Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 27, 1982.
On January 15, 1980, a three-count indictment was returned against defendants, James D. Cole, Sr., and James D. Cole, Jr. Count I of the indictment charged defendants with solicitation (to commit murder) in that they requested William Haley, a special agent for the Department of Law Enforcement, to murder Robert H. Jones. Count II of the indictment charged defendants with solicitation (to commit murder) in that they encouraged Haley to murder Jones. Count III charged defendants with conspiracy (to commit murder). Following a jury trial in the circuit court of Peoria County, the defendants were acquitted on counts I and III. The jury was unable to reach a verdict on count II, which charged defendants with solicitation by encouragement. A mistrial was therefore declared as to count II. After denying defendants' motion to dismiss that count, the trial court ordered a second trial. Following the second jury trial, defendants were convicted, and each was sentenced to a five-year prison term. The appellate court reversed the judgments of conviction, holding that defendants' second solicitation trial violated the double-jeopardy provisions of our Federal and State constitutions. 98 Ill. App.3d 309.
This review presents one issue: Did defendants' second trial for solicitation (to commit murder) by encouraging Haley to murder Jones violate the double jeopardy provisions of the United States and Illinois constitutions.
Both the fifth amendment to the United States Constitution and article I, section 10, of the Illinois Constitution protect persons from being placed twice in jeopardy for the same offense. In addition, section 3-4(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 3-4(a)) provides:
"A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction."
Section 8-1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a)) provides:
(a) Elements of the offense.
A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense."
The State concedes that there is only one crime of solicitation. It argues, however, that acquittal of solicitation by requesting another to commit an offense (count I) does not bar reprosecution for solicitation by encouraging another to commit an offense (count II) when the jury, in the first trial, was unable to reach a verdict on the latter count. Defendants argue that their acquittal on count I constituted an acquittal of the entire solicitation offense, thereby barring their reprosecution under any theory of solicitation.
We first note the well-established principle that a mistrial carries different double-jeopardy ramifications than an acquittal or, for that matter, in some instances, a dismissal. As the United States Supreme Court stated in Lee v. United States (1977), 432 U.S. 23, 29-30, 53 L.Ed. 2d 80, 87, 97 S.Ct. 2141, 2145:
"[W]e recognized [in United States v. Jenkins (1975), 420 U.S. 358, 365 n. 7, 43 L.Ed.2d 250, 256 n. 7, 95 S.Ct. 1006, 1011 n. 7] that it was `of critical importance' that the proceedings in the trial court had terminated `in the defendant's favor' rather than in a mistrial. * * *
* * * The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged. A mistrial ruling invariably rests on grounds consistent with reprosecution, see United States v. Jorn, 400 U.S. 470, 476, 27 L.Ed.2d 543, 91 S.Ct. ...