Writ of Error to Circuit Court of Stephenson county; the Hon.
HARRY E. WHEAT, Judge, presiding. Reversed and remanded with
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
A jury in the Circuit Court of Stephenson County found the defendant, Kenneth Koning, guilty of reckless homicide and further by its verdict fixed his punishment at imprisonment in the county jail for a term of six months and assessed a fine of $500.
The defendant made application for probation and on September 14, 1956, the court entered an order releasing the defendant on probation for a period of two years upon the conditions that he pay a fine of $750 and serve sixty days in the county jail. The defendant paid the fine and served the term. Thereafter, on December 18, 1956, the court after a hearing on the people's petition to revoke probation, found that the defendant had violated the terms of his probation and entered judgment and imposed a sentence of one to five years in the Illinois State Penitentiary upon the original conviction. Defendant's motion to reduce the sentence to that fixed by the jury's verdict was denied.
From the Circuit Court's judgment the defendant brought this case to the Supreme Court by writ of error. The Supreme Court transferred the cause to this court for want of jurisdiction. Section 15, division XVI of the Criminal Code (Ill. Rev. Stat. 1955, Chap. 38, par. 798), People v. Kostaken, 10 Ill.2d 549, 141 N.E.2d 44.
Neither party has cited nor have we been able to find any authority dealing with the precise question presented by this writ of error and we believe the instant case poses a question of first impression in Illinois.
Section 146a of division II of the Criminal Code, (Ill. Rev. Stat. 1955, chap. 38, par. 364a) fixes the limits of punishment for one found guilty of the offense of reckless homicide and provides, ". . . Any person convicted of reckless homicide shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1000), or by imprisonment in the county jail for a determinate period of not less than sixty (60) days and not more than six (6) months, or by both such fine and such imprisonment, or by imprisonment in the penitentiary for an indeterminate period of not less than one (1) year or more than five (5) years."
The fixing of punishment, sentence and method of imposition in criminal cases is controlled by Section 6a of division XIV of the Criminal Code. (Ill. Rev. Stat. 1955, chap. 38, par. 754a.) That section states in part, "(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. . . ."
Defendant contends that the imposition by the trial court of a sentence in excess of the limits of punishment fixed by the verdict constitutes placing the defendant twice in jeopardy for the same offense in violation of Section 10 of article II of the Illinois Constitution and cites as authority therefore People v. Siman, 284 Ill. 28, 119 N.E. 940.
In the Siman case the defendant was found guilty of an attempted petit larceny and his punishment was fixed at five months incarceration in the house of correction and a fine of one dollar.
The statutory penalty for attempted petit larceny provided for a fine not exceeding $300 or imprisonment in the county jail not exceeding six months.
Siman paid the fine and while incarcerated by virtue of the jail sentence brought an original petition for writ of habeas corpus in the Supreme Court seeking his release.
That court in releasing the relator held that the trial court might have imposed either the penalty of imprisonment or the fine but not both, and by imposing two valid punishments had violated the constitutional provision that one cannot be twice placed in jeopardy and punished for the same offense. To like effect, Ex parte Lange, 18 Wall. (85 U.S.) 163.
The Siman case is no authority for the instant case as we are not here confronted with two valid sentences placing a defendant in double jeopardy, nor has defendant again been placed on trial for the same offense.
It is next urged by the defendant that the trial court's failure to continue the cause by formal order entered of record at the time of releasing defendant on probation resulted in the complete loss of ...