Appeal from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding. Affirmed in part, reversed in
This case is heard upon appeal by the State, and cross-appeal by the defendants arising under the following circumstances:
On June 25, 1963, Indictment No. 2213-63 was returned charging the defendants with the rape of a fourteen-year-old girl. On arraignment the defendants pleaded not guilty. A jury trial was commenced on December 9, 1963, and on December 15, 1963, the trial court declared a mistrial for the reason that the jury was unable to agree and the jury was discharged. On the same date the court granted a motion of the state's attorney that the cause be set for jury trial on January 6, 1964.
On the 17th day of January, 1964, upon motion of the State and without notice to any defendants or their counsel, the above cause was dismissed by the court. On the same day the Sangamon County Grand Jury returned Indictment No. 87-64 consisting of six counts and jointly charging the same defendants with rape, indecent liberties with a child, and contributing to the sexual delinquency of a child, these charges stemming from the same alleged conduct as that which formed the basis of Indictment No. 2213-63. No facts in addition to the facts known by the prosecution at the time of the return of the original indictment were known by the prosecution at the time of the return of the second indictment. The State did not ask the grand jury returning the first indictment to indict for taking indecent liberties with a child or contributing to the sexual delinquency of a child.
On the 24th day of January, 1964, in Cause No. 87-64, the three defendants filed a motion to dismiss the new indictment. On April 1, 1964, Howard L. White, Associate Circuit Judge of Jersey County, Illinois, dismissed those counts of the indictment charging taking indecent liberties with a child and contributing to the sexual delinquency of a child, but denied the defendants' motion for dismissal as to the charge of rape.
The State appeals the trial court's allowance of defendants' motion to dismiss Counts III through VI charging the offenses of taking indecent liberties with a child and contributing to the sexual delinquency of a child. The defendants cross-appeal from the order of the court denying the motion to dismiss Counts I and II of said indictment.
The State contends that the dismissal of Counts III through VI of Indictment No. 87-64 upon the motion of the defendants applies a literal interpretation of Section 3-3 of the Criminal Code and that such interpretation founds and fosters technical rules in the prosecution of criminal cases. Moreover, it is urged that inasmuch as the defendants could properly again be tried upon Indictment No. 2213-63 following the mistrial, they suffered no prejudice and no hardship through piecemeal prosecution.
We are called upon to consider the intent of the Legislature in adopting the language of Article 3, Section 3, of the Criminal Code of 1961, (Ill Rev Stats 1961, c 38, § 3-3), which includes the following:
"(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the 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."
The Criminal Code of 1961 was adopted by the Legislature following a long period of study by eminent lawyers and legal scholars. The published comments regarding the various Articles and Paragraphs thereof, of those who drafted the legislation and presented it to the Legislature, deserve consideration in the interpretation of the intent contained in the Code.
The committee which drafted Article 3 adopted by the Legislature, in its comment states that the Article provides:
". . . certain fundamental rights which have been established for the protection of a person accused of an offense. . . ."
This committee further states that Paragraph 3 of Article 3 deals with the "`compulsory joinder' of offenses which have certain close interrelationships." This compulsory joinder is stated to be designed to provide a substantive protection of a defendant in those situations in which more than one offense is found to arise out of the same conduct or act, and the defense of double jeopardy is not available.
It is clear that the language of the Statute gives a greater protection to the defendant than that heretofore existing under the doctrine of former jeopardy and constitutes a major change in the law. (Bowman, The ...