Petition — Illinois v. Vitale

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IN THE JUN 12 1979) Of

{

N K, IR., CLERK

Supreme Court of the Unit IR, CLEP

Ocroser Term, 1978

“48-1845

STATE OF ILLINOIS,

Petitioner,

vs.

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,

Maxzc1a B. Orr,

JAMES S, VELDMAN,

Assistant State’s Attorneys,

Of Counsel.

Printed by Authority of the State of Dlinois <i 365

INDEX

Pac

eas decane dadudeWanet 2-3

es Lae pice eeeundsees wens 3-4

EE SO Oe ee ee 4

Constitutional Provisions Involved .................. 4

ak ese ccegacnacvess 5-9

Reasons For Granting The Writ .................... 9-11

(1) Lack Of Identity Of Offenses For Purposes Of

eS CG o's aca Niee s eaves Gee 8 his 11-14

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

cluded Offense In Charge Of Involuntary Man-

EEE Sree arene ae 14-18

(3) Recurring Nature Of Erroneous Interpretation

Of Double Jeopardy In Illinois Case Law ...... 19-20

ee kn. we eh ats ba ede oud 20

Appendices

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

B. Opinion Of The Appellate Court of Illinois, First

NL os wikia beens Sat dee 6 6% B1-B10

C. Order Of The Supreme Court Of The United

PUOOe, DOOWUMIOE 27, OTE oo cc cc cecccccceneces Cl

D. Certification Of Federal Constitutional Question

By The Supreme Court Of Illinois, March 22,

ers IGS oe 4 kn den sb 09 4b v dees D1

is;

CITATIONS

CasEs: PaGE

Ash v. Swenson, 397 U.S. 436 (1969) ..............0.. 13

Blockburger v. United States, 284 U.S. 299 (1934) ....12, 13

Breed v. Jones, 421 U.S. 519 (1975) ...............5. 12

Brown v. Ohio, 482 U.S. 161 (1977) ........0...... 13, 15, 17

Ciucct v. Illinois, 355 U.S. 571 (1958) ................ 12

Gavieres v. United States, 220 U.S. 338 (1911) ....... 13, 14

Green v. United States, 355 U.S. 184 (1955) .......... 12

Jeffers v. United States, 482 U.S. 137 (1977) ......... 13

Kowalski v. Parratt, 533 F. 2d 1071 (Sth Cir., 1976),

Cert. denied, 429 U.S. 844 (1976) .............. 13-14, 17

Lanneili v. United States, 420 U.S. 770 (1975) ........ 13

North Carolina v. Pierce, 395 U.S. 711 (1968) ........ 12

People v. Allen, 368 Ill. 368, 14 N.E. 2d 397 (1938), Cert.

Gemed, S06 TS. Gil CAOGH) vehi ee cbc tccs 13

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

(1970), Cert. denied, 402 U.S. 972 (1971) ......... 13, 17

People v. Joyner, 50 Ill. 2d 302, 278 N.E. 2d 756 (1972) 13

People v. King, 66 Ill. 2d 55, 362 N.E. 2d 352 (1977) ... 18

People v. Stickler, 31 Ill. App. 3d ‘iitgi® 34 Neb. 2d 475

<i: CUD s 5 44> sau daa caeks Candee cers 12

People v. Zegart, (No. 51229, Supreme Court of Illinois,

Grater OTUUE MEAG BG, TOTES 5 iio aac. bess be ccc cee’ 19

State v. Best, 42 Ohio St. 2d 530, 330 N.E. 2d 421 (1975) 18

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

Cert. denied, 429 U.S. 852 (1976) ................. 18

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

NG CKEME VSS MG sod bee Par ch uk oei ee eens bebe 18

iii.

United States v. Jorn, 400 U.S. 470 (1971) ........... 11

United States v. Smith 574 F. 2d 308 (5th Cir., 1978) .. 12

United States v. Wheeler, 435 U.S. 313 (1978) ........ 13

United States v. Wilson, 420 U.S, 332 (1975) ......... 12

Virgin Islands v. Smith, 558 F. 2d 691 (3rd Cir.,1977).. 18

Waller v. Florida, 397 U.S. 887 (1970) ............0. 13

Stare or IuurNots Provisions:

Constitution Of The State of Illinois, 1970, Article

MUM Wy RE OCON EEA AWE nk 6a ws cos a docuek ok catcenn 11

Hl. Rev. Stat., 1977, Ch. $8, $ 8-3 .. 0... ccc cece 12

il, Bee¥. Gtat., 2077, Ch. SB. OS4 o.oo kon. hk scence. 11

Ill. Rev. Stat. 1973, Ch. 38, $ 9-8 ........ ccc ccc ceese 15-16

Ill. Rev. Stat., 1973, Ch. 9514, § 11-601(a) ..........., 16

IN THE

Supreme Court of the United States

OcroBEr TERM, 1978

No. ——

STATE OF ILLINOIS,

Petitioner,

vs.

JOHN M. VITALE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ILLINOIS

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

spectfully prays that a Writ of Certiorari issue to review

the judgment of the Supreme Court of the State of Illi-

nois which was originally entered in the instant case on

April 3, 1978, and which (in compliance with an Order of

the Supreme Court of the United States), has been certi-

fied by the Supreme Court of Illinois as being based upon

an interpretation of a provision of the Constitution of

the United States. This certification was entered by the

Supreme Court of Iinois on March 22, 1979.

OPINIONS BELOW

The opinion of the Supreme Court of the State of Illi-

nois holding that a petition for adjudication of wardship

filed against the minor Respondent, John M. Vitale, vio-

lated Vitale’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 Jn Re Vitale,

A Minor, at 71 Ill. 2d 229, 375 N.E. 2d 87 (1978). In turn,

the opinion of the Illinois Supreme Court which is the

basis of the present Certiorari Petition, affirmed the re-

sult.reached in the case by the Appellate Court of Illinois,

First District, whose opinion is to be found reported at

44 Tll. App. 3d 1030, 357 N.E. 2d 1288 (1977). In conformity

with Rule 23 of the Supreme Court of the United States,

each of these opinions appears in an appendix to the present

petition.

Following the rendition of the decision of the Illinois

Supreme Court, the People of the State of Illinois sought

review of that decision by this Honorable Court. On July

14, 1978, the People filed a Petition for Writ of Certiorari

which was docketed in the United States Supreme Court

as No. 782. On November 27, 1978, this Court entered

an order granting the Writ of Certiorari, vacating the

judgment of the Supreme Court of Illinois, and remanding

the case to the Supreme Court of Illinois for that court

to determine whether its decision was based upon Federal

or state constitutional grounds, or both. A copy of this

Court’s order of November 27, 1978 appears as Appendix

C of the present Petition for Certiorari.

On March 22, 1979, the Supreme Court of the State of

Illinois certified that its original decision was indeed based

upon its interpretation of the double jeopardy provisions

of the Fifth Amendment to the Constitution of the United

States. A copy of the notification of that certification is

attached hereto as Appendix D. The case now returns

to the posture wherein the decision of the Supreme Court

of Illinois concerning the effect of principles of double

jeopardy upon the petition filed against John Vitale should

be considered and, we submit, found erroneous and over-

turned by the Supreme Court of the United States.

JURISDICTION OF THE COURT

The opinion of the Supreme Court of the State of Ilinois

affirming the earlier determination of the Appellate Court

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

On March 22, 1979, pursuant to order of this Court, the

Illinois Supreme Court certified that its decision was

based upon ederal Constitutional grounds. The juris-

diction 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 courts of

Illinois the Respondent has specifically set up and argued

throughout an allegation of violation of his rights arising

under the Constitution of the United States. As we have

noted, the Illinois Supreme Court has now certified that this

constitutional question is the basis of its decision affirming

the dismissal of the delinquency petition filed against John

M. Vitale.

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 dis-

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

subject of a petition seeking an adjudication of wardship

to have him deciared 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 fifteen dollar 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 under the Fifth Amendment of the Con-

stition 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 Militia, 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

be 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 pri-

vate property be taken for public use without just

compensation’’.

STATEMENT OF THE CASE

General Background

On November 20, 1974, an automobile operated by John

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

One of the children died almost instantly, the other died

the following day in the hospital. According to the inves-

tigation of police at the scene, the two 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 further 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, althought 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 with a speed limit

of thirty five miles per hour. There were some seven warn-

ing signs concerning the school zone and the twenty mile

per hour speed limit posted along the route which John

Vitale traveled before reaching the intersection in which

the young children were struck. The police also deter-

mined that three out of the four brakes on Vitale’s auto-

mobile were faulty. The Respondent told a police officer at

the scene that his attention was diverted to his left and that

when he looked once more in the direction in which he

was driving it was already too late for him to avoid striking

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

tion charging John Vitale with failing to reduce speed

to avoid an accident. Ill. Rev. Stat. 1973, Ch. 95-4%, § 11-601.

On December 23, 1974, the traffic case was heard in court.

Vitale entered a plea of not guilty to the charge of failing

to reduce speed to avoid an accident, he was tried on that

charge, and he was found guilty. A fine of fifteen dollars

($15.00) was imposed by the court.

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

for adjudication of wardship was filed in the Juvenile Divi-

sion of the Cireuit Court of Cook County, Illinois, which

charged that John Vitale was a delinquent minor under

applicable provisions of Illinois law. The basis of this

allegation was the incident above described, the juvenile

petition charging Vitale with involuntary manslaughter in

connection with the deaths of the children. Vitale filed a

motion to dismiss this petition alleging that in light of the

fact of his having been found guilty of failing to reduce

speed to avoid an accident, and his having been fined fif-

teen dollars, he was again being placed in jeopardy for

the same offense by the petition for adjudication of ward-

ship. The judge in the Juvenile Court found that the peti-

tion for adjudication of wardship did violate the minor’s

right to be free from double jeopardy and so he dismissed

the petition. From this determination the People appealed

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

nois: Ill. Rev. Stat. 1973, Ch. 110A, § 604(a). The Appellate

Court of Illinois, First District, determined that the judge

below had been correct in dismissing the petition since it

violated certain provisions of the Illinois Criminal Code

dealing with compulsory joinder of causes in action. In Re

Vitale, 44 Ill. App. 3d 1030, 357 N.E. 2d 1288 (1977).

The People sought and obtained Leave to Appeal to

the Supreme Court of Illinois from the Appellate Court

determination. With two justices strongly dissenting, the

[llinois Supreme Court held on April 3, 1978, that the peti-

tion for adjudication of wardship was properly dismissed

for the reason that it violated Vitale’s Fifth Amendment

right to be free from being twice placed in jeopardy for

the same offense. The majority of the court held that in

view of the fact that Vitale had been fined for the traffic

offense of failing to reduce speed to avoid an accident,

he could not be charged with invoiuntary 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 in fact, that the traffic charge was not

a lesser included offense of the charge of involuntary

manslaughter, and that there was no violation of the double

jeopardy provision of the Fifth Amendment to the Con-

stitution of the United States.

Seeking to overturn the determination of the majority

of the justices of the Supreme Court of Illinois, the People

sought from this Honorable Court a Writ of Certiorari.

In case number 78-2, State of Illinois v. John M. Vitale,

this Court granted the Writ of Certiorari on November

27, 1978. By order of the majority of justices of this Court,

the judgment of the Supreme Court of Illinois was vacated

and the cause remanded to that court for determination of

whether its decision was based on federal or state consti-

tutional grounds, or both. Justices Blackman and White

would have granted the Writ and proceeded with the cause

in the Supreme Court of the United States.

Upon remand to the Supreme Court of Illinois, that

court certified on March 22, 1979, that its decision was

based squarely on an interpretation of the double jeopardy

provisions contained within Amendment V of the Consti-

tution of the United States. This last determination having

now been made, the People once more seek review by this

Honorable Court of the determination of the Illinois Su-

preme Court below through the Writ of Certiorari.

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 a speed which

was more than twice the posted school speed limit and

in complete disregard of the signal of a school crossing

guard who was directing traffic in the intersection, sped

through the intersection and in the process struck and

killed two small children who were attempting to cross

the street under the guard’s direction. Vitale was charged

in a traffic citation with failure to reduce speed in order

to avoid an accident, he entered a plea of not guilty, and

was found guilty of the traffic charge and fined the sum

of fifteen dollars ($15.00). Subsequently, a petition seeking

to have Vitale declared a delinquent minor was filed

charging him with involuntary manslaughter in causing

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

Division of the Cireuit Court of Cook County dismissed

the wardship petition pursuant to Respondent’s motion,

and this judgment was affirmed by the Illinois reviewing

courts.

Manner In Which The Federal Question Was Raised

The federal question herein presented, that of the effect

upon this case of the prohibition contained in Amendment

V. of the Constitution of the United States against a criml-

nal accused being twice placed in jeopardy for the same

offense, was first raised by John Vitale prior to a hearing

on the charges against him by way of his motion to dismiss

those charges. Throughout the processes of appeal through

the State courts of Illinois, Vitale has consistently adhered

to the position that the juvenile petition violated the double

jeopardy provision in light of his having previously been

fined for the traffic offense of failing to reduce speed to

avoid an accident. This federal constitutional question

forms the complete basis for the decision of the Supreme

Court of Illinois from which a Petition for the Writ of

Certiorari is now sought, the Illinois Supreme Court hav-

ing so certified on remand by this Honorable Court.

REASONS FOR GRANTING THE WRIT

THE DELINQUENCY PETITION CHARGING JOHN VI-

TALE WITH INVOLUNTARY MANSLAUGHTER IN

THE DEATHS OF TWO SMALL CHILDREN WAS

PROPERLY FILED AGAINST HIM, NOTWITH-

STANDING A PRIOR FINE IMPOSED FOR THE

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 IDENITY OF OFFEN-

SES, 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 intersection in complete disregard not only of posted

school speed limits but also of a school crossing guard

who stood with the children in the intersection and sig-

naled Vitale to stop. The police officer who arrived on the

scene issued a traffic ticket to Vitale charging that he

failed to reduce the speed of his vehicle to avoid an acci-

dent. Vitale was subsequently convicted of the traffic

charge and a fine was imposed. Vitale, then a juvenile, was

then made the subject of a petition for adjudication of

wardship (a proceeding to determine his status as a de-

linquent minor), which was based upon the same incident.

Vitale successfully moved to dismiss the delinquency pe-

tition in juvenile court on the ground that he was twice

being placed in jeopardy for the same offense due to the

fact that he had already been found guilty of a traffic

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

and, incredibly, both the Lllinois Appellate Court, First

District, and then the Supreme Court of the State of Illi-

nois held that the dismissal of the delinquency petition was

necessitated by the former traffic offense conviction. In

particular, the majority of the Supreme Court of Illinois

held that the result was mandated by the prohibition against

double jeopardy contained in Amendment V of the Con-

stitution of the United States.

In his dissenting opinion below, Mr. Justice Underwood

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

concurring), states (see Appendix A):

“T have inflicted this lengthy dissent upon the

reader because I believe the majority of this court

has substantially broadened the double jeopardy rule

it purports to follow, reaching a result which is com-

pelled by neither the Federal Constitution nor the

constitution or statutes of Illinois.” (Opinion, P. 6,

Appendix A, P. A. 8)

Mr. Justice Underwood goes on to analyze the opinion of

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

is not here present the necessary identity of the offenses

to call into play the constitutional 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 absolutely correct, that the

majority opinion from which the Writ of Certiorari is

herein sought is completely in error, and that this deter-

mination should not be allowed to stand since it constitutes

a complete misinterpretation of the concept of prohibited

former jeopardy as embodied in Amendment V of the Con-

stitution of the United States. Furthermore, the Writ of

Certoriari should be granted to correct this misinterpreta-

tion of double jeopardy since this case is not an isolated

one in Illinois and, in fact, is being followed in subsequent

cases by courts of review in Illinois. For these reasons this

Court should grant Certiorari in the instant case and set

aside the determination reached by the Supreme Court of

Illinois below.

Laci Of Identity Of Offenses For Purposes Of Double

Jeoparcy.

That under our system of justice one may not be twice

placed in jeopardy for the same offense is abundently

clear. Constitution of the United States, Amendment V;

Constitution of the State of Illinois, Article I, § 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 of-

fense will not lie (Ill. Rev. Stat., 1977, Ch. 38, § 3-4), and

that when offenses can and should be tried together they

may not be tried separately unless the requirements of

justice and due process to the accused require that they

be separately tried. Hl Rev, Stat., 1977, Ch, 38, § 3-3.

The underlying reason for the double jeopardy prohibition

is to prevent the prosecution from making repeated at-

tempts to convict an individual for the same offense and to

eliminate the accompanying risk that, althongh he might

be innocent, the individual subjected to multiple trials for

the same offense might eventually be convieted, Green v.

United States, 355 U.S, 184 (1955), What ia sought to be

prevented is multiple convictions and/or punishment for

the same offense, United States v. Wilson, 420 U.S, 332

(1975); North Carolina v. Pierce, 395 U.S. 711 (1968),

It should be further neted, since at the time of the charges

here in question Vitale was a minor, that there is no

question that this protection is available to those persons

charged as juvenile offenders, Breed vy. Jones, 421 U.S, 619

(1975). What is sought to be prevented by the double

jeopardy protection can be seen in the factual situation

presented by cases such as Green vy. United States, supra,

and People v, Stickler, 31 Ill App. 3d 977, 334 N.1, 2d

475 (4th Dist., 1975). In the Stickler decision, for example,

the court found it a violation of the double jeopardy eon-

cept for the defendant who had been convieted of stealing

certain rings, to again be charged with and convicted of

the theft of those same rings along with other property

taken by him at the same time and in the same offense,

However, (and this is the point which has been com-

pletely overlooked by the majority opinion of the Tlinois

Supreme Court in the instant ease), the double jeopardy

prohibition concerns itself with the identity of the offenses

and not with the identity of the act or seriea of acts out of

which they arise, Blockburger v. United States, 284 U.S.

299 (1934); Ciucet v. Illinois, 335 U.S. 571 (1958). The

same rule has many times been followed by the Supreme

Court of the State of Mlinois, People v. Joyner, 50 Ti, 2d

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

348, 263 N.K. 2d 840 (1970), cert. denied, 402 U.S. 972

(1971). When a single act encompasses more than one of-

fense, there is no prohibition against separate trials or con-

victions as to those separate offenses. Gavieres v. United

States, 220 U.S. 388 (1911). See also, People v, Allen, 368

Il, 368, 14 N.E. 2d 397 (1938), cert. denied, 308 U.S.

611 (1939), The test is not whether a single act or series of

acts is involved, The test is that which has become com-

inonly known as the “same evidence test’’, That is, the

appropriate test is whether each of the 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); Jeffers v. United States, 482 U.S, 187 (1977);

Blockburger vy. United States, supra; United States v.

Smith, 574 F. 2d 308 (5th Cir, 1978). As this Court stated

in Lanneili v. United States, 420 U.S. 770 (1975), when each

offense charged requires proof different from the other,

there is no violation of the right to be free from double

jeopardy although there may be a substantial overlap in

the elements whieh 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 dis-

senting opinion in Ash v. Swenson, 397 U.S, 436, 463 (1969),

“The concept of double jeopardy and our firm constitu-

tional commitment is against repeated trials for the same

offense.”’ (Smphasis the court's),

When a single act constitutes more than one offense, when

those offenses are not the same offense, double jeopardy

does not prohibit separate convictions and sentences for

each offense involved. United States v. Wheeler, 435 U.S.

$13 (1978). So, in Kowalski v. Parratt, 533 F, 2d 1071 (8th

Cir., 1976), cert. denied, 429 U.S, 844 (1976), defendant

was charged in the State of Nebraska under Nebraska

law with robbery in that he took property from the vietim

by force or by putting the victim into a state of fear. He

was separately charged under Nebraska law with the erime

of use of a firearm in the commission of a felony. In fact,

the means of putting the victim in fear in the robbery

was the use of the firearm charged in the second charged

offense, use of the firearm in the commission of a felony.

Considering the Blockburger test, that is, whether the of-

fenses are the same or whether each requires proof which

the other does not, the court concluded that the two Ne-

braska charges did not involve the same offense because

the proof required by statute for each was different than

that required for proof of the other. Proof of the offense of

robbery did not necessarily include the use of a firearm,

nor did the elements of robbery enter into the statutory

definition of use of a firearm in the cominission of a felony.

The test is that of what elements of proof are necessary

under the applicable statute. The fact that in a particular

case the proofs might be virtually the same is not a relevant

consideration. This was the precise point made by Mr.

Justice Underwood in his dissenting opinion in the instant

case when he noted, ‘‘The crucial evidence is not that

actually presented, but the evidence required by the ap-

plicable statutes”. (Appendix A, p. A12). See, Gavieres

v. United States, supra.

Lack Of Identity Of Traffic Offense As Lesser Included

Offense In Charge Of Involuntary Manslaughter.

In its opinion below, the majority of the Illinois Su-

preme Court held that Vitale was twice placed in jeopardy

for the same offense because the traffie charge of failing

to reduce speed to avoid an accident is a lesser included

offense of the charge of involuntary manslaughter. This

result, as stated in the dissenting opinion of Justices Un-

derwood and Ryan, is simply not correct, It is true that eon-

viction of a greater offense precludes conviction of any of

its lesser included offenses, or vice versa; Brown v. Ohio,

432 U.S. 161 (1977). In Brown, under Ohio law, the of-

fense of joyriding was a lesser included offense of the

charge of automobile theft; therefore, defendant could

not be convieted of both. This Court in Brown specified

that the issue under consideration was whether one could

be convicted of both the greater and lesser included of-

fenses under the double jeopardy concept. The fact that in

Brown we were dealing with an instance of a lesser in-

cluded offense was taken as granted by this Court in its

decision. But in order to have a situation involving a lesser

included offense, it is necessary that proof of the greater

offense will always include proof of the lesser. Brown v.

Ohio, supra, Put another way, the lesser offense requires

no proot which is not necessary in order to prove the

greater, and the greater offense includes among its necessi-

tated proofs all of the elements of the lessor offense. Thus,

as determined in Brown, a lesser included offense is the

same offense as the greater for purposes of the double

jeopardy concept. In the present case, the fact that the

traffic offense of failing to reduce speed is not a lesser

included offense of the felony charge of involuntary man-

slaughter ean be clearly seen from the two Tllinois stat-

utes involved. Involuntary manslaughter is defined by

statute in Illinois thusly (Ill. Rev. Stat. 1973, Ch. 38,

§ 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 prosecuted for

involuntary manslaughter, he may be found guilty

of the included offense of reckless homicide.”

Thus, the Illinois Legislature has made reckless homicide

a lesser included offense of involuntary manslaughter.

But this fact has nothing whatever to do with the case

of John Vitale. It is clear that the offense of failure to

reduce speed to avoid an accident is not a lesser included

offense of the offense of involuntary manslaughter, The

traffic charge is defined under Illinois law as follows (Ill.

Rev. Stat., 1973, Ch. 95-'4, § 11-601 (a) :

‘‘No vehicle may be driven upon any highway of this

State at a speed which is greater than is reasonable and

proper with regard to traffic conditions or the use of

the highway, or endangers the safety of any person

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

not exceed the applicable maximum speed limit does

not relieve the driver from the duty to decrease speed

when approaching and crossing an intersection, when

approaching and going around a curve, when 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 for Justice Ryan in his dissent-

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

tice Underwood after analyzing these provisions concluded

(Appendix A, p. A10):

6é

... Clearly, proof that one failed to reduee 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 man-

slaughter (the wardship charge) need not involve an

unlawful failure to reduce speed or even the use of a

ear.”

The fact that in this particular instanee death resulted

among other factors from the failure of Vitale to reduce

the speed of his vehicle is not relevant. Under the ‘‘same

evidence test” the criterian is not that which was proven,

but the elements which must be proven to meet the require-

ments of the several statutory provisions involved, If the

so-called greater charge can be proven without including

the lesser (or if the lesser includes an element not neces-

sarily found in the so-called greater), then they are not

of necessity included offenses and are not the same of-

fenses for purposes of the Fifth Amendment. Brown vy.

Ohio, 432 U.S. 161 (1977); Kowalski v. Parratt, 533 F. 2d

1071 (8th Cir., 1976), cert. denied, 429 U.S, 844 (1976);

People v. Hairston, 46 Ill. 2d 348, 263 N.E. 2d 840 (1970),

cert. denied, 402 U.S. 972 (1971). It is clear here that

failure to reduce speed need involve no death nor even

collision with a pedestrian, while involuntary manslaughter

need involve no automobile or element of speed at all. The

offense of involuntary manslaughter by definition must

involve a death, an element completely lacking from the

traffic offense of failure to reduce speed. Thus, in no

sense can the two offenses be said to be included within

each other, They are not the same offense for purposes of

double jeopardy.

The Supreme Court of Ohio in a case not unlike that

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

hicle 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,

4° Ohio St. 2d 530, 536, 330 N.E. 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 fail-

ing to keep an assured clear distance. Although both

offenses arose out of the same transaction, they are

separate and distinct offenses.’’

Here also, the statutory elements of the two offenses are

different and it is this which makes them separate and dis-

tinct offenses for double jeopardy purposes. Virgin Is-

lands v. Smith, 558 F. 2d 691 (3rd Cir.,.1977); United

States v. Cumberbatch, 563 F. 2d 49 (2nd 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 vio-

lations of the law. United States v. Crew, 538 F. 2d 575

(4th Cir., 1975), cert. denied, 429 U.S. 852 (1976); People

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

We submit, therefore, that it is clear that the traffic

offense of which John Vitale was found guilty was not

a lesser included offense of the charge of involuntary man-

slaughter, nor are the two offenses the same in law. They

are not the same offense for purposes of double jeopardy.

Therefore, the opinion of the majority of the Supreme

Court of Illinois was incorrect and should not stand as the

law in Illinois. This Court should grant Certiorari and

should set aside the opinion of the Illinois Supreme Court

below.

Recurring Nature Of Erroneous Interpretation Of Double

Jeopardy In Illinois Case Law.

In considering the instant Petition for Certiorari, the

justices of this Honorable Court should be aware that the

problem found in the ease of John Vitale is not an isolated

one in the State of Illinois. On the contrary, in similar

eases Illinois courts of review have followed the interpre-

tation of the Fifth Amendment double jeopardy provision

set out in the Vitale decision from which this writ is now

sought. In People v. Zegart, No. 51229, orally argued be-

fore the Supreme Court of Illinois on May 16, 1979, ap-

peal was taken by the People from a determination of

the Appellate Court of Illinois for the Second District. The

Appellate Court (in an opinion not yet officially reported

at the time of this writing), held that a woman who drove

her automobile across the dividing median strip on a high-

way into oncoming lanes of traffic thereby causing the

death of persons in another automobile could not be charged

with reckless homicide. The rationale of that decision was

that Marla Zegart had been issued a traffic citation for

improperly crossing a highway median, and had entered

a plea of guilty to the traffic offense. Like John Vitale

in the instant case, Zegart had killed two persons and had

received no punishment save a small fine. Relying on the

Vitale decision from which Certiorari is herein sought,

the Illinois courts have dismissed the reckless homicide

ease against Marla Zegart. As we have noted, at this

writing, the Zegart case is pending for decision before

the Supreme Court of Illinois. Thus, this problem of the

misinterpretation of double jeopardy found in the instant

ease is already serving as precedent for errors of a simi-

lar nature in other cases in this State.

We submit that this Court should grant Certiorari, re-

view the determination of the Illinois Supreme ‘Court

below, and determine in accordance with well established

decisions of this Court that there was no violation of the

Fifth Amendment double jeopardy provision in the charg-

ing of John Vitale with involuntary manslaughter.

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 Illinois.

Respectfully submitted,

Wiuiam J. Scort,

Attorney General of the State of Illinois,

Donatp B. Mackay,

MELBOURNE A. Nokt, JR.,

Assistant Attorneys General,

188 West Randolph Street,

Chicago, Illinois 60601,

Attorneys for Petitioner.

Brernarp Carey,

State’s Attorney, Cook County, Illinois,

Room 500, Richard J. Daley Center,

Chicago, Illinois 60602,

Marcia B. Orr,

James 8, VELDMAN,

Assistant State’s Attorneys,

Of Counsel.

APPENDICES

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 cireuit court of Cook County. The

petition, signed by the same police officer who issued the

traffic ticket, alleged respondent was delinquent in that on

November 20, 1974, while recklessly driving an automobile,

he committed involuntary manslaughter resulting in the

death of the two minors.

Respondent subsequently moved to discharge, asserting

the prosecution of the traffic charge barred the subsequent

prosecution of the same offense under the compulstory join-

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

1973, ch. 38, par. 3—3(b)), and the double jeopardy and due

* This opinion was prepared by the late MR. JUSTICE

DOOLEY and was adopted and filed as the opinion of the

court.

process clauses of the Federal Constitution. U.S. Const.,

Amends. V, XiV.

The circuit court dismissed the juvenile petition. The

appellate court found that the involuntary manslaughter

charge and failure to reduce speed charge were predicated

on the same “‘act” within the meaning of section 3-3(b)

of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38,

par. 3—3(b)). Accordingly, it affirmed the dismissal order

(44 Ill. App. 3d 1030). We granted leave to appeal under

our Rule 315 (58 Ill. 2d R. 315).

Does the traffic offense for which respondent was tried

and convicted, failure to reduce speed to avoid an accident,

prohibit a subsequent prosecution for the manslaughter of-

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

sider our Criminal Code of 1961 (Il.. 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.

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.)

So also section 3—4, having to do with the effect of a

failure to comply with section 3—3, states: ala

‘‘(b) <A prosecution is barred if the defendant was

formerly prosecuted for a cifferent offense, * * * if

such former prosecution:

(1) * * * was for an effense 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, 24).

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 circuit court of Cook County (Ill. Rev. Stat.

1973, ch. 37, par. 702—2).

The appellate court was likewise of the opinion that the

State’s Attorney’s office had knowledge of the deaths when

the traffic charge was prosecuted. Thus all the require-

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

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:

‘«* * * 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 England, 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 E. Coke, Institutes 212-13 (1797) ; J. Sigler,

Double Jeopardy: The Development of a Legal & Social

Policy 2-16 (1969).

In determining whether multiple actions are 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. Ed. 2d 187, 97 S. Ct..2221, prosecution and pun-

ishment for joyriding—taking an automobile without the

owner’s permission—prohibited prosecution and punish-

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. Jt

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 sec. 1051 (8th ed. 1892) ;

Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-

269 (1965). The principal question in this case is

whether auto theft and joyriding, a greater and lesser

included offense under Ohio law, constitute the ‘same

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

sis added.) 432 U.S. 161, 164, 53 L. Ed. 2d 187, 198,

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 Jn re Nielsen (1989), 131 U.S. 176, 33 L.

Ed. 118, 9 S. Ct. 672, where it was observed:

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

victed for a crime which has various incident 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), 482 U.S. 161, 53, L. Ed. 2d 187,

97 S. Ct. 2221, exemplifies the meaning of the test to de-

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 guil

ty of

the included offense of reckless homicide. agian

(1) Involuntary manslaughter is a Class 3 fel-

ony.

(2) Reckless homicide is a Class 4 felony.”

Rev. Stat. 1973, ch. 38, par. 9—3. a ile

The issues in reckless homicide are: Did the defendant

cause death by driving a motor vehicle? Did the defend-

ant drive the motor vehicle recklessly? Did the defendant

drive the motor vehicle in a manner likely to cause a 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).

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 fact that the speed of a vehicle

does not exceed the applicable maximum speed limit

does 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.”’ (Emphasis added.) Ill.

Rev. Stat. 1973, ch. 95-%4, 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 Il. App.

3d 539, 542; People v. Bembroy (1972), 4 Ill. App. 3d 522,

525.) It is a species of violation of duty. Tll. Rev. Statfl

1973, ch. 38, par. 46; People v. Potter (1955), 5 Ill. 2d

365, 368.

As is usually the situation between greater and lesser

included offenses, the lesser offense, failing to reduce

speed, requires no proof beyond that which is necessary for

conviction of the greater, involuntary manslaughter. 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), 432 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), 432 U.S. 161, 53 L. Ed.

2d 187, 97 S. Ct. 2221; In re Nielsen (1889), 131 U.S. 176,

33 L. Ed. 118, 9 S. Ct. 672.) Here it is irrelevant of what

offense, failing to reduce speed or involuntary 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 convic-

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), 397U.8.436, 442-43, 95 L. Ed.

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

free 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), 432 U.S. 161, 165, L. Ed. 2d 187, 193, 97 S.

Ct. 2221, 2225.

For 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 inflected 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 v. 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 protection 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.

This court recently considered whether subsequent prose-

cutions for aggravated battery and attempted murder were

A10

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?” In a similar vein we quoted from the

opinion of the Supreme Court in Brown v. 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 occasion 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 overlay in the proof offered

to establish the crimes.’ * * *” Jannelli 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

Ill. 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 car. In short the

traffic violation was not a lesser included offense of the

manslaughter charges upon which the wardship proceed-

ings are predicated, and therefore the latter do not fall

within the admonition of Brown that ‘‘Whatever the se-

quence may be, the Fifth Amendment forbids successive

prosecution and cumulative punishment for a greater and

lesser included offense.” (432 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, involuntary manslaughter’’ (slip op. at 5) is, of

course, simply not correct, for, as above stated, proof of

manslaughter need not involve a car 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 commit-

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

brace the lesser, notwithstanding that in the particular

Al2

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

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 * * *.” (Emphasis

added.) (Brown v. Ohio (1977), 432 U.S. 161, 168, 53 L.

Ed. 2d 187, 195-196, 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 offense. 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 eonviction 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.

Al3

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

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

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 Ill. 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, 357), although defendant’s activity was in

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

34 Ill. 2d 199; People v. Higgins (1957); 86 Ill. App. 2d

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

Following Glickman, the legislature defined an included

offense in section 2—9 of the Criminal Code:

‘‘Tneluded 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 to commit the offense

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

Stat. 1975, ch. 38, par. 2—9.)

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

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

is applied although the facts presented in the particular

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

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

Al4

The essence of the “same evidence’’ 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 cf American jurisdictions, has been restated by

various American courts. In Comment, Twice in Jeopardy,

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

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

not the same unless defendant could have been convicted

of the second offeuse 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 Iowa, 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), 223 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.E. 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

Al5

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 hymicide 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 Virain 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

Iannelli v. United States, 420 U.S. 770, 785 n. 17, 995

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.’