The Honorable Justice Heiple delivered the opinion of the court:
The opinion of the court was delivered by: Heiple
JUSTICE HEIPLE delivered the opinion of the court:
Helen Serafin, shot and paralyzed in 1979, languished for nine years and ultimately died on December 26, 1988. Dolly Stacey and Eduardo Carrillo, having been previously convicted of lesser charges, were then indicted, in the circuit court of Cook County, for murder. Specifically, they were charged with (1) intentionally and knowingly shooting and killing Serafin (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)); (2) knowing that such a shooting created a strong probability of death or great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2)); and (3) felony murder based upon home invasion, burglary and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)).
Because defendants had previously been prosecuted for offenses arising out of the same circumstances, they moved to dismiss the indictments for reasons of double jeopardy. (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) The trial judge denied the motion, and the defendants appealed. Considering the principles of double jeopardy and collateral estoppel, the appellate court reversed the trial court, holding that all of the indictments were barred except for that of murder based upon a strong probability of death or great bodily harm. (254 Ill. App. 3d 809.) We reverse in part and affirm in part.
Through a mutual friend, Dolly Stacey solicited Eduardo Carrillo to break into the basement apartment of her tenant, Helen Serafin, in order to frighten her into vacating the premises. Pursuant to this agreement, Carrillo and several acquaintances broke into Serafin's apartment, whereupon they robbed and shot her. Though Stacey was not present at the shooting, she knew the break-in was occurring and was looking down into Serafin's apartment through a laundry chute when the shot was fired. As already noted, Helen Serafin's death did not occur until over nine years later.
Shortly following the break-in and shooting, however, both defendants were charged with attempted murder, home invasion, armed robbery, burglary, aggravated battery and armed violence. Stacey was convicted of home invasion and burglary on an accountability theory, but was acquitted of attempted murder, armed robbery, aggravated battery and armed violence. Carrillo pleaded guilty to all counts.
THE DOUBLE JEOPARDY CLAUSE
Both our State and Federal Constitutions provide that no person shall be twice put in jeopardy for the same offense. (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) In Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182, the Supreme Court held that the test for determining whether a subsequent charge is for the same or a different offense is, essentially, whether an additional element must be proven in the subsequently charged offense. Extrapolating from Blockburger, the Supreme Court has since held that where a lesser included offense has previously been charged, the greater offense cannot subsequently be charged without violating the double jeopardy clause. Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912; Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221; Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260.
Considering Blockburger and its progeny, the appellate court held that the underlying felonies at issue are lesser included offenses of felony murder. It likewise held that attempted murder is a lesser included offense of murder based upon intent to kill. It then concluded that the double jeopardy clause renders unconstitutional the instant prosecutions for felony murder and intentional murder because the underlying, lesser included offenses had been litigated. We disagree.
Resolving the double jeopardy claims of the defendants does not require that this court address the merits of the appellate court's lesser included offense analysis. In cases where double jeopardy might otherwise be implicated, an exception exists where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not yet occurred. Diaz v. United States (1912), 223 U.S. 442, 448-49, 56 L. Ed. 500, 503, 32 S. Ct. 250, 251.
In Diaz, the Supreme Court held that a defendant could be prosecuted for murder notwithstanding that he had been previously convicted of assault and battery arising out of the same circumstances. While this exception has not been addressed directly by the Supreme Court since Diaz, it has been recognized from time to time in several of the Court's significant double jeopardy cases. (See Brown, 432 U.S. at 169 n.7, 53 L. Ed. 2d at 196 n.7, 97 S. Ct. at 2227 n.7; Vitale, 447 U.S. at 421 n.8, 65 L. Ed. 2d at 238 n.8, 100 S. Ct. at 2267 n.8.) Applying the Diaz exception to the instant case, the felony murder and intentional murder charges faced by the defendants are not barred by the double jeopardy clause because the defendants could not have been prosecuted for Serafin's murder until her death.
Defendants further assert that if the Diaz exception applies, it expires after "one-year-and-a-day" from the time of the offense. This argument is premised upon the common law rule that a criminal could not be prosecuted for felonious homicide if the victim did not die within one year and a day from the infliction of the wound. See Statutes Made at Gloucester on the Fourth of October, 1278, 6 Ed. 1, ch. 9; People v. Harrison (1946), 395 Ill. 463, 70 N.E.2d 596.
We note initially that the year-and-a-day rule was first codified in Illinois in 1827 and continued as part of the Criminal Code up to and including the 1953 Criminal Code. (Ill. Rev. Stat. 1827, Criminal Code, § 30.) However, upon repealing the 1953 Criminal Code and substituting it with the 1961 Criminal Code, the legislature chose not to include the year-and-a-day rule. (Compare Ill. Rev. Stat. 1953, ch. 38, par. 365, with Ill. Rev. Stat. 1961, ch. 38, par. 9-1 et seq.) Generally, when a statute is repealed and a replacement statute is adopted, whatever is excluded is discarded. ( People v. Manning (1979), 76 Ill. 2d 235, 240, 28 Ill. Dec. 544, 390 N.E.2d 903.) However, this principle of construction does not automatically apply to the repeal of codifications of the common law. Rather, the common law survives absent legislative intent to the contrary. ( People v. ...