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People v. Mccollough

OPINION FILED MAY 29, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

HORACE H. MCCOLLOUGH, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County; the Hon. Paul C. Verticchio, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT: Rehearing denied June 28, 1974.

One count of an indictment returned against the defendant, Horace H. McCollough, charged him with involuntary manslaughter; the other charged him with reckless homicide. Both counts recited in identical language that the defendant did "recklessly with a willful and wanton disregard for the safety of * * * a five-year-old child, increase the speed of the motor vehicle he was driving * * * and failed to exercise due caution to avoid colliding with said child upon the roadway * * * and did * * * kill [the child] without lawful justification in violation of the Criminal Code of 1961, as amended, Section 9-3." A jury trial was waived and the circuit court found the defendant not guilty of involuntary manslaughter but guilty of reckless homicide, and sentenced him to probation for six months. The Appellate Court, Fourth District, reversed the judgment and held unconstitutional section 9-3(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-3(b)), which defines the offense of reckless homicide. (8 Ill. App.3d 963, 971.) We allowed the People's petition for appeal as a matter of right pursuant to Rule 317.50 Ill.2d R. 317.

Section 9-3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-3) provided:

"(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.

(c) Penalty.

(1) A person convicted of involuntary manslaughter shall be imprisoned in the penitentiary from one to 10 years.

(2) A person convicted of reckless homicide shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or in the penitentiary from one to 5 years, or both fined and imprisoned."

Because the reckless driving of a motor vehicle may, if it causes death, be punished either as involuntary manslaughter or as reckless homicide, the defendant contends, and the majority of the appellate court concluded, that the defendant was deprived of due process of law and of the equal protection of the laws. The majority considered that the statute "places within the uncontrolled and unguided discretion of the State's Attorney, the Grand Jury, and in some instances the trial judge or petit jury, the power to impose different degrees of punishment for different persons who commit identical acts under identical circumstances." 8 Ill. App.3d at 971.

The offense of reckless homicide came into our law in 1949 when the General Assembly added section 146a to Division I of the Criminal Code of 1874. (Laws of 1949, p. 716; Ill. Rev. Stat. 1949, ch. 38, par. 364a.) The added section provided:

"Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide. Any person convicted of reckless homicide shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000), or by imprisonment in the county jail for a determinate period of not less than sixty (60) days and not more than six (6) months, or by both such fine and such imprisonment, or by imprisonment in the penitentiary for an indeterminate period of not less than one (1) year or more than five (5) years."

This provision was sustained in 1952 against an attack which was similar to that advanced in this case. In People v. Garman (1952), 411 Ill. 279, 285, the court held:

"It was clearly the intent of our legislature to create a crime of lesser degree than manslaughter in the specific instance of a death occurring from the act of another while driving `with reckless disregard for the safety of others.' (See Ill. Rev. Stat. 1951, chap. 38, par. 365.) There is absolutely no reason why the same set of facts may not constitute separate offenses under different statutes. (People v. Crane, 356 Ill. 276; People v. Koblitz, 401 Ill. 224.) The plaintiff in error cannot complain because the jury convicted him of the lesser offense where both involuntary manslaughter and reckless homicide are charged. People v. Carrico, 310 Ill. 543."

In 1961 the Criminal Code was enacted in the form set out above. The comment of the drafting ...


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