offense barred prosecution for a greater offense,

*** since the lesser offense required no proof beyond that

required for the conviction of the greater offense.’’ (69

Tl]. 2d 44, 51.) It is precisely the fact that each of the

charges here ‘‘requires proof of a fact which the other

does not,’’ and that proof of the greater offense does not

necessarily involve proof of the lesser, which distinguishes

This case from Brown and Gray. Clearly, proof that one

failed to reduce the speed of his vehicle to avoid a collision

(the traffic offense) does not prove manslaughter, for the

traffic offense need not involve death; equally clear is the

fact that commission of the crime of involuntary manslaugh-

ter (the wardship charge) need not involve an unlawful fail-

ure to reduce speed or even the use of a ear. In short the

traffic violation was not a lesser included offense of the man-

slaughter charges upon which the wardship proceedings are

predicated, and therefore the latter do not fall within the

admonition of Brown that ‘‘Whatever the sequence may be,

the Fifth Amendment forbids successive prosecution and

cumulative punishment for a greater and lesser included

offense.’’ (482 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S.

Ct. 2221, 2227.) The majority’s conclusion that ‘the lesser

offense, failing to reduce speed, requires no proof beyond

that which is necessary for conviction of the greater, invol-

untary manslaughter”’ (slip op. at 5) is, of course, simply

not correct, for, as above stated, proof of manslaughter

need not involve a ear at all.

Under the ‘‘same evidence’? test, the fact that similar evi-

dence is in fact introduced in both trials is irrelevant. If

the greater offense can be accomplished without eommit-

ting the lesser offense, then the greater offense does not em-

brace the lesser, notwithstanding that in the particular

ease the same facts give rise to both offenses. ‘‘As is in-

Al2

variably true of a greater and lesser included offense, the

lesser offense * * * requires no proof beyond that which is

required for conviction of the greater * * *.”’ (mphasis

added.) (Brown v. Ohio (1977), 482 U.S. 161, 168, 53 L.

Ed. 2d 187, 195-96, 97 S. Ct. 2221, 2226.) The crucial evi-

dence is not that actually presented, but the evidence re-

quired by the applicable statutes. Our opinions make plain

that Illinois has heretofore been among the majority of

jurisdictions applying this test in determining what are in-

cluded offenses. In People v. Hairston (1970) 46 Ill. 2d 348,

358, this court quoted Gavieres v. United States (1911),

220 U.S. 338, 342, 55 L. Ed. 489, 490, 31 S. Ct. 421, 422,

also relied upon in Gray, as follows:

‘¢A conviction or acquittal upon one indictment is

no bar to a subsequent conviction and sentence upon

another, unless the evidence required to support a con-

viction upon one of them would have been sufficient

to warrant a conviction upon the other. The test is

not whether the defendant has already been tried for

the same act, but whether he has been put in jeopardy

for the same offense. A single act may be an offense

against two statutes; and if each statute requires proof

of an additional fact which the other does not, an

acquittal or conviction under either statute does not

exempt the defendant from prosecution and punish-

ment under the other.’’ (Emphasis added.)

This court went on to note:

‘Along the same lines, it has been frequently mani-

fested that offenses are not the same if, upon trial of

one, proof of an additional fact is required which is

not necessary to be proved in the trial of the other, al-

though the same acts may be necessary to be proved

in the trial of each. Ebeling v. Morgan (1915), 237 U.S.

625, 59 L. Ed. 1151, 35 S. Ct. 710; Blockburger v.

United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52

S. Ct. 180: Gore v. United States (1958), 357 U.S.

A138

386, 2 L. Ed 2d 1405, 78 S. Ct. 1280; Hattaway v. United

States (5th Cir. 1968), 399 F.2d 431; People v. Gar-

man, 411 Ill. 279.’’ (46 Tll. 2d 348, 358-59.)

In People v. Glickman (1941), 377 Ill. 360, defendant was

charged with burglary under the applicable statute, which

did not contain the common law requirement of entering at

night. Defendant was convicted of attempted burglary un-

der a statute which did require that the attempt be made

at night. In support of this conviction, the State argued that

attempt was a lesser offense included within burglary, but

this court reversed the conviction holding that ‘‘the greater

crime, burglary, does not contain all of the elements of

the lesser, for the element ‘in the nighttime’ is absent”?

(377 Ill. 360, 367), although defendant’s activity was in

fact shown to be at night. See also People.v. King (1966),

34 Tll. 2d 199; People v. Higgins (1967), 86 Ill. App. 2d

202; People v. Shoemaker (1975), 31 Tl. App. 3d 724.

Following Glickman, the legislature defined an included

offense in section 2—9 of the Criminal Code:

‘*Included offense’? means an offense which

(a) Is established by proof of the same or less

than all of the facts or a less culpable mental state

(or both), than that which is required to establish

the commission of the offense charged, or

(b) Consists of an attempt te commit the offense

charged or an offense included therein.’’ (Tll. Rev.

Stat. 1975, ch. 38, par. 2—9.)

It thereby incorporated the ‘‘same evience’’ test (see

People v. Baylor (1975), 25 Ill. App. 3d 1070, 1074), which

is applied although the facts presented in the particular

case actually prove the lesser offense. See People v. Yan-

ders (1975), 32 Ill. App. 3d 599.

Al4

The essence of the ‘‘same evidenee’’ or ‘required evi-

dence’’ test of Blockburger v. United States (1932), 284

U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 183 is

‘‘whether each provision requires proof of an additional

fact which the other does not.’’ This test, utilized by a

majority of American jurisdictions, has been restated by

various American courts. In Comment, Twice in Jeopardy,

75 Yale L.J. 262 (1965), the author noed these reformu-

lations of the test: (1) the ‘‘backwards’’ test—offenses are

not the same unless defendant could have been convicted

of the second offense on the evidence needed in the first

trial; (2) the ‘‘distinct elements’’ test—‘‘offenses are not

the same if each contains an element not included in the

other’’; (3) the ‘‘identity’’ test—‘‘offenses are the same

for double jeopardy purposes only if they are identical in

law and fact.’’ (75 Yale L.J. 262, 273.) The Supreme Court

of Lowa, in holding that a reckless driving conviction did not

bar a subsequent prosecution for manslaughter, stated:

‘‘The lesser offense must be composed solely of some but

not all elements of the greater crime. The lesser crime

must not require any additional element which is not needed

to constitute the greater crime. The lesser offense is there-

fore said to be necessarily included within the greater.’’

(State v. Stewart (Iowa 1974), 225 N.W. 2d 250, 252, cert.

denied (1975), 423 U.S. 902, 46 L. Ed 2d 134, 96 S. Ct.

205.)

The Supreme Court of Ohio in State v. Best (1975),

42 Ohio St. 2d 530, 330 N.. 2d 421, a case very similar to

our own, held that the charge of driving a vehicle ‘‘at a

greater speed than will permit him [the driver] to bring it

to a stop within the assured-clear-distance’’ (42 Ohio St.

2d 530, 536, 330 N.E. 2d 421, 425) is not barred by a prior

prosecution for homicide by vehicle because it is not a lesser

Ald

included offense. The court found that the misdemeanor

bore no relationship to the offense of homicide by vehicle,

stating:

‘*The only common element to the two offenses is

that both involve the operation of a motor vehicle. No

element of speed or distance ahead is involved in the

offense of homicide by vehicle, and no element of caus-

ing death or of violation of the specific statutes cited

in [the homicide statute] is involved in the offense of

failing to keep an assured-clear-distance ahead. Al-

though both offenses arose out of the same transac-

tion, they are separate and distinct offenses.’’ 42 Ohio

St. 2d 530, 536, 330 N.E. 2d 421, 425.

In the recent, post-Brown case of Virgin Islands v. Smith

(3d Cir. 1977), 558 F. 2d 691, the court of appeals acknowl-

edged that Brown followed the Blockburger rule, which

says that it is the evidence demanded by the definition of

the offense, not the evidence adduced at trial, which de-

termines the inclusion of one offense within another. In

Smith, the defendant asserted that a prior conviction of

possession of a dangerous weapon barred prosecution for

a murder committed with that weapon. The court dis-

agreed, stating:

‘*The Supreme Court made its position clear in

Tannelli v. United States, 420 U.S. 770, 785 n. 17, 95

S. Ct. 1284, 1294, 43 L. Ed. 2d 616 (1975), where it said:

‘(T]he Court’s application of the test focuses on

the statutory elements of the offense. If each re-

quires proof of a fact that the other does not, the

Blockburger test is satisfied, notwithstanding a sub-,

stantial overlap in the proof offered to establish the

crimes.’

See also Brown v. Ohio, supra.

Viewing the criminal activity here against that back-

drop reveals the weakness of defendant’s position. Al-

A16

though a dangerous weapon may be used to commit a

murder, a victim can be killed without the use of any

weapon, for example, by strangulation. Moreover, it

would be possible for a person to possess a knife in

violation of the weapons statute, but in stabbing a

person in self-defense be innocent of murder, Thus, a

verdict of guilty on either charge would not establish

the legal prerequisites for the other.’’ 558 F. 2d 691,

696.

Similarly, in United States v. Cumberbatch (2d Cir.

1977), 563 F. 2d 49, the court cited Brown in holding that

the offense of carrying a firearm unlawfully during the

commission of a felony is not included in the offense of

bank robbery with the use of a dangerous weapon, snd that

conspiracy to commit bank robbery is not included in the

offense of bank robbery. For other cases holding this wea-

pons offense not included in armed robbery see Coates

v. Maryland (1977), 436 F. Supp. 226, also citing Brown,

and United States v. Crew (4th Cir. 1976), 5388 F. 2d 575,

cert. denied (1976), 429 U. S. 852, 50 L. Kd. 2d 127, 97 S.

Ct. 144.

Brown’s reiteration of the ‘‘same evidence’’ test of

Blockburger evinces once again the Supreme Court’s con-

sistent refusal to adopt the continuing arguments of some

of its members for ‘‘episodic immunity’’ or a ‘‘same trans-

action’’ test which would generally require the joinder

in one proceeding of ‘‘all the charges against a defendant

that grow out of a single criminal act, occurrence, episode,

or transaction.’’? (Ashe v. Swenson (1970), 397 U.S. 436,

453-54, 25 L. Ed. 2d 469, 481, 90 S. Ct. 1189, 1199; Brown v.

Ohio (1977), 432 U.S. 161, 170, 53 L. Kd. 2d 187, 197, 97 S.

Ct. 2221, (Brennan & Marshall, J.J., concurring).) (See

collection of dissents cited in Thompson v. Oklahoma

(1977), 429 U.S. 1053, 1054, 50 L. Ed. 2d 770, 97 8. Ct. 768

(Brennan & Marshall, J.J., dissenting from denial of

Al7

certiorari).) Nor, until now, has this court construed our

constitution or statutes as incorporating a ‘‘same trans-

action”’ test. People v. Hairston (1970), 46 Ill. 2d 348, 358;

People v. Allen (1937), 368 Ill. 368, 379.

Directly in point is our recent clarification in s eople v.

King (1977), 66 Ill. 2d 551, of the confusion resulting from

earlier opinions considering the multiple prosecution and

sentencing questions. We there undertook a comprehensive

discussion of the constitutional and statutory issues in-

volved, concluding :

‘‘TW]Je are aware of no constitutional limitations

against multiple convictions and concurrent sentences

for difteret offenses arising from multiple acts which

are incidental to or motivated by some greater crim-

inal objective. Multiple convictions and consecutive

sentences have been permitted against claims of double

jeopardy for offenses based on a single act but requir-

ing proof of different facts. Gore v. United States

(1958), 357 U.S. 386, 2 L. Hd. 2d 1405, 78 S. Ct. 1280;

Blockburger v. United States (1932), 284 U.S. 299,

76 L. Ed. 306, 52 S. Ct. 180.’’ (66 Ill. 2d 551, 565.)

Kven more precisely in point, perhaps, is the following:

‘*Prejudice, with regard to multiple acts, exists only

when the defendant is convicted of more than one of-

fense, some of which are, by definition, lesser included

offenses. Multiple convictions and concurrent sentences

should be permitted in all-other cases where a defen-

dant has committed several acts, despite the inter-

relationship of those acts. ‘‘Act,’? when used in this

sense, is intended to mean any overt or outward mani-

festation which will support a different offense. We

hold, therefore, that when more than one offense arises

from a series of incidental or closely related acts and

the offenses are not, by definition, lesser included of-

fenses, convictions with concurrent sentences can be

entered.’’ 66 Ill. 2d 551, 566.

A18

The lesser included offense doctrine evolved at com-

mon law as an aid to the prosecution when it failed to

prove all the elements necessary for a guilty verdict on the

crime charged in the indictment. (People v. Mussenden

(1955), 308 N.Y, 558, 562, 127 N.K. 2d 551, 553; United

Stales v. Harary (2d Cir. 1972), 457 F. 2d 471, 478.) A

strict adherence to the ‘‘same evidence’’ standard protects

defendants from too broad an application of this doctrine

and a resultant conviction of an offense not charged. (People

v. Glickman (1941), 377 Ill. 360; People v. Rainbolt (1977),

52 Ill. App. 3d 374 (criminal trespass to vehicle not a lesser

offense included in charge of theft of a vehicle, conviction

of criminal trespass to vehicle on theft indictment re-

versed); People v. Yanders (1975), 32 Ill. App. 3d 599

(theft not less offense included in robbery, theft conviction

on basis of robbery indictment reversed) ; People v. Shoe-

maker (1975), 31 Ill. App. 3d 724 (burglary indictment will

not support theft conviction since proof of burglary need

not include all essential elements of theft); People v. IHig-

gins (1967), 86 Ill. App. 2d 202 (aggravated battery not

included within involuntary manslaughter, conviction of

aggravated battery on involuntary manslaughter charge re-

versed).) In my opinoin, a charge of involuntary manslaugh-

ter, as here, would not support a conviction for failing to

reduce speed. In its desire to protect this defendant, the

majority has eroded the important protections offered

other defendants by the ‘‘same evidence’’ doctrine.

Nor do the compulsory joinder provisions of the Crim-

inal Code relied on by the appellate court apply to the

charges made against Vitale. It is clear that section 3—3(b) *

requires joinder of the traffie charge and the manslaughter

charge if both arose from the ‘‘same act,’’ and that in such

circumstances section 3—4(b)(1) would effectively. bar a

separate prosecution of the manslaughter charges subse-

A19

quent to conviction on the traffic charge unless separate

trials had been ordered by the trial court pursuant to sec-

tion 3—3(c). If, however, the charges are not based on the

same act, they need not be joined in a single prosecution,

and conviction of the traffic violation does not preclude sub-

sequent prosecution of the manslaughter charges. See III.

Ann. Stat., ch. 38, par. 3—3, Committee Comments, at 202

(Smith-Hurd 1972).

The appellate court found that the involuntary man-

slaughter charge and the charge of failure to reduce speed

to avoid an accident were both based on the ‘‘act’’ of driv-

ing a motor vehicle in a manner likely to cause a collision,

with such act resulting in collision. The specifie act for

which Vitale was convicted in traffic court was his failure

to decrease his speed to avoid colliding with the pedes-

trians. (Ill. Rev. Stat. 1973, ch. 951%, par. 11—601(a).) In

some circumstances such an act may also be sufficient,

should there be a resultant death, to support an involun-

tary manslaughter or reckless homicide prosecution, since

this act may have been performed recklessly and was

‘likely to cause death or great bodily harm te some indivi-

dual.’’ (Ill. Rev. Stat. 1973, ch. 38, par. 9—3(a).) How-

ever, there is no showing here that the manslaughter rests

solely or even principally upon the failure to reduce speed.

The police report of the accident, contained in the record

before us, states that Vitale struck and killed two 5-year-

old children who were crossing the street in a marked school

crosswalk under the direction of a uniformed crossing

guard displaying a stop sign in the center of the street.

According to the report, Vitale stated that his attention

was diverted to his left and when he looked back it was too

late to stop. The investigating officer was of the opinion

that the skid marks indicated that defendant was traveling

A20

at a speed in excess of 50 miles per hour. The accident oc-

curred in a zone normally limited to 35 miles per hour, but

in which a 20 miles per hour school speed limit was in

effect. The police report states that there were seven offi-

cial speed warning signs within 1%4 blocks of the crosswalk.

In addition, the report indicates that three of the vehicle’s

four brakes tested out as faulty.

The petition for wardship may have been based on Vi-

tale’s acts in permitting his attention to be diverted while

driving at a high rate of speed, failing to appropriately

maintain the vehicle’s braking system, failing to note the

seven school zone and speed warning signs, initially rais-

ing the speed of his auto to a dangerous level, or by dis-

obeying the commands of the crossing guard. While we do

not now know which of that series of acts the State intend-

ed to rely on at trial, one certainly cannot now say that

it would rely solely upon Vitale’s failure to reduce speed to

the exclusion of his other misconduct.

In People v. Griffin (1967), 36 Tll. 2d 430, the State

charged defendant with reckless driving, but the court found

the information which the State filed in that case so im-

precise that the defendant would not be able to plead a

judgment thereon as a bar to a future prosecution arising

from the same facts. The particular act or acts which con-

stituted reckless driving may have been any one of a num-

ber acts, such as ‘‘driving while intoxicated, or running

through a stop-light, or driving at an excessive speed or

without brakes, lights or horn; he may have been driving

on the wrong side of the road or on the sidewalk, or without

keeping proper lookout for children, or any one of dozens

of things which might constitute willful and wanton disre-

gard for the safety of persons or property.’’ 36 Ill. 2d 430,

432, citing People v. Green (1938), 368 Ill. 242, 254-55. The

importance of Griffin here is the court’s discussion of the

statutory compulsory joinder protections:

A21

“It does not appear that the compulsory joinder

provision of the Criminal Code (Ill. Rev. Stat. 1965,

chap. 38, par. 3—3,) would protect him against subse-

quent prosecution for each of the specific [traffic] of-

fenses. Section 3—3 requires that offenses be prose-

cuted together only ‘if they are based on the same act.’

The comments of the drafting committee make it clear

that this provision was not meant to require joinder

of separate offenses resulting from the same ‘con-

duct’ (Committee Comment, S.H.A. chap 38, par.

3—3,) which is defined as ‘an act or a series of acts.’

(Il!. Rev. Stat. 1965, chap. 38, par. 2—4.) Since each

act in the example stated would be a separate offense,

and might, in appropriate circumstances, constitute

reckless driving, the compulsory joinder provision

would not prevent successive prosecutions for reckless

driving and for each of the other violations.’’ 36 TIl.

2d 430, 433-34.

The committee comments to this section state that ‘‘See-

tion 3—3 is not intended to cover the situation in which sev-

eral offenses—either repeated violations of the same statu-

tory provision or viclations of different provisions—arise

from a series of acts which are closely related with respect

to the offender’s single purpose or plan.’’ (Ill. Ann. Stat.,

ch, 38, par. 3—3, Committee Comments, at 202 (Smith-

Hurd 1972).) Of course, involuntary manslaughter is a

‘‘nonintent’’ offense, and the minor here had no ‘‘purpose

or plan,’’ but his conduct did involve multiple offenses—

violations of different statutes arising from a series of acts

contributing to the result with which he is now being

charged.

It is clear that section 3—3 cannot be applied to bar the

wardship proceedings here, where the State may seek to

prove the homicide allegations by showing any or all of a

number of different acts by respondent to be reckless and

like to cause death or great bodily harm.

A22

By its opinion the majority has adopted, sub silentio,

the ‘‘episodic immunity’’ or ‘‘same transaction” test un-

successfully urged by the minority in the United States

Supreme Court in Ashe and Brown, and rejected by both

this court and our General Assembly, as earlier noted. In

accomplishing this result both the Federal constitution and

Federal case law are misinterpreted. If my colleagues feel

compelled to expand the protections of the double jeopardy

clause, I would have thought it preferable to do so by en-

larging the prior interpretations of article 1, section 10,

of our own constitution instead of misapplying Federal »

constitutional provisions. By choosing the latter course the

majority has muddied what have been reasonably clear

waters.

While I find no bar to prosecution of this wardship pro-

ceeding, I would call attention to the sentiments in United

States v. Wilson (1975), 420 U.S. 332, 343, 43 L. 1d. 2d 282,

241,95 S. Ct. 1613, 1021. Generally speaking, considerations

of fairness and finality, as well as judicial efficiency and

economy, would seem to indicate the undesirability, even

though permissible, of successive prosecutions for offenses

arising from the same ‘‘episode’’ or ‘‘transaction.’’ This

philosophy might well guide the exercise of prosecutorial

discretion, but the diffieulty of an absolute rule is amply

demonstrated by the majority holding here which permits a

defendant who has caused two deaths to escape punishment

other than a nominal fine.

T would reverse the judgements of the appellate and cir-

cuit courts and remand to the cireuit court of Cook County

for further proceedings.

MR. JUSTICE RYAN joins in this dissent.

Bl

APPENDIX B

No. 62870

IN THE INTEREST OF: ) Appeal from the

JOHN M. VITALE, a minor. Cireuit Court of

PKOPLE OF THE STATE Cook County,

OF ILLINOIS, Juvenile Division.

Petitioner-A ppellant, Z ae

Vs. Honorable

JOHN M. VITALE, a minor, Joseph C. Mooney,

Respondent-A ppellee. . Judge Presiding.

MR. JUSTICE McGLOON delivered the opinion of the

court:

Respondent, John Vitale, was charged, tried and con-

victed by the cireuit court of Cook County, in South Hol-

land, Illinois, of the offense of failing to reduce speed to

avoid an accident, in violation of section 11-601 of the Tlli-

nois Vehicle Code. (Ill. Rev. Stat. 1973, ch. 9514, par. 11-

601.) Subsequently, a petition for adjudication of respon-

dent’s wardship was filed in the juvenile division of the

cireuit court of Cook County, alleging that respondent was

delinquent because he committed involuntary manslaugh-

ter arising from his reckless misconduct in the operation

of a motor vehicle which resulted in the deaths of two

children. Respondent moved for discharge of the juvenile

petition, arguing that the latter prosecution was barred

by both the constitutional rules against double jeopardy

and the statutory provisions contained in section 3-4 of

B2

the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 3-4.)

The circuit court dismissed the juvenile petition, and the

State appeals.

We affirm.

The pleadings disclose the following pertinent facts. On

November 20, 1974, the car respondent was operating struck

two small children; one child died almost immediately and

the other died the next day. The investigating officer of

the South Holland Police Department issued a traffic com-

plaint and summons to respondent, charging him with

failing to reduce speed to avoid an accident. (Ill. Rev. Stat.

1973, ch. 9542, par. 11-601.) The traffic case was heard at

a bench trial on December 23, 1974. Vitale pleaded not

guilty, was found guilty, and a fine was assessed against

him. ‘he records from the traffic case, unfortunately, are

not before us. On the next day, December 24, 1974, a peti-

tion for the adjudication of John Vitale’s wardship was filed

in the juvenile division of the circuit court of Cook County.

The petition alleged that respondent was delinquent be-

cause he committed two offenses of involuntary man-

slaughter on November 20 while recklessly driving a motor

vehicle. The petition was signed by the same policeman

who initiated the traffie proceeding. Respondent subse-

quently moved for discharge of the juvenile petition be-

cause he had already been tried for an offense arising from

the November 20 incident, so that the latter prosecution

was barred by sections 3-3 and 3-4 of the Criminal Code.

Ill. Rev. Stat. 1973, ch. 38, pars. 3-3 and 3-4.

Section 3-3 of the Criminal Code 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 prop-

er prosecuting officer at the time of commencing the

B3

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 re-

quired by Subsection (b), the court in the interest of

justice may order that one or more of such charges be

tried separately.’’

Section 3-4 provides the effect of a failure to comply with

section 3-3:

““* **(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 de-

fendant 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, pars. 3-3 and 3-4.

This appeal presents three questions under section 3-3:

(1) Whether the offense of failing to reduce speed to avoid

an accident was based on the same act as the offenses of

involuntary manslaughter; (2) Whether the traffice offense

and the involuntary manslaughter offenses were within

the jurisdiction of a single court; and (3) Whether the

involuntary manslaughter offenses were know to the prop-

er prosecuting officer when the traffic charge was prose-

cuted.

The first issue is whether the traffic offense for which

respondent was convicted in traffic court, failing to reduce

speed to avoid an accident (hereinafter FTRS), arose from

the same act as the involuntary manslaughter offenses. The

State argues that the offense of FTRS is not a lesser in-

cluded offense of involuntary manslaughter, and that the

B4

offenses are separate and distinct in law and fact. The

respondent argues that the traffic offense is a lesser in-

cluded offense of involuntary manslaughter, and all the

offenses arose from and are based on the same act.

The offense of involuntary manslaughter is defined as

follows:

‘*(a) A person who kills an individual without law-

ful 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 prose-

cuted 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.) Under the statute in

effect at the time of the conduct in question, reckless homi-

cide was a lesser included offense of involuntary man-

slaughter. (People v. Gibson (1976), __ Ill. App. 3d __, 354

N.E. 2d 71.) Because reckless homicide and FTRS have the

same common denominator, the use of a motor vehicle, we

shall compare these offenses to determine whether FTRS

and reckless homicide, and therefore involuntary man-

slaughter, are based upon the same act.

The elements of reckless homicide are: (1) that the

defendant caused the victim’s death by driving a motor

vehicle; (2) that the defendant drove the motor vehicle

recklessly; and (3) that the defendant drove the motor

Bd

vehicle in a manner likely to cause death or great bodily

harm. (Illinois Pattern Jury Instructions, Criminal, No.

7.10) Although not stated in as many words, a collision

with a person or property is an element of proof because

the death in such a case would always result from such a

collision. As was stated in People v. Crego (1946), 395 Il.

451, 461-62:

‘Before a verdict of guilty in an automobile man-

slaughter ase can be sustained the proof must dis-

close that defendant knew of the danger of collision

and reckless, * * * ran down and collided with the

deceased without using such means as were reason-

able and at his command to prevent the accident.”’

The offense of failing to reduce speed to avoid an ac-

cident is set forth in section 11-601(a) of the Illinois Ve-

hicle Code:

**(a) No vehicle my be driven upon any highway

of this State at a spee. which is greater than is reason-

able 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 ve-

hicle does not exceed the applicable maximum speed

limit does not relieve the driver frum the duty to de-

crease speed when approaching and crossing an inter-

section, 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 col-

liding 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.’’

(Tl. Rev. Stat. 1973, ch. 9514, par. 11-601(a), emphasis

added.) The first element is that the defendant, while driv-

ing a motor vehicle, collided with a person or vehicle. The

B6

second element of the offense as written is that the de-

fendant drove the motor vehicle in a manuer which was

in violation of his duty to exercise due care. The final

element is that the collision was caused by defendant’s

failure to reduce his vehicle’s speed in violation of his

duty of due care. The penalty prevision is that the first

and second convictions for this offense are Class C mis-

demeanors (Ill. Rev. Stat. 1973, ch. 95%, par. 16-104),

punishable by not more than 30 days imprisonment (Il.

Rev. Stat. 1973, ch. 38, par. 1005-8-3(3)), and a fine not

to exceed $500. Ill. Rev. Stat. 1973, ch. 38, par. 1005-9-1(3).

The State argues that the respondent’s act of FTRS

causing a collision with two persons was independent of

and had no necessary or consequential relationship with

the acts which would constitute respondent’s culpability

of the offense of involuntary manslaughter. We believe

that the appropriate law is contained within our Criminal

Code, which defines ‘‘act’’ to include ‘‘a failure or omis-

sion to take action,’’ and defines ‘‘conduct’”’ as ‘‘an act

or a series of acts and the accompanying mental state.’

(Ill. Rev. Stat. 1973, ch. 38, pars. 2-2 and 2-4.) As applied

to the instant facts, these definitions lead us to the fol-

lowing conclusions. The conduct constituting the offense of

involuntary manslaughter with a motor vehicle, or reck-

less homicide, is the act of driving a motor vehicle in

a manner likely to cause a collision resulting in death, with

the resulting collision and death, accompanied by the men-

tal state of recklessness. The act constituting the offense

of FTRS is the act of driving a motor vehicle and failing

to reduce its speed to avoid a collision, with such failure

resulting in a collision. Since an act includes a failure or

omission, the offence of FTRS is the act of driving a

motor vehicle in a manner likely to cause a collision, with

such act resulting in a collision. Comparing the acts in

B7

both offenses, the major difference is in the death required

for involuntary manslaughter. The basic acts of both of-

fenses are identical. We hold that the attempted prosecu-

tion herein for the two offenses of involuntary manslaugh-

ter was based upon the same act as the former prosecution

for the offense of failing to reduce speed.

The second issue arising under sectoin 3-3 is whether

the traffice offense of FTRS and the involuntory manslaugh-

ter offenses were within the jurisdiction of a single court.

The Juvenile court has original and exclusive jurisdiction

over a minor who is delinquent by reason of the violation

of ‘‘any federal or state law or municipal ordinance’’ (III.

Rev. Stat. 1973, ch. 37, par. 702-2; In re Rahn (1974), 59

Ill. 2d 302, 319 N.E. 2d 787), except that a minor alleged

to have committed a traffic offense may be prosecuted

therefor without reference to the procedures of the Juvenile

Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 702-7(2).) In

the case at bar, jurisdiction over the minor for commis-

sion of the traffic offense of FTRS was properly exer-

cised by the circuit court sitting in South Holland with-

out regard for the requirements of the Juvenile Court

Act, although the juvenile court also had jurisdiction over

the minor for the same offense. The offenses of FTRS

and involuntary manslaughter were all within the juris-

diction of a single court, the juvenile division of the cir-

cuti court of Cook County.

The third issue is whether the involuntary manslaughter

offenses were known to the proper prosecuting officer when

the traffic charge was prosecuted. At the June 9, 1975 hear-

ing on respondent’s motion, the trial court specifically asked

the two assistant State’s Attorneys in court whether the.

manslaughter charges were known to the State’s Attorney’s

office when the traffic offense was heard on December 23,

1974. In response to this question, one prosecutor said that

B8

she could not supply the requested information at that

moment. The record is silent as to whether a prosecutor

was in attendance at the December 23 trial. Furthermore,

the prosecution does not deny being in attendance and

having knowledge of the manslaughter offenses. We would

note that the respondent first claimed his rights under

sections 3-3 and 3-4 on February 27, 1975 (Ill. Rev. Stat.

1973, ch. 37, par. 701-2(3)(a)), and that the State filed two

responses, on April 4 and May 5. Neither response denied

such attendance and knowledge.

The State argues that although the investigating police

officer knew of the deaths as they occurred, one death im-

mediately after the collision and the other a day later,

such knowledge should not be attributed to the office of

the State’s Attorney, citing People v. Pohl (1964), 47 IIl.

App. 2d 232, 197 N.E. 2d 759. In Pohl, it was held that the

‘“proper prosecuting officer’? means the State’s Attorney

and his assistants, not a police officer with a_cual knowl-

edge of the facts. This holding was followed in People v.

Bressette (1970), 124 Ill. App. 2d 469, __, 259 N.E. 2d 592,

594, where the court wrote:

‘‘Defendant suggests that modern police procedures,

coupled with the statutory duties of a state’s attor-

ney to investigate possible crimes and attend prose-

cutions in the now unified circuit court, require that

we impute the knowledge of the arresting officer to the

state’s attorney. We do not preclude a case in which

the denial by a state’s attorney that he has such knowl-

edge may not be accepted where evidence in the record

fairly points to a contrary conclusion, but this is not

that case. * * * the subsequent prosecution was not

barred because the previous charge was unknown to

the proper prosecuting officer * * *.’”’

The State contends that we should not presume that the

prosecution had knowledge of the manslaughter offenses.

B9

The State’s Attorney for each county has the duty to

attend court proceedings to prosecute felony and misde-

meanor charges (Ill. Rev. Stat. 1973, ch. 14, par. 5.) ‘‘There

is a presumption that the State’s attorney performs the

functions of his office according to the law and that he does

his duty, which is a persumption regarding all officers but

is not conclusive.’’ (People ex rel Hoyne v. Newcomer

(1918), 284 Ill. 315, 324.) A State’s Attorney may rebut

this presumption by denying that he was present to per-

form his official duties. In the absence of a denial, however,

it must be presumed that he performed his statutory fune-

tions. In the context of the case at bar, it is presumed

that an assistant State’s Attorney attended respondent’s

trial on December 23 for FTRS, and that the prosecutor

had full knowledge of the pertinent facts of the offense.

The investigating officer’s report states that two children

died after being hit by respondent’s vehicle. We believe

and hold that in the context of this case, in the absence of

a denial, the proper prosecuting officer is presumed to have

had knowledge of the involuntary manslaughter offenses

when the traffic offense was prosecuted. We would com-

ment that in both Pohl and Bressette, the respective prop-

er prosecuting officers actively denied knowledge of the

other offenses, unlike the prosecutors in the instant ease.

Since the requirements of section 3-3(b) were satisfied

inasmuch as the offenses of involuntary manslaughter were

known to the proper prosecuting officer at the time the

prosecution for FTRS was commenced, were based upon

the same act of driving in a manner likely to cause a col-

lision as the offense of FTRS, and were within the juris-

diction of the juvenile division of the circuit court of Cook

B10

County, the trial court properly held that the later prose-

cution for involuntary manslaughter in the form of a peti-

tion for adjudication of wardship was barred by section

3-4(b) (1).

For the abovementioned reasons, the order of the circuit

court of Cook County granting respondent’s motion for dis-

charge of the juvenile petition for adjudication of wardship

is affirmed.

Order affirmed.

McNAMARA, P. J. and MEJDA, J., concur.