Appeal from the Circuit Court of Jackson County; the Hon.
EVERETT PROSSER, Judge, presiding. Judgment reversed.
The defendant, Ernest "Ned" Higgins, was indicted by the Jackson County Grand Jury for the offense of involuntary manslaughter. A trial by jury followed. At the close of all the evidence, the People tendered and the court gave the jury forms of verdict for the offense of involuntary manslaughter, aggravated battery and battery. The jury returned a single verdict, finding the defendant guilty of the offense of aggravated battery. The court, thereafter, entered judgment on the verdict and sentenced the defendant.
The defendant contends that the verdict must be reversed in that such a verdict was an acquittal for the offense of involuntary manslaughter and battery, and that aggravated battery is not an included offense of involuntary manslaughter. It is the opinion of this court that the theory of the defendant must be sustained.
The indictment charged the defendant with the offense of involuntary manslaughter in the language of the statute. The statute provides that "A person who kills an individual without lawful 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." Chapter 38, § 9-3(a), Ill Rev Stats 1965. The jury was so instructed.
The court also instructed the jury that "the crime involuntary manslaughter includes the lesser offense of aggravated battery, therefore, if you should find that the evidence in this case is insufficient for a verdict of `guilty of involuntary manslaughter,' then you shall consider the sufficiency of the evidence for a verdict of aggravated battery." The jury was also instructed that ". . . involuntary manslaughter includes the lesser offense of battery . . ." The jury was then instructed as to the statutory definition of aggravated battery and battery. The statute provides: "A person who in committing a battery intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated battery. . . ." Chapter 38, § 12-4, Ill Rev Stats 1965. "A person commits battery if he intentionally or knowingly, without legal justification and by any means (1) causes bodily harm to an individual . . ." Chapter 38, § 12-3, Ill Rev Stats 1965.
[1-3] For an offense to be a lesser offense, and be included within another offense which is greater, it is necessary that the greater offense include every element of the lesser offense plus other elements. As stated by the Supreme Court in the early case of Prindeville v. People, 42 Ill. 217, 220 (1866):
"And, from all the authorities, we are satisfied, that the general rule is, that, where a higher and more atrocious crime fully embraces all of the ingredients of a lesser offense, and when the evidence requires it, the jury may convict of the latter. Where, to convict of the higher offense the prosecutor must prove every fact necessary to constitute the smaller offense, together with the additional fact which makes it the higher offense, before he can have a conviction, then the jury, if the facts warrant it, may convict of the less offense."
This holding has been reaffirmed in the recent case of People v. King, 34 Ill.2d 199, 200, 215 N.E.2d 224 (1966).
"We agree with defendant that to permit conviction for a lesser offense on an indictment charging only a greater offense, all of the elements of the lesser must be included within the greater. People v. Glickman, 377 Ill. 360; Prindeville v. People, supra. This requirement is a substantial one designated to protect the defendant from exposure to double jeopardy."
Involuntary manslaughter involves not only the additional element of death but a distinctive mental state that is less culpable than that required by aggravated battery. Involuntary manslaughter involves only the mental state of "recklessness" under § 9-3(a) of the Criminal Code, while aggravated battery under § 12-4(a) of the Criminal Code involves the mental state of intent or knowledge.
The Criminal Code provides for the particular mental states necessary for the various offenses. A perusal of the Code reveals a variety of mental states differing in degree of culpability for the various offenses. Article 4 of the Code defines these mental states. Section 4-4 defines the mental state of "intent"; section 4-5 the mental state of "knowledge" and; section 4-6 the mental state of "recklessness." As outlined above, the offense of involuntary manslaughter involves the mental state of recklessness. Section 4-6 provides that a person is reckless ". . . when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow described by the statute defining the offense; and such disregard constitutes a gross deviation from the standards of care which a person would exercise in the situation."
The offense of aggravated battery involves the mental state of intent or knowledge. Section 4-5 provides that a person acts knowingly of "The result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct." A person acts intentionally as provided by section 4-4 "when his conscious objective or purpose is to accomplish that result or engage in that conduct."
It is apparent from these definitions that offenses involving the mental state of "intent" or "knowledge" requires a higher degree of mental culpability than an offense involving the mental state of "recklessness." "Recklessness" is a mental state involving criminal liability of a degree below that of intent or knowledge. To act recklessly falls short of acting intentionally. People v. Ford, 56 Ill. App.2d 153, 206 N.E.2d 105 (1965). The offender may act recklessly but without the intent to inflict injury or death and still be guilty of involuntary manslaughter. Involuntary manslaughter is an offense which happens without the intent to inflict injury and death results from acts performed recklessly. People v. Johnson, 54 Ill. App.2d 27, 36, 203 N.E.2d 283 (1964).
The closest case in Illinois, involving facts substantially similar to those in the case at bar, is the case of People v. Asbury, 272 Ill. 571, 112 N.E. 289 (1916). In that case, the defendant was indicted for manslaughter. After the evidence was heard, the court instructed the jury that the greater offense of manslaughter included the lesser offense of assault with a deadly weapon with intent to inflict bodily harm. The defendant was convicted of the greater offense of manslaughter and not on the lesser offense of assault with a deadly weapon. The Supreme Court affirmed the conviction on the greater offense, (not on the lesser as here), but in so doing had this to say about the instruction relating to the lesser offense, at page 576 of the opinion:
"This instruction was wrong. The offense of manslaughter, wherein the intent is not necessary to the crime, does not include the offense of assault with a deadly weapon with intent to inflict bodily injury, wherein the intent is essential. It should not have been given, but it did no ...