APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE CULBERTSON DELIVERED THE OPINION OF THE COURT:
By separate indictments returned to the circuit court of Cook County, defendant, Eugene Hairston, was charged under a statutory theory of accountability with the murder of Leo McClure and with the attempted murders of Theodore Newsome and Dorocher Berrien. In still other separate indictments, he was charged with having solicited Dennis Jackson to commit each of the principal crimes. Upon being tried by a jury defendant was found not guilty of the charges of murder and attempted murder, but was found guilty of the charges of solicitation and was sentenced to the penitentiary for a term of 5 to 15 years on each charge, the sentences to run concurrently. He has appealed, advancing numerous grounds for reversal, several of which present constitutional questions that serve to give us jurisdiction to entertain the appeal.
It is undisputed that 13-year-old Dennis Jackson, at about 3:15 P.M. on September 12, 1967, fired six shots from a revolver into a parked automobile in which McClure, Newsome and Berrien were sitting, wounding the latter two and killing the former. Just prior to the firing of the shots Jackson was heard to say to the men in the car: "I heard you was messing with the chief." Present in the immediate vicinity of the auto were Robert Dancy, Marvin Martin and Sanders Martin, boys ranging from 13 to 15 years of age, and Paul Martin, a young adult who was jointly indicted with defendant on all charges but tried separately. All of the persons last named, and Jackson as well, were affiliated with an organization known as the Blackstone Rangers. According to the testimony of Marvin Sanders, defendant, in his early twenties, was the self-styled "Chief" of the organization, while Paul Martin was the leader of a group within the organization which "kept order." Generally speaking, it was the thrust of the prosecution's theory and proof that Jackson had done the shooting as the result of an "order" emanating from defendant in his capacity of "chief." By the version of one witness, defendant is purported to have said that the order had issued because the men in the car were trafficking in narcotics and taking money out of the neighborhood.
Defendant was arrested on September 21, 1967, and was held in custody continuously until tried on May 15, 1968. A motion for his discharge was filed February 18, 1968, based upon the statute which implements the constitutional guarantee of a speedy trial by providing that one in custody for an offense shall be tried "within 120 days from the date he was taken into custody unless delay is occasioned by the defendant." (Ill. Rev. Stat. 1967, ch. 38, par. 103-5.) The motion was denied, however, on the ground that a delay and continuance of trial had been occasioned by defendant on January 19, 1968, (the 119th day after he had been taken into custody,) which caused the statutory period to run anew from January 29, 1968. More specifically, the record shows that defendant's counsel was engaged in another trial on January 19, that defendant declined a proposition that an associate of his counsel be permitted to start the trial, although the associate had participated extensively and capably in involved pretrial proceedings, and that this combination of circumstances necessitated a continuance of 10 days. Defendant now contends that such delay was improperly and arbitrarily charged to him, inasmuch as he was put in the dilemma of having to choose between his right to a speedy trial and the right to be represented by counsel of his choice, and that under a proper construction of the implementing statute, the running of the 120-day period should merely have been held in abeyance from January 19 until such time as his chief counsel could appear for trial, rather than caused to run anew from the continued date.
We find no merit in either contention. As to the latter, the implementing statute and its predecessors have been repeatedly and consistently construed to mean that a delay occasioned by an accused is a waiver of the right to be tried within the statutory period, and that the period starts to run anew from the date to which the cause has been continued because of such delay. (People v. Kuczynski, 33 Ill.2d 412; People v. Rankins, 18 Ill.2d 260; People v. Hartman, 408 Ill. 133; People v. Stillman, 391 Ill. 227; Dougherty v. People, 124 Ill. 557.) It is axiomatic that where a statute has been judicially construed and the construction has not evoked an amendment, it will be presumed that the legislature has acquiesced in the court's exposition of the legislative intent. Republic Steel Corp. v. Industrial Com., 26 Ill.2d 32; Bell v. South Cook County Mosquito Abatement Dist., 3 Ill.2d 353; Consumers Co. v. Industrial Com., 364 Ill. 145.
As to the first contention, a complete and careful reading of the transcript of the pretrial proceedings and activities involved, leaves us with an abiding conviction that any "dilemma" was largely of defendant's own creation; that there were several delays prior to January 19 which were occasioned by defendant; that the prosecution was ready for trial as early as November 21, 1967; and that it was an election by defendant's counsel to have a hearing on a petition for bail (filed November 21, 1967) take precedence over trial, which was the greatest source of delay. But we need not elaborate upon the foregoing matters to arrive at a conclusion that the trial court acted neither arbitrarily nor improperly in charging the delay of January 19 to defendant. It is sufficient to say that where, as here, a continuance or delay in trial is occasioned because the counsel of an accused is engaged elsewhere, it is a delay properly charged to the accused. (Cf. People v. Mueller, 2 Ill.2d 311; People v. Faulisi, 34 Ill.2d 187.) To hold to the contrary, in our opinion, would be incompatible with the letter and spirit of the implementing statute and would serve only to provide a weapon with which the administration of criminal justice could be avoided or unduly harassed. It is true, as defendant argues, that one charged with a crime has a constitutional right both to a speedy trial and to be represented by the counsel of his choice, where he has in fact retained counsel; however, the mere fact that a defendant is not tried within the 120-day period fixed by the implementing statute, due to the unavailability of his retained counsel, does not bring the two constitutional rights in conflict or put an accused in the position of having to elect between rights. While the 120-day statute implements the constitutional right to a speedy trial, it is not coextensive with, or the precise equivalent of, the right. (People v. Love, 39 Ill.2d 436, 443; People v. Stuckey, 34 Ill.2d 521, 523.) Furthermore, both constitutional rights were designed for the protection of the accused, and it could not have been intended that one could be played against the other in order to provide an avenue to escape prosecution, which is the result for which defendant contends in this case.
A trial started on May 8, 1968, ended in a mistrial due to unfavorable publicity which had come to the attention of the jurors, and as a consequence there was a delay until May 15, 1968. It is next contended by defendant, over and above his claim based upon the statute, that he was deprived of his constitutional right to a speedy trial and is thus entitled to discharge. He complains in particular of two continuances granted to the prosecution subsequent to January 29, 1968, which, he states, were given without cause or explanation. While we entertain some doubt that this issue was properly raised in the trial court and preserved for review, (see People v. Bonds, 32 Ill.2d 94,) we have examined the record and find it to be without merit. The right to a speedy trial guaranteed to an accused by the constitution is protection only against delay that is arbitrary, unreasonable and oppressive, (People v. Hamby, 27 Ill.2d 493; People v. Stillman, 391 Ill. 227,) and, as we recently observed in People v. Love, 39 Ill.2d 436, 442: "An important circumstance is whether there is a likelihood, or at least a reasonable possibility, that the accused has been prejudiced by the delay." No claim is made by defendant that he was prejudiced by the delays in question, nor do we perceive a reasonable possibility that such was the case. And any fair appraisal of the record does not permit a conclusion that the delay between January 29 and May 8, 1968, was arbitrary, unreasonable or oppressive. While the prosecution was granted two continuances, both of which were for just cause and fully explained, it appears that a good portion of the delay was occasioned by the unavailability of a judge or courtroom in which to hear the case due to overcrowded dockets.
By the indictments returned against defendant, the State sought to convict him of Jackson's acts of murder and attempted murder on an accountability theory under section 5-2 of the Criminal Code of 1961, which provides in pertinent part: "A person is legally accountable for the conduct of another when: * * * (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." (Ill. Rev. Stat. 1967, ch. 38, par. 5-2; emphasis defendant's.) In addition, arising out of the same act of defendant, the State sought to convict him of crimes of solicitation under section 8-1 of the Code which states: "A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense." (Ill. Rev. Stat. 1967, ch. 38, par. 8-1.) The jury, as we have said, acquitted defendant of the principal offenses, but found him guilty of having solicited Jackson to commit those offenses. Based upon the statutory language above quoted, defendant urges that the crime of solicitation merges with the principal offense if the latter offense is in fact committed, and on this basis contends that his acquittal under the charges of murder and attempted murder operates as a bar to his conviction under the charges of solicitation.
The entire Criminal Code and each of its sections must be considered in determining the legislative intent, (People v. Touhy, 31 Ill.2d 236,) and, when this is done, we must reject the construction for which defendant contends. Solicitation is an inchoate offense, and it is provided in section 8-5 that: "No person shall be convicted of both the inchoate and the principal offense." (Ill. Rev. Stat. 1967, ch. 38, par. 8-5.) And in the "Comments" of the committee which drafted the Code, a source we may properly consider in seeking the legislative intent, (People v. Touhy, 31 Ill.2d 236,) it is said in respect to section 8-5: "By virtue of the definition of `conviction', this means that prosecution may be had for both offenses in the same trial (by separate counts) or separately. But after proceeding finally to a verdict of guilty on one or both, the judgment of conviction and sentence shall be entered on only one offense. In effect, this will apply only to solicitation and conspiracy since they are not included offenses of the principal offense which is their object." (Smith-Hurd, Ill. Anno. Stat., ch. 38, par. 8-5, p. 391.) Again, it was stated by the drafting committee in regard to the crime of solicitation as defined in section 8-1: "Specific intent that the principal offense be committed is required, and the offense of solicitation is complete when the principal offense is commanded, encouraged or requested with that intent." (Smith-Hurd, Ill. Anno. Stat., ch. 38, par. 8-1, p. 307.) By way of contrast, the principal crimes here, murder and attempted murder, were not complete, and defendant could not be legally accountable therefore, until such time as the murder and attempted murders were committed. Having specifically spelled out that solicitation is a separate and distinct crime, punishable and triable as such, the legislature could not have intended that a merger with the principal crimes would be effected as defendant contends.
Bottomed upon a premise that the proof necessary to convict him of the principal crimes was identical with the proof necessary to convict him of solicitation, defendant next contends that the verdicts were inconsistent and that he has been placed in double jeopardy. While we believe the single prosecution here forecloses any claim of exposure to double jeopardy and that the problem is instead largely one of inconsistent verdicts, even if it were considered otherwise it is manifest that the claim of doube jeopardy has no merit. And this is so whether the situation of defendant be tested by the decisions of this court construing our own constitutional guarantee against double jeopardy, (Const. of Ill. 1870, art. II, sec. 10,) or by the judicial construction placed upon the almost identical provision of the fifth amendment to the Federal constitution, the provisions of which have lately been held to be applicable to State criminal proceedings. See Benton v. Maryland (1970), 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056; North Carolina v. Pearce (1970), 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072.
"For a double jeopardy claim to be viable, it must be shown that the two offenses charged are in law and in fact the same offense." (Hattaway v. United States (5th cir. 1968), 399 F.2d 431, 432.) "It is the identity of the offense, and not of the act, which is referred to in the constitutional guaranty against double jeopardy; * * *." (People v. Ciucci, 8 Ill.2d 619, 629, aff'd 356 U.S. 571, 2 L.Ed.2d 983, 78 S.Ct. 839.) Two or more distinct offenses may emanate from the same transaction or act, and we have consistently held that the rule that a person cannot be put twice in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act. (People v. Allen, 368 Ill. 368, 379; People v. Golson, 32 Ill.2d 398, 410-411.) Demonstrating that the same standard applies under the fifth amendment is Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L.Ed. 489, 490, 31 S.Ct. 421, wherein it was said: "A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Along the same lines, it has been frequently manifested that offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although the same acts may be necessary to be proved in the trial of each. Ebeling v. Morgan (1915), 237 U.S. 625, 59 L.Ed. 1151, 35 S.Ct. 710; Blockburger v. United States (1932), 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180; Gore v. United States (1958), 357 U.S. 386, 2 L.Ed.2d 1405, 78 S.Ct. 1280; Hattaway v. United States (5th cir. 1968), 399 F.2d 431; People v. Garman, 411 Ill. 279.
When these tests and principles are applied here, it is obvious that defendant's claim of double jeopardy is unfounded. The crimes charged, viz. solicitation on the one hand and murder and attempted murder on the other hand, were separate and distinct crimes predicated upon different statutes, even though both arose out of the same act of defendant. But whereas proof that defendant had commanded or requested the principal crimes with the requisite intent was all that was necessary to establish his guilt of the crimes of solicitation; to establish his guilt of the principal crimes it was necessary to prove the additional fact that the principal crimes had in fact been committed. While the use of the word "solicit" in the accountability statute would appear to be grammatically out of harmony with its purport, we are constrained to remark that section 5-2 (accountability) and section 8-1 (solicitation) relate to different conduct and as a consequence entail different elements of proof. Section 5-2, in its full context, contemplates an accessorial act which "promotes" or "facilitates" another person in "the planning or commission" of an offense; section 8-1, on the other hand, encompasses only conduct whereby an accused "commands, encourages or requests another" to commit an offense. Accordingly, and for the reasons stated, we conclude that double jeopardy concepts may not be employed to relieve defendant of the consequences arising from his conviction of the solicitation offenses. Cf. People v. Garman, 411 Ill. 279.
During the pendency of this appeal the United States Supreme Court handed down a decision in Ashe v. Swenson, (1970), 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189, the rationale of which is that "collateral estoppel" is embodied in the fifth amendment guarantee against double jeopardy. "Collateral estoppel," as defined in the opinion, "* * * means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (90 S.Ct. 1194.) On leave granted, defendant has filed a supplemental brief urging that the finding of not guilty as to the principal offenses should be held to estop the guilty verdicts returned in respect to the charges of solicitation. But we believe the very statement of the doctrine, or principle, of collateral estoppel is demonstrative of its inapplicability in this case. Defendant was tried for the separate crimes arising from his act in a single proceeding, and thus there was not, and could not be, a relitigation of an ultimate issue of fact previously determined by a valid and final judgment. We see in Ashe, based as it is on the concept that the ...