Appeal from the Circuit Court of Sangam on County, the Hon.
Richard Mills, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Webber Borchers, was elected to the Illinois House of Representatives in 1968. In the spring and early summer of 1970, he submitted two vouchers to the State of Illinois for payment. The first requested payment of $1,500 to Jeanette Weber for secretarial and clerical services performed for Borchers between September 1, 1969, and January 31, 1970. The second requested that the State pay Miss Weber $150 for secretarial services she performed for the defendant in June of 1970. Both vouchers required Borchers to certify "that the services or materials represented in this voucher were received or authorized, that the amount is correct and hereby approved for payment." Accompanying the vouchers were "bill forms" signed by the defendant in which the purpose or reason for the payment was also stated.
The only secretarial or clerical services performed by Miss Weber for the defendant were the filling out of the two vouchers and the typing of a few letters. Miss Weber did not receive any of the funds obtained from the filing of the vouchers. When the warrants for $1,500 and $150 were sent to her by the State, she endorsed them and turned them over to her employer, Christian Homeier, who was the defendant's seatmate in the legislature. Borchers received approximately $1,200 of the $1,650 from Homeier, and Homeier retained the balance.
In November of 1974, the defendant and Homeier were named as defendants in an 18-count indictment returned in the United States District Court for the Southern District of Illinois. Borchers was charged in two counts with mail fraud (18 U.S.C. sec. 1341 (1970)) and in one count with conspiring with Homeier to violate the mail fraud statute (18 U.S.C. § 371 (1970)). In essence the indictment charged that Borchers devised a scheme to defraud the State of Illinois by falsely representing that Jeanette Weber performed secretarial and clerical services for him, that he used the mails in furtherance of the scheme and that he conspired with Christian Homeier to commit the substantive offenses charged in the first two counts. Borchers was tried before a jury and was found not guilty.
In January of 1975 Borchers was indicted in the circuit court of Sangamon County. He was charged in several counts with perjury, theft and official misconduct. This indictment was dismissed on the motion of the State's Attorney, and a superseding indictment charging the same offenses was returned in April of 1975. Defendant was tried in November 1975 in the circuit court of Sangamon County. Prior to trial, all of the counts against the defendant were dismissed on his motion except for three counts charging theft of more than $150, theft of less than $150, and official misconduct. The indictment as it remained charged in substance that Borchers committed two crimes of theft when he submitted the vouchers and received the money and that he committed official misconduct in that while a member of the legislature he committed the crime of theft. A jury found him guilty on the three charges. The trial court held unconstitutional section 115-4(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(f)), which concerns the voir dire examination of jurors. Defendant appealed directly to this court under our Rule 302(a), which provides that "[a]ppeals from final judgments of circuit courts> shall be taken directly to the Supreme Court (1) in cases in which a statute * * * of this State has been held invalid * * *" (58 Ill.2d R. 302(a)). Because of the disposition we make of this appeal, we need not consider whether, as the trial court held, the statute unconstitutionally conflicts with our Rule 234 (58 Ill.2d R. 234).
The defendant contends inter alia that the State prosecution was barred by section 3-4(c)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3-4(c)(2)), which in part provides:
"(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States or in a sister State for an offense which is within the concurrent jurisdiction of this State, if such former prosecution:
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this State."
The defendant says that this section prohibits "any prosecution by the State in which a fact necessary to convict has been conclusively determined by a prior federal prosecution." His contention is, in effect, that the legislature has extended the doctrine of collateral estoppel to successive prosecutions by the Federal and State governments for criminal offenses arising out of the same conduct.
This court recently discussed collateral estoppel in People v. Williams (1975), 59 Ill.2d 557, 560-62:
"The doctrine of collateral estoppel, which bars relitigation of a decided question, applies to criminal as well as civil proceedings. (People v. Grayson, 58 Ill.2d 260; People v. Armstrong, 56 Ill.2d 159; People v. Haran, 27 Ill.2d 229, 232.) This was noted in Ashe v. Swenson, 397 U.S. 436, 25 L.Ed.2d 469, 475, 90 S.Ct. 1189, where, in the course of describing the doctrine, the court said:
`"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85, [61 L.Ed. 161, 37 S.Ct. 68, 3 A.L.R. 516].'
This court noted in People v. Haran, 27 Ill.2d 229, 231, that the doctrine of collateral estoppel was `well defined' in Hoffman v. Hoffman, 330 Ill. 413. There it was said:
`Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. This is sometimes denominated as an estoppel by verdict. (Public Utilities Com. v. Smith, 298 Ill. 151.) The rule in respect to the conclusiveness of the verdict and former trial between the same parties, when the judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive per se, is, that it must appear by the record of the prior suit that the particular controversy sought to be construed was necessarily tried and determined, that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter it will be considered as having settled that matter as to all further actions between the parties; and further, in cases where the record does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the ...