APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
C. MOONEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Respondent, John Vitale, was charged, tried and convicted by the circuit court of Cook County, in South Holland, Illinois, of the offense of failing to reduce speed to avoid an accident, in violation of section 11-601 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-601.) Subsequently, a petition for adjudication of respondent's wardship was filed in the juvenile division of the circuit court of Cook County, alleging that respondent was delinquent because he committed involuntary manslaughter arising from his reckless misconduct in the operation of a motor vehicle which resulted in the deaths of two children. Respondent moved for discharge of the juvenile petition, arguing that the latter prosecution was barred by both the constitutional rules against double jeopardy and the statutory provisions contained in section 3-4 of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 3-4.) The circuit court dismissed the juvenile petition, and the State appeals.
The pleadings disclose the following pertinent facts. On November 20, 1974, the car respondent was operating struck two small children; one child died almost immediately and the other died the next day. The investigating officer of the South Holland Police Department issued a traffic complaint and summons to respondent, charging him with failing to reduce speed to avoid an accident. (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-601.) The traffic case was heard at a bench trial on December 23, 1974. Vitale pleaded not guilty, was found guilty, and a fine was assessed against him. The records from the traffic case, unfortunately, are not before us. On the next day, December 24, 1974, a petition for the adjudication of John Vitale's wardship was filed in the juvenile division of the circuit court of Cook County. The petition alleged that respondent was delinquent because he committed two offenses of involuntary manslaughter on November 20 while recklessly driving a motor vehicle. The petition was signed by the same policeman who initiated the traffic proceeding. Respondent subsequently moved for discharge of the juvenile petition because he had already been tried for an offense arising from the November 20 incident, so that the latter prosecution was barred by sections 3-3 and 3-4 of the Criminal Code. Ill. Rev. Stat. 1973, ch. 38, pars. 3-3 and 3-4.
Section 3-3 of the Criminal Code states:
"(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."
Section 3-4 provides the effect of a failure to comply with section 3-3:
"(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, * * * if such former prosecution:
(1) * * * was for an offense with which the defendant should have been charged on the former prosecution, as provided in subsection 3-3 of this Code (unless the court ordered a separate trial of such charge) * * *." Ill. Rev. Stat. 1973, ch. 38, pars. 3-3 and 3-4.
This appeal presents three questions under section 3-3: (1) Whether the offense of failing to reduce speed to avoid an accident was based on the same act as the offenses of involuntary manslaughter; (2) Whether the traffic offense and the involuntary manslaughter offenses were within the jurisdiction of a single court; and (3) Whether the involuntary manslaughter offenses were known to the proper prosecuting officer when the traffic charge was prosecuted.
The first issue is whether the traffic offense for which respondent was convicted in traffic court, failing to reduce speed to avoid an accident (hereinafter FTRS), arose from the same act as the involuntary manslaughter offenses. The State argues that the offense of FTRS is not a lesser included offense of involuntary manslaughter, and that the offenses are separate and distinct in law and fact. The respondent argues that the traffic offense is a ...