WRIT OF ERROR to the Circuit Court of Jersey County; the Hon.
CLEM SMITH, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Defendant, Gale M. Tucker, was found guilty of reckless homicide and of driving a motor vehicle while under the influence of intoxicating liquor, by a jury in a trial before the circuit court of Jersey County. He appeals to this court, by way of writ of error, for reversal of that conviction.
The indictment arose out of a collision between defendant's automobile and the rear of a Ford tractor-truck of the type used to pull trailers, which had no trailer attached at the time. Upon hitting the tractor, defendant's car was propelled upward and to the left in such a manner as to cause it to crash upon the top of an automobile approaching from the opposite direction. Three of the four occupants of this approaching vehicle were killed. The defendant was indicted on seven counts. Counts 1, 3 and 5 charged him with reckless homicide by reason of driving his auto while under the influence of intoxicating liquor. Counts 2, 4 and 6 charged reckless homicide by reason of driving his auto at an excessive rate of speed. Count 7 charged the defendant with driving while under the influence of intoxicating liquor.
The jury returned seven general verdicts, each of which referred to a particular count of the indictment. The defendant was found not guilty as to counts 2, 4 and 6 and guilty as to counts 1, 3, 5 and 7. The jury did not fix the punishment or penalty to be suffered by the defendant. Instead, the trial judge entered judgment upon the verdicts of the jury by which he sentenced the defendant to serve from one to five years in the State penitentiary on each of counts 1, 3 and 5 and to pay a fine of $100 on count 7.
Before considering other aspects of the writ of error, we must determine whether there was a valid verdict and sentence. Section 146a of division I of the Criminal Code (Ill. Rev. Stat. 1955, chap. 38, par. 364a) under which the defendant was convicted, provides that any person convicted of reckless homicide shall be punished by a fine of not less than $100 or more than $1000, or by imprisonment in the county jail for a determinate period of not less than 60 days and not more than six months, or by both such fine and such imprisonment, or by imprisonment in the penitentiary for an indeterminate period of not less than one year or more than five years.
In view of the alternative punishment prescribed, the question arises as to whether it was within the province of the court or the jury to fix the penalty. The Parole Act (Ill. Rev. Stat. 1957, chap. 38, pars. 801-816) provides in part:
"§ 2. Except for the crimes enumerated in Section 1 of this Act, the courts of this State, in imposing a sentence to the penitentiary * * * (not including, however, county jail), shall fix the minimum and maximum limits or duration of imprisonment * * *.
"No court of otherwise competent criminal jurisdiction shall be deprived of jurisdiction to sentence and commit * * * for a crime or offense * * * although such crime or offense may also be punishable by other or alternative punishment.
"§ 3. Except for the crimes enumerated in Section 1 of this Act, every person, male or female, over ten years of age, who shall be adjudged guilty of felony, or other crime punishable by imprisonment in the penitentiary, or by imprisonment either in the penitentiary or jail, and as to whom the court shall not have assessed the jail sentence, shall in all cases, except as herein otherwise provided in clauses one and two, be sentenced to the penitentiary, and the court imposing sentence shall fix the minimum and maximum limits or duration of imprisonment."
It is apparent from the quoted portion of the Parole Act that any sentence to imprisonment in the penitentiary, except for offenses enumerated in section 1 thereof, must be pronounced by the court. On the other hand, those offenses punishable by confinement in the county jail are specifically excluded from the operation of the act. The alternative punishment of confinement in the county jail must be considered in the light of section 6a of division XIV of the Criminal Code (Ill. Rev. Stat. 1957, chap. 38, par. 754a) which contains the following language:
"The provisions of [The Parole Act] * * * shall apply to all crimes or offenses herein enumerated to which said Act may be applicable. In all convictions for such crimes or offenses, the fixing of the punishment and the sentence and method of imposition thereof, shall be as therein provided.
"For all crimes or offenses to which the Act cited in the preceding paragraph may not be applicable, the following procedure shall apply:
"(b) When the punishment may be either by imprisonment in the penitentiary, or by confinement in the county jail, with or without fine, if the jury will not inflict the punishment of imprisonment in the penitentiary, it shall, if it finds the accused guilty, fix the time of confinement in the jail, or fine, or both, as the case may require * * *.
"(c) When the accused pleads guilty, and in all other cases not otherwise provided for, the court shall fix the time of confinement, or the amount of the ...