APPEAL from the Circuit Court of Sangamon County; the Hon.
PAUL C. VERTICCHIO, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The defendant-appellant, Horace H. McCollough was charged, in a two-count indictment, with the crimes of involuntary manslaughter and reckless homicide. There was no severance and he was tried on both counts of the indictment in a bench trial, at the conclusion of which the trial judge found the defendant not guilty of involuntary manslaughter but guilty of reckless homicide and admitted the defendant to probation for a period of six months. Defendant appeals from the conviction.
Count II of the indictment reads as follows:
"Horace H. McCollough committed the offense of Reckless Homicide in that he did then and there recklessly with a willful and wanton disregard for the safety of Evan R. Lloyd III, a five-year-old child, increase the speed of the motor vehicle he was driving as he proceeded southbound approaching the intersection of MacArthur Street and Laurel Street, Springfield, Illinois, in violation of his duty to decrease speed when approaching an intersection; and at a time when special hazard existed with respect to pedestrians, to wit: a group of children gathered by the southwest corner of the said intersection at a crosswalk, said special hazard imposing a further duty to reduce speed of his said motor vehicle; and failed to exercise due caution to avoid colliding with the said child upon the roadway at the said intersection, and did collide with the said child; and did then and there kill the said Evan R. Lloyd III, without lawful justification, in violation of the Criminal Code of 1961, as amended, Section 9-3, and against the peace and dignity of the same people of Illinois."
Count I of the indictment was verbatim with Count II except in the opening sentence of Count I the words "offense of involuntary manslaughter" appear where the word "offense of reckless homicide" appear in the opening sentence of Count II.
The defendant urges that the judgments of the Court are fatally inconsistent, that the evidence did not establish defendant's guilt beyond a reasonable doubt and that "* * * having been first found not guilty of involuntary manslaughter the defendant was placed in double jeopardy since the judgment of not guilty did not at the same time find him guilty of reckless homicide."
• 1 Defendant's argument that he was placed in double jeopardy seems to be founded upon the premise that the trial judge in making his findings, first pronounced defendant not guilty on Count I of the indictment and then pronounced the defendant guilty on Count II. Had the counts been severed and tried separately there would have been merit to this contention. Under the authority of People v. Hairston, 46 Ill.2d 348, 357, 263 N.E.2d 840, the single, simultaneous prosecution here "* * * forecloses any claim of exposure to double jeopardy".
We have examined the record and, while the evidence is, on some points, in conflict, it is sufficient to support defendant's conviction of reckless homicide. Since we reverse on other grounds it would unduly prolong this opinion to detail the testimony.
The question of the constitutionality of ch. 38, sec. 9-3 Ill. Rev. Stat. 1971, was not raised in the trial court nor in the briefs in this Court. We reach the question as to whether or not the statute under which defendant was convicted is unconstitutional under the doctrine of plain error now embodied in Supreme Court Rule 615(a). The provisions of the statute are as follows:
"Sec. 9-3. Involuntary Manslaughter and Reckless Homicide.
(a) 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.
(b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.
(1) A person convicted of involuntary manslaughter shall be imprisoned in the ...