APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
The defendant was charged by an indictment in the Circuit Court of St. Clair County with two counts of rape and aggravated kidnapping. On January 7, 1972, the jury which heard the defendant's case announced to the court that a verdict could not be reached and a mistrial was declared. On January 28, 1972, a subsequent indictment was returned charging the defendant with the original offenses of rape and aggravated kidnapping, and further charging the defendant with indecent liberties with a child and a second count of aggravated kidnapping.
Later the cause proceeded to trial on the four-count indictment of January 28, 1972, and the jury returned a verdict of guilty of indecent liberties with a child. The defendant was sentenced to a term of 4 to 20 years in the Illinois State Penitentiary.
The defendant frames four issues for review: (1) the State should have been barred from prosecuting defendant on Counts III and IV of the second indictment; (2) the corpus delicti of the offense was not proved; (3) the closing argument of the prosecutor denied the defendant a fair trial; and (4) he was not proven guilty beyond a reasonable doubt.
We are of the opinion that the above four points must be decided adversely against the defendant, and the judgment of the trial court must be affirmed.
In treating the first point presented by the defendant on appeal, the State and the defendant cite the case of People v. Miller, 35 Ill.2d 62. This case is very similar to the case at bar. In Miller, a trial for the offense of rape resulted in a "hung" jury and the defendants were retried on a new indictment, which included taking indecent liberties with a child and contributing to the sexual delinquency of a child. Defendant's motion in the Miller case for dismissal of Counts III and IV of the second indictment was controlled by provisions of sections 3-3 and 3-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1963, ch. 38, pars. 3-3, 3-4). Section 3-3 is:
"(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately."
The supreme court in Miller held "that the additional crimes charged in the second indictment * * * were crimes which section 3-3 requires to be included in a single prosecution, since all of the offenses were known * * *." 35 Ill.2d 62, 65.
1 We must next consider section 3-4(b) (1) of the Criminal Code of 1961, which provides as follows:
"(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began * * *."
The State contends that this section bars a subsequent prosecution only if a "former prosecution" resulted in either conviction or acquittal and that it is inapplicable in the present case where the "former prosecution" resulted in a mistrial and not in a conviction or acquittal. The ...