Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Cass County,
the Hon. Cecil J. Burrows, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1986.
On April 17, 1982, defendant, Neil Mueller, shot and killed Art Pierson and his son, Roscoe, while on defendant's brother's farm in Scott County. Immediately following the shootings, defendant hoisted the bodies into his truck; he then picked up a pistol and a chainsaw that the Piersons had been carrying and placed them in the Piersons' truck which he found near the scene of the shooting. After moving their truck to a new location, the defendant returned to his own truck and transported the bodies to his farm, also located in Scott County. Once there, he placed both bodies in burlap bags and left them behind some crates in his hog-pit building. Several hours later, defendant returned to the hog-pit building, removed the bodies, and then drove to Cass County, where he deposited the bodies in Clear Creek.
Defendant was charged in Scott County with murdering both of the Piersons, but venue was transferred to Sangamon County on his motion. At trial, defendant admitted the shootings but claimed that he acted in self-defense. A jury acquitted him of the charges. Approximately 10 days later, defendant was charged by information in Cass County with one count of homicidal concealment. He was convicted after a bench trial and ordered to serve 30 months' probation and 100 days' periodic imprisonment and was fined $20 pursuant to the Crime Victims Compensation Act (Ill. Rev. Stat. 1981, ch. 70, par. 71 et seq.). The appellate court affirmed his conviction. (130 Ill. App.3d 385.) We granted his petition for leave to appeal (94 Ill.2d R. 315(a)).
Defendant raises two issues on this appeal. He contends first that section 3-4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(b)(1)) bars the instant prosecution for homicidal concealment in Cass County because this charge should have been prosecuted together with the murder charges in the Scott County proceeding. Second, defendant argues that the homicidal-concealment prosecution is barred by principles of double jeopardy. We disagree with both of the defendant's contentions and affirm the judgment of the appellate court.
Section 3-4(b)(1) provides:
"(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began; * * *." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 3-4(b)(1).
Defendant suggests that he engaged in a single course of homicidal concealment for which he "could have been convicted" in the Scott County murder prosecution. Thus, according to him, the concealment charge is now barred by the statute. The State counters that the offense of dumping the bodies in Clear Creek in Cass County was wholly independent from the concealment of the bodies on defendant's farm in Scott County, that the Scott County State's Attorney had no power to prosecute an offense which occurred in Cass County, and that therefore defendant could not have been convicted of that concealment in the Scott County murder prosecution. The appellate court accepted the State's argument. We agree with the result reached by the appellate court but conclude on other grounds that section 3-4(b)(1) did not bar the second prosecution. We therefore do not pass upon the correctness of the appellate court's reasoning.
Defendant has assumed throughout that he "could have been convicted" of homicidal concealment within the meaning of section 3-4(b)(1) in the Scott County murder prosecution because the State's Attorney knew of all the acts of concealment and, at least arguably, could have prosecuted them. Since the State's Attorney did not do so, defendant argues that the concealment charge is now barred. In effect, defendant would read the statute as stating a rule that a prosecutor must join all related charges of which he is aware in a single prosecution or find them foreclosed by section 3-4(b)(1). Defendant's reading not only misconceives the purpose of this statute, but would radically extend the compulsory-joinder scheme established by the legislature.
The central purpose of section 3-4 of the Criminal Code of 1961 was to codify the rules of double jeopardy. (Ill. Ann. Stat., ch. 38, par. 3-4, Committee Comments, at 214 (Smith-Hurd 1972).) The prohibition in the first clause of section 3-4(b)(1) against a subsequent prosecution for a "different offense" of which the accused "could have been convicted" in an earlier prosecution does no more than restate the established double jeopardy principle that acquittal or conviction of one offense bars a later prosecution for a lesser included offense. (See Ill. Ann. Stat., ch. 38, par. 3-4, Committee Comments, at 217 (Smith-Hurd 1972); People v. Dugas (1923), 310 Ill. 291.) Thus, the language upon which defendant relies refers not to all other charges which could have been, but were not, joined in the initial prosecution, but only those of which he was actually in peril of being convicted in the murder trial. (See People v. Harrison (1946), 395 Ill. 463, 469; cf. People v. Albanese (1984), 104 Ill.2d 504 (rejecting the contention that the first clause of section 3-4(b)(1) barred successive prosecutions for two related murders involving virtually the same evidence).) Since, as is explained hereafter, homicidal concealment is not a lesser included offense of murder for double jeopardy purposes, defendant could not have been convicted of concealment in the murder prosecution, and therefore nothing in the first clause of section 3-4(b)(1) requires or even suggests that they be prosecuted together.
That the first clause of section 3-4(b)(1) does not mandate the joinder of different offenses in a single prosecution is not surprising inasmuch as the second clause explicitly "give[s] effect to the compulsory-joinder provisions" of the Code. (Ill. Ann. Stat., ch. 38, par. 3-4, Committee Comments, at 217 (Smith-Hurd 1972).) The second clause bars a subsequent prosecution when the first prosecution "was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code * * *." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 3-4(b)(1).) Clearly, it is this clause detailing which offenses must be "charged" which addresses the problem of joinder; defendant's suggestion that the first clause states a compulsory-joinder rule would render meaningless this provision of the statute, as well as section 3-3, a result precluded by recognized principles of statutory construction.
The second clause requires us to turn to the joinder provisions of section 3-3 to determine whether the homicidal-concealment prosecution is barred. ...