Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James M. Bailey, Judge, presiding.
MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:
Here the sole issue is whether the constitutional guarantees against double jeopardy prohibit criminal prosecution for aggravated battery and attempted murder after a finding and punishment for indirect criminal contempt of court based upon the same conduct.
Defendant, Robert Gray, struck his wife with a gun and then shot her. This violated a protective order in a divorce proceeding enjoining Gray from striking or molesting his wife.
The trial judge in the divorce case conducted a hearing on the wife's emergency petition that Gray be held in contempt of court for assaulting and shooting her. There was a finding of wilful contempt of court, and Gray was sentenced to six months in Cook County jail.
Subsequently Gray was indicted for aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4) and the attempted murder (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) of his wife based on the same conduct. His motion to dismiss on double jeopardy grounds was denied. He was convicted of aggravated battery and sentenced to 1 to 3 years.
On appeal, the Appellate Court, First District, found Gray had been placed twice in jeopardy for the same offense and reversed the criminal conviction. (36 Ill. App.3d 720.) We granted the State's petition for leave to appeal under Rule 315 (58 Ill.2d R. 315).
The pivotal question is whether Gray's offense of criminal contempt and his offense of aggravated battery constitute the same offense for purposes of the double jeopardy provision of the Illinois or the United States constitutions.
Both the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution of 1970 protect persons from being placed twice in jeopardy for the same offense. The fifth amendment to the Constitution of the United States provides:
"* * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." (U.S. Const., amend. V.)
Article I, section 10, of the Illinois Constitution states:
"No person shall * * * be twice put in jeopardy for the same offense." (Ill. Const. 1970, art. I, sec. 10.)
The fifth amendment, with or without any provision in the Illinois Constitution, is controlling. It applies to the States through the due process clause of the fourteenth amendment. Benton v. Maryland (1969), 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056.
The concept of double jeopardy has long been a part of the common law. Blackstone employed the term "jeopardy" in describing the underlying principle of the pleas of autrefois acquit (prior acquittal) and autrefois convict (prior conviction). This principle, he said, "is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." 4 W. Blackstone, Commentaries [*]335.
Coke described the protection afforded by the principle of double jeopardy as a function of three related common law pleas: autrefois acquit (prior acquittal), autrefois convict (prior conviction), and former pardon. 3 E. Coke, Institutes 212-13 (1797); J. Sigler, Double Jeopardy 2-16 (1969).
To determine whether two actions are prosecutions for the same offense, the test is: Would the same evidence sustain the proof of each offense? It is not necessary that a person be tried twice for the same action; so long as he has been put in jeopardy, the guarantee against subsequent jeopardy attaches. Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L.Ed. 489, 490, 31 S.Ct. 421, 422.
Very recently in Brown v. Ohio (1977), 432 U.S. 161, 53 L.Ed.2d 187, 97 S.Ct. 2221, Mr. Justice Powell, speaking for the court in holding that prosecution and punishment for joyriding prohibited prosecution and punishment for auto theft, had occasion to restate the controlling principles which bar successive prosecutions as well as consecutive sentences at a single trial:
"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger ...