Appeal from the Circuit Court of Vermilion County; the Hon.
PAUL M. WRIGHT, Judge, presiding. Affirmed.
On March 31, 1964, the defendant, Frank Piatt, was arraigned in the trial court on an information charging the offense of drag racing in violation of a cited section of the State statute. The defendant entered a plea of not guilty. On the date the cause was set for trial, but before the jury was empaneled or any witnesses sworn, the State moved to amend the information to charge the offense of reckless driving. The motion to amend was denied.
The State then moved to dismiss the charge of drag racing and the same was dismissed.
On the following day, another information was filed charging the defendant with reckless driving. The defendant moved to dismiss the second information on the grounds that the offense charged arose out of the same conduct for which the defendant had earlier been charged with drag racing. The defendant's motion to dismiss was allowed and the State has prosecuted this appeal.
Sec 3-3 of the Criminal Code of 1961 provides: (Ill Rev Stats 1961, c 38)
"(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 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 required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately."
There is no controversy here but that the charge of drag racing and the charge of reckless driving are based on the same conduct of the defendant. It is the position of the State that jeopardy had not attached on the drag racing charge, and therefore the subsequent reckless driving prosecution was not barred. It is further contended that the dismissal of the drag racing charge will not bar another prosecution for the same offense and that the word "prosecution," as used in the quoted section of the Criminal Code means not only the filing of an information or the return of an indictment but also includes final disposition of the case by a judgment or verdict and any review thereof by appeal.
In the case of People v. Watson, 394 Ill. 177, 68 N.E.2d 265, an indictment for burglary against the defendant was dismissed before trial and subsequently reinstated. In a review of the conviction, the Supreme Court held that the earlier dismissal was not a final disposition, and at page 179 stated:
"`A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense . . .' . . . If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense."
The Watson case was concerned with the question of jeopardy as was the case of People v. Flaherty, 396 Ill. 304, 71 N.E.2d 779. The last cited case, in discussing the constitutional prohibition against double jeopardy, is authority for the proposition that when the same act or same wrongful conduct constitutes separate and distinct offenses, prosecution may be had and the constitutional prohibition against double jeopardy is not violated.
Section 3-3 of the Criminal Code of 1961 is not a mere statutory enactment the same as the constitutional guaranty against double jeopardy. It is rather a statutory enactment of mandatory or compulsory joinder of offenses which arise out of the same act or conduct of the defendant. It has no application when the same conduct offends against two separate sovereigns, nor is it applicable to prohibit separate prosecutions for a series of acts each resulting in a criminal offense and interrelated one with the other but, nevertheless, separate and substantial crimes.
Section 3-3 is obviously a departure from the common law with reference to joinder of offenses which was in certain instances permissive only. This substantial change was an enactment of mandatory or compulsory joinder of offenses which arise out of the same conduct and which are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court. This legislation is clear and unambiguous. We are not, therefore, required to search for the legislative intent nor to apply the rules of statutory construction ordinarily used in ascertaining intent. A full and ...