APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 30, 1979.
Defendant, Ralph Goolsby, was indicted for the murder and attempt armed robbery of William Byrne. Following a jury trial, defendant was convicted of murder and found not guilty of attempt armed robbery and voluntary manslaughter. He was sentenced to a term of 30 to 90 years in the Illinois Department of Corrections.
The killing occurred on February 24, 1973, when Byrne was a newspaper delivery truck driver and defendant was his "helper." At trial, defendant admitted he stabbed the deceased, but claimed he acted in self defense following an argument and a violent struggle over money. Because defendant presented evidence as to self defense, the trial court gave an instruction on justifiable use of force. (Illinois Pattern Jury Instructions, Criminal, No. 24.06 (2d ed. 1971) (hereafter cited as IPI Criminal).) Among other instructions given were those on murder (IPI Criminal No. 7.02) and voluntary manslaughter arising from an unreasonable belief that the killing was justified (IPI Criminal Nos. 7.05 and 7.06). The latter two instructions are based upon section 9-2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(b)) ("unreasonable belief" voluntary manslaughter).
On appeal (People v. Goolsby (1977), 45 Ill. App.3d 441, 359 N.E.2d 871), this court found there was insufficient evidence to prove defendant guilty of murder beyond a reasonable doubt. However, the evidence was sufficient to convict him of voluntary manslaughter, since the killing of Byrne arose from sudden and intense passion resulting from serious provocation. (Ill. Rev. Stat. 1973, ch. 38, par. 9-2(a) ("provocation" voluntary manslaughter).) Consequently, this court reduced the degree of the offense from murder to voluntary manslaughter pursuant to Supreme Court Rule 615(b)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(b)(3)). As modified, the conviction was affirmed and the cause remanded to the circuit court of Cook County for resentencing.
On remand, defendant filed a written motion to dismiss the indictment pursuant to section 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-1(a)(2)). He alleged that to impose a sentence on the reduced offense would violate State constitutional and statutory prohibitions against double jeopardy (Ill. Const. 1970, art. I, § 10; Ill. Rev. Stat. 1977, ch. 38, par. 3-4(a)(1)), since the jury had returned a signed verdict of not guilty of voluntary manslaughter. During the hearing on the motion, defendant's counsel also orally invoked the authority of the United States Constitution's prohibition of double jeopardy. (U.S. Const., amend. V.) Pursuant to this court's mandate, the circuit court denied defendant's motion to dismiss the indictment, conducted a hearing in aggravation and mitigation, and sentenced defendant to a term of 4 to 12 years for the crime of voluntary manslaughter.
Defendant brings this appeal, contending that the circuit court erred by not granting his motion to dismiss the indictment. Defendant reasserts his double jeopardy challenge and also contends that statutory provisions regarding compulsory joinder (Ill. Rev. Stat. 1977, ch. 38, par. 3-3) and constitutional due process protections (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2) prohibit resentencing and compel his discharge from incarceration.
1 Initially, we note that, in effect, defendant contests the mandate of the appellate court directing the circuit court to resentence defendant, rather than any order of the trial court. The record indicates that the trial court merely implemented the precise and unambiguous directions of this court because it was unauthorized by law to do otherwise. (People ex rel. Barrett v. Bardens (1946), 394 Ill. 511, 68 N.E.2d 710; People v. Knox (1971), 3 Ill. App.3d 22, 278 N.E.2d 252, cert. denied (1972), 409 U.S. 1075, 34 L.Ed.2d 633, 93 S.Ct. 678.) This cause was remanded for sentencing alone, yet defendant does not contest the sentence imposed. Accordingly, proper judicial procedure required defendant to petition the appellate court for rehearing and petition the Illinois Supreme Court for leave to appeal if the relief he sought was not granted by the appellate court. Ill. Rev. Stat. 1977, ch. 110A, pars. 315, 317, 367.
Despite the State's claim of waiver, our disposition of this appeal is on the merits.
Defendant contends that the jury's specific finding that he was not guilty of voluntary manslaughter precluded the appellate court from reducing his conviction from murder to voluntary manslaughter. He places principal reliance upon the prohibition of double jeopardy, which bars a new prosecution following an acquittal. Benton v. Maryland (1969), 395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056; People v. Flaherty (1947), 396 Ill. 304, 71 N.E.2d 779, cert. denied (1947), 331 U.S. 856, 91 L.Ed. 1863, 67 S.Ct. 1745; Ill. Rev. Stat. 1973, ch. 38, par. 3-4.
We find defendant's argument without merit, since this court's reduction of the degree of defendant's offense from murder to "provocation" voluntary manslaughter and the jury's acquittal on "unreasonable belief" voluntary manslaughter referred to separate offenses. Additionally, reduction of the degree of an offense in no way involves a reprosecution of defendant.
2 Defendant was indicted for murder and armed robbery. Voluntary manslaughter is a lesser included offense of murder (People v. Washington (1972), 7 Ill. App.3d 427, 287 N.E.2d 746 (abstract)), and a defendant indicted for the crime of murder may be convicted of voluntary manslaughter. (People v. Lewis (1977), 51 Ill. App.3d 109, 366 N.E.2d 446.) Where evidence is presented which, if believed, would justify conviction for the lesser included offense of voluntary manslaughter, the trial court must instruct the jury defining that offense. People v. Sykes (1977), 45 Ill. App.3d 674, 359 N.E.2d 897; People v. Arnold (1974), 17 Ill. App.3d 1043, 309 N.E.2d 89.
Because defendant claimed he acted in self defense, the trial court instructed the jury as to three alternative considerations:
(1) To sustain the charge of murder, the jury must find the defendant was not justified in using the force which he used which caused the ...