APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 30, 1975.
Defendant was tried by a jury for aggravated battery and attempted murder charged in separate counts of a single indictment. After the jury had deliberated for 8 hours, the trial judge found them to be unable to agree and dismissed them. Defendant's amended motion for discharge, partly on the grounds that the jury was improperly dismissed and that retrial would place him in double jeopardy, was denied, and he then waived jury trial and stipulated that the evidence before the jury stand as the evidence in the bench trial. The court found him guilty on both charges, entered judgments and sentenced him to 1 to 10 years' imprisonment for attempted murder.
• 1 The People confess defendant's contention on appeal that since both offenses arise out of the same act, the judgment on the conviction of aggravated battery cannot stand if the attempt-murder conviction is upheld. (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1.) No question is raised as to the sufficiency of the evidence.
The heart of the appeal is defendant's contention that retrial as to either charge placed him in double jeopardy.
According to the report of proceedings, after the jury had deliberated for over 7 hours, the following colloquy occurred:
"THE COURT: Let there be a stipulation by and between the defendant and the State that the Court will inquire of the verdict in the following manner: Ladies and gentlemen, have you reached a verdict on all of the issues?
In the event the jury reports in the negative, by stipulation the Court will read to the jury an additional instruction approved by both parties and request that the jury again retire to consider their verdict. Is that a satisfactory stipulation?
MR. LITAK [Counsel for Defense]: So stipulated."
The jury was then brought in and questioned as stipulated. The foreman answered, "No, Sir, we have not." After an additional instruction was given, the jury retired for 20 minutes and were then returned into court. The judge asked the same question and the foreman gave substantially the same answer. The judge then found the jury to be deadlocked and discharged them.
The report of proceedings at the jury trial gives no indication that any of the trial participants knew at or prior to the time of the discharge whether the jury had reached a verdict on one of the charges. At the time of the motion for discharge, the trial judge stated, and the People concede it to be correct that, prior to verdict, court and counsel had been informed that the jury had agreed on one of the charges but it was not known on which charge or what the verdict was. Among the materials collected from the jury room by the clerk after the jury was discharged was a signed verdict form finding the defendant guilty of aggravated battery. The materials were placed in the clerk's impoundment file without being examined by the court. The court refused to allow the jury materials to be opened and examined at the hearing on the motion for discharge, and the materials did not become available until they became part of the record on appeal.
The fifth amendment to the Federal constitution provides in part:
"* * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; * * *."
Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056, made this provision applicable to State proceedings through the fourteenth amendment. A similar provision is contained in section 10 of article I of the ...