APPEAL from the Circuit Court of Kankakee County; the Hon.
WAYNE P. DYER, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 11, 1974.
Alexander Lewis Woodall, the defendant, was indicted by a grand jury of Kankakee County for the offenses of burglary and armed robbery. After trial by jury the defendant was found guilty of both offenses. Thereafter the defendant perfected an appeal to this court which reversed the judgment of conviction of the circuit court of Kankakee County and ordered the case remanded for a new trial. (See People v. Woodall, 131 Ill. App.2d 662, 264 N.E.2d 303.) The defendant was again tried before a jury and on October 21, 1971, the jury returned a verdict of guilty as to the offenses of burglary and armed robbery as charged in the indictment.
On October 27, 1971, the defendant in a post-trial motion moved for judgment notwithstanding the verdict and in the alternative for a new trial. After hearing on the motion the trial court denied the motion for judgment notwithstanding the verdict but ordered a new trial. Thereafter on April 3, 1972, the defendant filed a motion to dismiss the indictment on the ground the defendant had been placed in prior jeopardy by his trial on the indictment. The trial court entered an order dismissing the indictment and an appeal by the People is taken from that order.
It is the contention of the People that the trial court exceeded its powers in ordering a dismissal of the indictment and that the trial court's order granting the defendant a new trial did not have the effect of placing him in double jeopardy as the result of having undergone a previous trial in which a judgment guilty verdict was entered and a conviction imposed thereon.
It should be noted that after the defendant's first conviction which was reversed and his case remanded by this court, that among the grounds for such reversal it was stated by this court that "where from the entire record there is a reasonable doubt as to the guilt of accused judgment of conviction should not be permitted to stand." (See People v. Woodall, 131 Ill. App.2d 662, 264 N.E.2d 303.) As we have stated, the instant appeal results from conviction of the defendant after a retrial and the People appeal from an order of the trial court striking the indictment. Again it should be noted that the trial judge predicated this action upon his determination that the evidence adduced during trial was insufficient to warrant a conviction.
The pertinent facts relating to the offenses of armed robbery and burglary allegedly committed by the defendant were set forth by this court in People v. Woodall, 131 Ill. App.2d 662, 264 N.E.2d 303. In a memorandum filed by the trial court after the defendant had been retried the trial judge noted that in this court's opinion reversing the defendant's first conviction several discrepancies and inconsistencies in the evidence were noted but that this court did not consider the evidence totally insufficient to convict and that therefore there was a remandment with directions for a new trial. In the same memorandum the trial court made the observation that the People's case was stronger in the first trial than it was in the second. We do not deem it necessary to make an analyzation of the evidence adduced during the second trial, but it is suffice to say that from the record it is clear that the trial court's observation was correct. In regard to identification of the defendant as being the robber or burglar the record is fraught with inconsistencies and discrepancies.
In dismissing the indictment against the defendant on the grounds of double jeopardy the trial court relied upon as authority to do so section 3-4 of our Criminal Code:
"(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or * * *. Ill. Rev. Stat. 1971, ch. 38, sec. 3-4(a)(1).
For authority to dismiss the indictment against the defendant the trial court relied upon section 114-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114-1). This statutory provision sets forth 10 grounds upon which a trial court may dismiss an indictment against a defendant. In the instant case it is apparent that subsection (a)(2) of this statutory provision was relied upon by the trial court when the order was entered dismissing the indictment against the defendant. That subsection provides as follows:
"(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(2) The prosecution of the offense is barred by Sections 3-3 through 3-8 of the `Criminal Code of 1961', approved July 28, 1961, as heretofore and hereafter amended;" ...