Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendants, Donald Somerville and Marjorie Kullerstrand, were indicted on November 3, 1965. The indictment charged that on March 24, 1963, they had committed the offense of theft *fn1 in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the said property to have been stolen by another, and intending to deprive said Zayre of Bridgeview, Inc., permanently of the use and benefit of said property, in violation of chapter 38, section 16-1 (d) of the Illinois Revised Statutes (1963).
The case was tried before a jury and a verdict was returned finding defendants guilty. Donald Somerville was sentenced to 2 to 10 years in the penitentiary, and Marjorie Kullerstrand was placed on probation for three years. In this court the defendants urge:
1) That they were twice put in jeopardy for the same offense;
2) That the State improperly suggested the existence of damaging evidence by means of cross-examination, but failed to impeach the denials of the defendants;
3) That the State improperly presented evidence outside the scope of cross-examination impugning the morals of the defendants.
A previous indictment had been returned against the defendants on March 19, 1964, which indictment charged them with committing the offense of theft on March 24, 1963, in that they knowingly obtained unauthorized control over stolen property, to wit: $1,300 in United States currency, the property of Zayre of Bridgeview, Inc., knowing the same to have been stolen by another in violation of chapter 38, section 16-1(d), Ill Rev Stats 1963.
A jury trial was commenced on the first indictment and twelve jurors were duly impaneled and sworn on November 1, 1964, after which the trial was continued to the next day. On November 2, the State's Attorney moved for a mistrial and to nolle prosse on the ground that the indictment did not allege a crime and was therefore void. The court granted the State's motion over defendants' objection. A juror was withdrawn from the box and a mistrial declared.
On November 3, 1965, a second indictment was returned, charging the defendants with the offense of theft on March 24, 1963, as set forth above. Defendants were arraigned on the second indictment on November 16, 1965. Thereupon, the defendants filed a motion to dismiss the indictment on the grounds that they had previously been indicted on March 19, 1964; that a jury was selected and sworn to try the issues; and that "on November 2, 1965 the State made a motion to Nolle Prosse said indictment which was sustained over the objection of your petitioner." The motion further recited: "4. That the only difference between indictment 64-916 and indictment 65-3017 is that the words `intends to deprive the owner permanently of the use . . . property' have been added to the latter indictment." The court denied the motion.
Before us defendants argue that since the trial was commenced under the first indictment (64-916) and a jury impaneled and sworn, the defendants were thereby placed in jeopardy, and consequently the court must discharge them. In their brief defendants state:
"Sec 3-4(a)(3), Chap 38 states that `A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution . . . (3) was terminated improperly after the jury was impaneled and sworn . . .'" (Emphasis added.)
In order to have the statute apply it is necessary that the first prosecution be terminated improperly. In the Notes in Smith-Hurd Annotated Statutes to the section in question the statement is made:
"The point at which jeopardy attaches in a jury trial is generally considered to be that at which, in a court of competent jurisdiction and upon a valid indictment or information, the defendant has been arraigned and ...