text:
    (No. 49796.
    THE HOME INSURANCE COMPANY, Appellant, v. THE HERTZ CORPORATION et al., Appellees.

      Opinion filed April 3, 1978.

    Ranee V. Buehler and Philip W. Domagalski, of Chicago, for appellant.
    Paul D. Frenz and Elias N. Matsakis, of McBride, Baker, Wienke & Schlosser, of Chicago, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, an auto insurer, filed this subrogation action in the circuit court of Cook County, seeking to recover from defendants certain payments plaintiff made to its insured under the property damage and medical payments provisions of the insured’s auto policy. Defendants moved to dismiss, raising as a bar a general release running from the insured to defendants. The circuit court dismissed the complaint and the appellate court affirmed (49 Ill. App. 3d 569), citing an “unbroken line of Illinois appellate court cases which support the circuit court’s ruling that plaintiff’s claim is barred by the insured’s release to the defendants” (49 Ill. App. 3d 569, 571). We granted leave to appeal and now reverse.

Plaintiff-insurer alleged that on August 2, 1974, defendant Gary L. Gardner, an employee of defendant Ingram Barge, Inc., negligently drove an automobile owned by defendant Hertz Corporation so as to injure plaintiff’s insured and damage his auto. Plaintiff also alleged that it paid its insured’s property damage and medical payments policy claims in the amount of $2,082.36 and that it thereby became subrogated to the interests of the insured to the extent of those payments. Ingram submitted in support of its motion to dismiss a full and final release of all personal injury and property damage claims arising from the accident, which release was executed by the insured in consideration of the payment to him of $6,000. It is not disputed that this release had been executed by the insured in connection with the settlement of his separate suit against the defendants here for personal injury damages and the $100 property damage paid by him under his deductible clause, and that no recovery had been sought in that suit for the property damage paid by the insurer. It is also undisputed that defendants had notice of plaintiff’s subrogation rights prior to the settlement of the insured’s suit and the signing of the release.

The precise question before us is whether an unlimited general release by an insured of all claims against a tortfeasor bars a subrogation action by an insurer-subrogee against that tortfeasor, where the tortfeasor procures the release from the insured-subrogor with knowledge of the insurer’s interest.

It is true as defendants contend that the appellate court authority in this State supports their position. The appellate court here relied on Inter Insurance Exchange of Chicago Motor Club v. Andersen (1947), 331 Ill. App. 250, and two subsequent appellate decisions which cite Andersen with approval. (St. Louis Fire & Marine Insurance Co. v. Garnier (1960), 24 Ill. App. 2d 408; Shaw v. Close (1968), 92 Ill. App. 2d 1.) In Andersen, the insurer, after paying its insured under a collision policy, brought a subrogation action against the tortfeasor for property damage to the insured’s automobile; it also joined the insured as a defendant, alleging that, by executing the release, he failed to protect the insurer’s subrogation rights as required by the insurance contract. The tortfeasor invoked a release, signed only by the insured, as a bar to the insurer’s action. Faced with deciding whether the tortfeasor or the insured should protect the insurer’s subrogation interest, the appellate court chose the insured because he had a contractual relationship with the insurer while the tortfeasor did not. The court in Andersen acknowledged that “[t] he general rule seems to be that where the wrongdoer procures a release from the insured with knowledge that the insurance has been paid, the release is no bar to an action by the subrogee insurer against the wrongdoer” (331 Ill. App. 250, 254), but it found that “[t] he goal of prudence in one’s conduct would seem to be reached more truly by making the insured duty bound to refrain from executing a release except with the approval of the insurer” (331 Ill. App. 250, 256).

While our appellate court has adhered to this position, authority elsewhere is to the contrary, allowing the insurer to recover from the tortfeasor. Sentry Insurance Co. v. Stuart (1969), 246 Ark. 680, 439 S.W.2d 797; Collins v. Mobile & Ohio R.R. Co. (1923), 210 Ala. 234, 97 So. 631; Mitchell v. Holmes (1935), 9 Cal. App. 2d 461, 50 P.2d 473; Bahn v. Shalev (D.C. 1956), 125 A.2d 678; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Home Insurance Co. (1915), 183 Ind. 355, 108 N.E. 525; Sharp v. Bannon (Ky. App. 1953), 258 S.W.2d 713; Pennsyl vania Fire Insurance Co. v. Harrison (La. App. 1957), 94 So. 2d 92; Cleaveland v. Chesapeake & Potomac Telephone Co. (1960), 225 Md. 47, 169 A.2d 446; Wolverine Insurance Co. v. Klomparens (1935), 273 Mich. 493, 263 N.W. 724; Travelers Indemnity Co. v. Vaccari (1976), ---Minn.---, 245 N.W.2d 844; General Exchange Insurance Corp. v. Young (1948), 357 Mo. 1099, 212 S.W.2d 396; Omaha & Republican Valley Ry. Co. v. Granite State Fire Insurance Co. (1898), 53 Neb. 514, 73 N.W. 950; Davenport v. State Farm Mutual Automobile Insurance Co. (1965), 81 Nev. 361, 404 P.2d 10; Fire Association v. Wells (1915), 84 N.J. Eq. 484, 94 A. 619; Ocean Accident & Guarantee Corp. v. Hooker Electrochemical Co. (1925), 240 N.Y. 37, 147 N.E. 351; Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co. (1966), 268 N.C. 503, 151 S.E.2d 14; Motorists Mutual Insurance Co. v. Gerson (1960), 113 Ohio App. 321, 177 N.E.2d 790; Aetna Casualty of Surety Co. v. Associates Transports, Inc. (Okla. 1973), 512 P.2d 137; United Pacific Insurance Co. v. Schetky Equipment Co. (1959), 217 Ore. 422, 342 P.2d 766; Hospital Service Corp. v. Pennsylvania Insurance Co. (1967), 101 R.I. 708, 227 A.2d 105; Calvert Fire Insurance Co. v. James (1960), 236 S.C. 431, 114 S.E.2d 832; Continental Ins. Co. v. Weinstein (1953), 37 Tenn. App. 596, 267 S.W.2d 521; Wichita City Lines, Inc. v. Puckett (1956), 156 Tex. 456, 295 S.W.2d 894.

The difficulty with the Andersen rule, in our opinion, is that its application in the circumstances here is fundamentally unfair to both the insured and his insurer. Denied enforcement of its subrogation rights against the real wrongdoer, the insurer must instead seek recovery from its own insured, an obviously unpalatable alternative. Thus the tortfeasor and his own liability insurer, if any, escape payment for damage caused by the tortfeasor, while the tort victim is effectively denied payment from his own insurance carrier and from the tortfeasor. The Andersen rule in these circumstances constitutes a trap for the unwary insured plaintiff. While no fraud is alleged here, the rule itself encourages fraud or, at the very least, sharp practice on the part of the tortfeasor ór his insurance carrier. The insured may be an unsophisticated, unrepresented party presented with a full and final release which he is told he must sign in order to effect a needed settlement. To require him to execute a release of all claims, even though the tortfeasor has knowledge of the insurer’s interest and the probable existence of a standard insurance policy provision obligating the insured to protect the insurer’s subrogation rights, is simply not consistent with fair dealing and ought not to be encouraged. In short, adoption of the Andersen rule would (1) permit the tortfeasor to escape liability for the amounts paid by the insurer, (2) require the tort victim to go uncompensated as to the amounts paid by the insurer even though he has paid insurance premiums and has also suffered loss at the hands of the tortfeasor defendant, (3) force the insurer to sue his own injured insured, and (4) place a premium on sharp practice and dishonesty. Simply put, the Andersen rule produces, in our judgment, an inequitable result and ought not to be applied in the circumstances before us.

It was put considerably stronger many years ago when the Supreme Court of Michigan, quoting Lawyers’ Reports Annotated, noted that:

“ Tt is too well settled to render the citation of authorities necessary that, as between an insurer and a tortfeasor who has caused a loss of the insured property, the latter is ultimately liable for the loss, and that upon payment to the insured by the insurer the latter is entitled to be subrogated pro tanto to the insured’s right against the tortfeasor. With this right in view the authorities are agreed that where, with knowledge of a previous settlement by the insurer with the insured, a tortfeasor who is responsible for the loss procures a release by making a settlement with the insured, the release amounts to a fraud upon the insurer’s right, and therefore constitutes no defense as against the insurer in an action to enforce its right of subrogation against the tortfeasor.
***’ [Annot., 1916A L.R.A. 1282-83 (1916).]” Wolverine Insurance Co. v. Klomparens (1935), 273 Mich. 493, 496-97, 263 N.W. 724, 725.

We accordingly hold that an unlimited release executed by an insured-subrogor for consideration not specifically including an amount designated as covering the insurer’s subrogation interest does not bar a subsequent subrogation action by an insurer-subrogee against the tortfeasor, if the tortfeasor or his insurance carrier had knowledge of the insurer-subrogee’s interest prior to the release.

The judgments of the circuit and appellate courts are accordingly reversed, and the cause is remanded to the circuit court of Cook County for further proceedings consistent herewith.

Reversed and remanded.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE WARD

license: Public Domain

text:
    (No. 49874.
    ARTHUR A. LEPPER, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Rose Construction Company, Appellee.)

      Opinion filed April 3, 1978.

    James N. Keefe, of Ouincy, for appellant.
    Lawrence W. Blickhan, of Lewis, Blickhan & Longlett, of Ouincy, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

This is a direct appeal by the claimant, Arthur Lepper, from a judgment of the circuit court of Adams County confirming a decision of the Industrial Commission which denied an award of compensation for an acute myocardial infarction. 58 Ill. 2d R. 302(a).

The only question to be decided is whether the decision of the Commission that the claimant’s heart attack was not an accidental injury arising out of and in the course of his employment under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) was contrary to the manifest weight of the evidence.

On February 5, 1975, the claimant, a 60-year-old carpenter, was employed by the respondent, Rose Construction Company. He testified before the arbitrator that he had felt well when he began his workday at 8 a.m. He was helping to construct a concrete-block addition to an industrial building. Because.he is tall (6 feet, 6 inches), he was given the assignment of going up and down a 24-foot, wooden extension ladder and caulking expansion joints between concrete blocks from the ceiling to the floor with a hand caulking gun. The assignment required him to work from the top to the bottom of the ladder some 10 or 12 times that morning.

A welding room adjacent to the addition under construction provided the only heat for the men working on the addition. According to the claimant’s undisputed testimony, heat and gas from the welding room rose and accumulated just beneath the ceiling of the windowless addition, which had no vents or fans. On the other hand, the claimant testified, it was cold at floor level. “[Wjhen you were under the ceiling you were sweating, and when you got out on the floor, being you were sweating, you would freeze to death.” Because he knew he might be called upon to work out of doors from time to time, and would not be able to change his clothes every time his duties were changed (“we just had to suffer it out”), the claimant was dressed in insulated underwear, overalls, and an insulated jacket he could easily remove.

The claimant worked under these conditions for four hours and then took his lunch break. It was too cold to eat out of doors, so the workers ate their lunches in one of the rooms of the factory, which the claimant described as being very hot and noisy. Shortly after he had finished his lunch, he experienced “tremendous chest pains” and a feeling of indigestion “like I had swallowed two gallons of warm beer and somebody put a dish towel in my throat.” These pains lasted for 15 or 20 minutes. He was unable to return to his caulking duties that day and performed light duties for the rest of the afternoon.

At 5 p.m. he left the job site, telling his foreman, “If I’m not here in the morning, you will know why.” The claimant’s wife testified before the Commission that the foreman later told her he knew the claimant had had an attack of some kind while at work that day. When the claimant arrived home, he felt “pretty rough”; his wife testified that he was “ash gray,” “his lips were blue,” and “ [h] is eyes didn’t look right.” He ate a light dinner, took a hot bath, and went to bed earlier than usual. At 2:30 a.m. he suffered what proved to be an acute myocardial infarction, and was rushed to the hospital, where he remained for 14 days. He spent five days in the intensive-care unit. He has not worked since being hospitalized. He and his wife testified that he is able to do little more than walk for a mile a day when the weather is moderate, and assist his wife for brief periods about the house.

The respondent did not present evidence before the arbitrator or the Commission. The evidence presented by the claimant was his own testimony before the arbitrator, that of his wife before the Commission, and two medical reports. One of these reports was that of the claimant’s treating cardiologist, confirming the occurrence of a heart attack and stating: “No doubt there is a causal relationship between the first episode [the pains experienced at work], which was probably the beginning of his heart attack or at least the closing of one of the coronary arteries and the actual attack occurring later that evening.”

The other report was prepared by an internist who had examined the claimant on behalf of the respondent. That physician confirmed that the claimant had suffered an acute myocardial infarction on the evening in question, but concluded: “In my opinion, the degree of environmental stress, which the patient reports existed on that date, is not sufficient to cause an acute myocardial infarction in a patient without pre-existing (albeit asymptomatic) coronary heart disease. ”

We consider that the decision of the Commission denying an award was contrary to the manifest weight of the evidence. The evidence is that the claimant prior to experiencing “tremendous chest pains” and becoming acutely ill at lunch time had worked continuously for half a day without assistance, ascending and descending a 24-foot extension ladder and using the caulking gun. He had to brace himself with one hand and operate the gun with the other. He was subjected to extreme heat and noxious gas fumes when working near the ceiling and cold temperatures near the floor, which caused him alternately to perspire and to be chilled. After the episode of chest pains and acute illness he was unable to return to his usual work that afternoon. He was “ash gray,” his wife testified, when he came home and “his lips were blue.”

The claimant’s physician said that the first episode was probably the beginning of the attack or at least the closing of a coronary artery. He said the first and second episodes were causally related. This is not a plain case of conflicting medical testimony. The respondent’s physician said that he thought the “environmental stress” was not sufficient to cause the acute infarction unless there was a preexisting cardiac condition, albeit one without symptoms and one of which the claimant was presumably unaware. He did not contradict or express doubt as to the occurrence of the episode of chest pain and general distress. That an employee may have had a preexisting disease will not of itself preclude an award under the Act. Cossident v. Industrial Com. (1974), 57 Ill. 2d 33, 37.

It is, of course, primarily for the Commission to make findings of fact, but its findings must be set aside if they are contrary to the manifest weight of the evidence. (Andronaco v. Industrial Com. (1972), 50 Ill. 2d 251; Cossident v. Industrial Com. (1974), 57 Ill. 2d 33.) Considering the evidence as a whole and the reasonable inferences to be drawn from it, we must conclude that the Commission’s finding was contrary to the manifest weight of the evidence and the circuit court erred in confirming the Commission’s decision. The judgment of the circuit court is reversed, and we remand the cause to the Commission for the determination and entry of an appropriate award.

Reversed and remanded, with directions.


text:
    (No. 49548.
    DONALD L. VALENCIA, Appellant, v. PALMETTA VALENCIA, Appellee.

      Opinion filed April 3, 1978.

      Charles R. Douglas, of Granite City (John P. Long, of counsel), for appellant.
    Alan T. Stentz, of the Land of Lincoln Legal Assistant Foundation, Inc., of Madison, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Donald Valencia, filed a petition in the circuit court of Madison County to amend an order granting child visitation privileges to his former wife, Palmetta Valencia, the defendant. He sought an amendment requiring that her visits with their minor daughter Trisha take place only in his presence. After a hearing, the court denied the petition, and later found the plaintiff in contempt of court for failure to comply with the visitation provisions of the parties’ divorce decree. The appellate court affirmed the denial of plaintiff’s petition. It declined to consider his appeal from the finding of contempt, observing that the contempt had not been wilful and that no punishment had been imposed. (46 Ill. App. 3d 741.) We granted the plaintiff’s petition for leave to appeal.

For a full understanding of the questions presented, it will be helpful to set out the relevant events in chronological order.

In June 1973, the plaintiff and the defendant separated. They had one daughter, Tammi, who was nine months old, and the defendant was expecting a second child. Within a month after the separation, the defendant and Tammi moved to Missouri and began living with James McReynolds. The defendant continues to live with McReynolds, although they have never married. After three months, a second daughter, Trisha, was bom, and the defendant brought her home to live with Tammi and McReynolds.

On the evening of March 6, 1974, the defendant left Tammi, who was then 18 months old, in the care of McReynolds while she shopped for groceries. Several hours after the defendant returned with Trisha from her shopping trip, she found Tammi dead in her crib. An autopsy report stated that death was caused by “blunt force trauma of the abdomen.” McReynolds gave a written statement to police investigators after being advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. He admitted that while her mother was shopping, he had “spanked” Tammi, striking her “hard” three to five times, and that she had staggered, fallen and acted groggy after the punishment. The defendant gave a statement in which she said that Tammi had been ill for the preceding week with a cold and fever, that the child had “fallen and cut her lip” in her mother’s absence, and was “groggy and sleepy” when put to bed at 10:45 p.m. At midnight, Tammi appeared to have possible breathing problems, and at 2:20 a.m. was “cold to the touch and unnaturally still.” The record does not show whether any prosecutive action was taken against McReynolds or anyone else for the death of Tammi.

Several months later, the plaintiff filed for divorce in Madison County, alleging extreme and repeated mental cruelty by the defendant. In October 1975 a default decree was entered, awarding the plaintiff sole custody of Trisha. No evidence of the circumstances of Tammi’s death was presented to the court.

Trisha was living with the defendant and McReynolds in Missouri, when the plaintiff, in December 1975, instituted habeas corpus proceedings in Missouri to obtain custody of Trisha. There was a hearing at which evidence of the circumstances of Tammi’s death was introduced. An agreed order was entered by the court under which the plaintiff was to receive custody of Trisha commencing on March 1, 1976. The order further provided that the defendant would have visitation rights of one week each month and six weeks each summer, and that there would be a reasonable division of holidays for visitation purposes.

Prior to March 1, the plaintiff and a woman friend visited Trisha several times at McReynolds’ home. On a visit on February 7, the plaintiff observed Trisha had a large bruise or knot in the middle of her forehead and two black eyes. He took color photographs of the injuries. At the hearing later in Madison County the plaintiff and his friend testified that the defendant said that Trisha had suffered these injuries when she fell against a couch. The plaintiff sought to counter this explanation by his testimony that the couch was padded.

On February 23, 1976, one week before the plaintiff was to assume custody of Trisha and on the plaintiff’s motion, the circuit court of Madison County, without a hearing, entered an agreed order amending the original divorce decree by incorporating into it the visitation provisions of the order entered in the Missouri habeas corpus proceeding. No evidence of the circumstances surrounding Tammi’s death was brought to the attention of the court.

On February 29, 1976, the plaintiff took Trisha to his home in Illinois, where he noticed bruises on his daughter’s thighs. He later testified that he tried unsuccessfully to confer immediately with his physician and attorney and that he did have Trisha examined 10 days later at a hospital because of the bruises and an apparently unrelated bowel problem.

On April 28, 1976, he filed a petition in the circuit court of Madison County asking that the defendant’s visits with Trisha be permitted only in his presence. The court granted the defendant’s motion to strike all allegations of the petition relating to events prior to February 23, 1976, the date of entry of the agreed order incorporating the visitation provisions of the Missouri judgment into the Madison County divorce decree, and limited evidence to events following that date. Thus, the evidence heard by the court on the petition was in general confined to testimony relating to the bruises on Trisha’s thighs and the condition of her face.

The court made a finding that the plaintiff had failed to show a substantial change in circumstances subsequent to February 23, 1976, and denied the petition. He was permitted to make an offer of proof, but in this the court limited the offer to evidence of events following the date of the original default divorce decree on the ground that all prior events were res judicata. The court nevertheless did allow the plaintiff to introduce, over objection, certain exhibits relating to Tammi’s death, such as police and autopsy reports, the death certificate, and signed statements by McReynolds and the defendant.

The plaintiff subsequently failed to comply with the visitation provisions and was held in contempt of court. No punishment was imposed because, the court reasoned, the plaintiff had acted upon the advice of his attorney, and after the court’s action he had complied with its order.

We first consider the plaintiff’s contention that he should have been allowed to present evidence of relevant events that occurred prior to the February 23, 1976, entry of the agreed visitation order.

Contrary to the trial court’s ruling that the doctrine of res judicata barred its introduction, the plaintiff should have been allowed to present evidence of relevant events prior to February 23, 1976, the date of entry of the agreed visitation order. The admission of evidence of material facts existing at the time of an earlier decree, but not then made known to the court, has been approved in cases of custody disputes if those facts tend to show that a change in custody would be in a child’s best interests. Schultz v. Schultz (1976), 38 Ill. App. 3d 678, 680; Randolph v. Dean (1975), 27 Ill. App. 3d 913, 916; McDonald v. McDonald (1973), 13 Ill. App. 3d 87, 89; Girolamo v. Girolamo (1972), 5 Ill. App. 3d 627, 629-30; Peraza v. Tovar (1957), 13 Ill. App. 2d 405, 411; Maupin v. Maupin (1950), 339 Ill. App. 484, 488-89; Harms v. Harms (1944), 323 Ill. App. 154, 159; Thomas v. Thomas (1924), 233 Ill. App. 488, 493; see generally Annot., 9 A.L.R.2d 623 (1950).

Nelson on Divorce and Annulment supports this position:

“If facts and circumstances affecting the welfare of minor children, which should be called to the attention of the court at the time of the entry of a divorce decree awarding the custody of the children, are overlooked, the court may subsequently modify the decree upon proof of those circumstances and a showing that the arrangement provided by the original decree is not conducive to the best interests of the children, since the proper custody of a minor child is a subject for consideration at any time.” 2 Nelson, Divorce and Annulment sec. 15.37, at 310-11 (2d ed. 1961).

The rationale of admissibility was described in Randolph v. Dean, cited above. The court observed:

“The rules generally relating to petitions for change of custody are well settled in Illinois. Basically, the best interests and welfare of the child are primary concerns of the court [citation]. It is also true that a divorce decree, including custody provisions, is normally res judicata as to facts existing at the time of its entry, but the decree in respect to custody is temporary in nature and may be changed from time to time as the best interests of the child require. [Citation.] It is also expressed, in many cases, that a change in custody is only warranted by a change of circumstances since the entry of the decree which relates to the welfare of the child. [Citations.]
It is first argued by appellant that the trial court failed to treat the original decree as res judicata and went behind the decree incorrectly to consider facts existing at that time but not in the record in the case. Appellant argues that the oral agreement and plaintiff’s reason for signing the written stipulation, particularly, should not have been considered by the court. The doctrine of res judicata, however, should not be applied so strictly as to bar such evidence where the most important consideration is the welfare of the child. The court originally based the custody award on the agreement of the parties, without taking evidence as to the situation of the two parents or their ability to take care of a 21A-year-old boy. We agree that the petitioned court had the right to know the circumstances surrounding the custody agreement by the parties, when those circumstances did not appear of record, and had the right to consider them in rendering a decision on the petition.” Randolph v. Dean, 27 Ill. App. 3d 913, 915-16.

There are differences in the situation here, but they are not of consequence. No valid distinction can be drawn, for example, between custody and visitation rights where there is a claim that a child’s health or life is endangered. The first concern must be the child’s best interests and welfare. The evidence of Trisha’s bruised face and thighs was received in isolation, so to speak, and the court found it was insufficient to support the plaintiff’s claim that the defendant’s visitation rights should be restricted. The excluded evidence would have been introduced to show that Trisha’s sister died after having been physically abused by a man with whom Trisha’s mother is still living, and with whom Trisha would be living during the extended periods of visitation granted under the court’s order. Consideration of this evidence might have caused the court to make a different finding. In any event the plaintiff was entitled to have the evidence admitted and considered with the evidence of Trisha’s bruised face and thighs.

The appellate court disposition of the plaintiff’s appeal from the order which found him in contempt for not complying with the visitation provisions of the decree was improper. Generally, it is held that where no punishment has been imposed an order adjudicating one to be in contempt is not final and is not review able. (Henry v. Waz (1976), 35 Ill. App. 3d 752, 754; County of Cook v. Triangle Sign Co. (1963), 40 Ill. App. 2d 202, 210; Annot., 33 A.L.R.3d 448, 564-66 (1970).) The appellate court correctly observed that there was no issue before it because no punishment had been imposed, but instead of dismissing the appeal as to that portion of the judgment it affirmed generally the judgment of the circuit court. The appeal should have been dismissed as to the question of contempt. Further, it would be incongruous under the circumstances to permit this unreview able order holding the plaintiff at fault to stand. We accordingly direct the circuit court to vacate its order declaring him to have been in contempt.

For the reasons given, the judgments of the circuit and appellate courts are reversed as to the portion on the admissibility of evidence; the judgment of the appellate court is vacated insofar as it affirmed the order of contempt. The appeal is dismissed as to the question of contempt, and the cause is remanded to the circuit court of Madison County for further proceedings consistent with this opinion.

Appellate court reversed in part and vacated in part; appeal dismissed in pari; circuit court reversed in part; cause remanded, with directions.


author: MR. JUSTICE DOOLEY MR. JUSTICE UNDERWOOD,

text:
    (No. 49326.

      In re JOHN M. VITALE, a Minor, Appellee.—(The People of the State of Illinois, Appellant.)

      Opinion filed April 3, 1978.

      UNDERWOOD and RYAN, JJ., dissenting.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Linda Ann Miller, and Gary W. Adair, Assistant State’s Attorneys, of counsel), for the People.
    Lawrence G. Dirksen, of Olympia Fields (Gary F. Felicetti, of counsel), for appellee.
   MR. JUSTICE DOOLEY

delivered the opinion of the court:

On November 20, 1974, an automobile operated by the minor respondent, John M. Vitale, struck two small children. One died almost immediately, and the other the following day. The investigating officer issued a traffic complaint charging respondent with failing to reduce speed to avoid an accident (Ill. Rev. Stat. 1973, ch. 9514, par. 11—601). On December 23, 1974, the traffic case was heard. Respondent pleaded guilty, was found guilty, and was fined.

On the following day, December 24, 1974, a petition for adjudication of respondent’s wardship was filed in the juvenile division of the circuit court of Cook County. The petition, signed by the same police officer who issued the traffic ticket, alleged respondent was delinquent in that on November 20, 1974, while recklessly driving an automobile, he committed involuntary manslaughter resulting in the death of the two minors.

Respondent subsequently moved to discharge, asserting the prosecution of the traffic charge barred the subsequent prosecution of the same offense under the compulsory joinder provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3—3(b)), and the double jeopardy and due process clauses of the Federal Constitution. U.S. Const., amends. V, XIV.

The circuit court dismissed the juvenile petition. The appellate court found that the involuntary manslaughter charge and failure to reduce speed charge were predicated on the same “act” within the meaning of section 3—3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 3—3(b)). Accordingly, it affirmed the dismissal order (44 Ill. App. 3d 1030). We granted leave to appeal under our Rule 315 (58 Ill. 2d R. 315).

Does the traffic offense for which respondent was tried and convicted, failure to reduce speed to avoid an accident, prohibit a subsequent prosecution for the manslaughter offenses? In our discussion of this broad issue we shall consider our Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 1—1 et seq.), as well as the double jeopardy clause of the Federal Constitution.

Section 3—3 of the Criminal Code of 1961 relating to joinder of offenses states:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single • court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.” (Ill. Rev. Stat. 1973, ch. 38, par. 3—3.)

So also section 3—4, having to do with the effect of a failure to comply with section 3—3, states:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, *** if such former prosecution:
(1) *** 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) ***.” Ill. Rev. Stat. 1973, ch. 38, par. 3-4.

The appellate court employed as a basis for its decision the definitions of “act” and “conduct” in the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 2—2, 2—4). An “act” includes “a failure or omission to take action,” and “conduct” is “an act or a series of acts, and the accompanying mental state.” The appellate court concluded the acts in both the offense of failure to reduce speed and the offense of involuntary manslaughter were identical, with the exception that in the manslaughter offense a death was involved. Both offenses, it continued, were within the jurisdiction of a single court, the juvenile division of the circuit court of Cook County (Ill. Rev. Stat. 1973, ch. 37, par. 702-2).

The appellate court was likewise of the opinion that the State’s Attorney’s office had knowledge of the deaths when the traffic charge was prosecuted. Thus all the requirements of section 3—3(b) were met so as to bar subsequent prosecution.

We believe there is a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter. The fifth amendment to the Constitution of the United States provides:

“*** nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.)

The fifth amendment 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.

It is well established that certain constitutional protections are available to juveniles. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) Prosecuting a minor in special juvenile adjudicatory proceedings places him in jeopardy within the meaning of the fifth amendment. Breed v. Jones (1975), 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779.

The common law has long recognized double jeopardy. In referring to prior acquittal and prior conviction, Blackstone observed that this principle “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. See also 3 E. Coke, Institutes 212-13 (1797); J. Sigler, Double Jeopardy: The Development of a Legal & Social Policy 2-16 (1969).

In determining whether multiple actions are prosecutions for the same offense, the inquiry has historically been whether the same evidence will sustain the proof of each offense. Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L. Ed. 489, 490, 31 S. Ct. 421, 422.

In the recent case of Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, prosecution and punishment for joyriding — taking an automobile without the owner’s permission — prohibited prosecution and punishment for automobile theft, an offense which required proof of intent on the part of the thief to permanently deprive the owner of possession. We are told:

“The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ It has long been understood that separate statutory crimes need not be identical — either in constituent elements or in actual proof — in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law sec. 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the ‘same offence’ under the Double Jeopardy Clause.” (Emphasis added.) 432 U.S. 161, 164, 53 L. Ed. 2d 187, 193, 97 S. Ct. 2221, 2224-25.

So here the two separate statutory offenses of failing to reduce speed and involuntary manslaughter need not be identical, either in their basic ingredients or in their proof to be the “same” within the double jeopardy clause.

Any lesser offense is included in the greater offense for the purpose of double jeopardy. This was pronounced as long ago as 1889 in In re Nielsen (1889), 131 U.S. 176, 33 L. Ed. 118, 9 S. Ct. 672, where it was observed:

“[W] here *** a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” 131 U.S. 176, 188, 33 L. Ed. 118, 122, 9 S. Ct. 672, 676.

Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, exemplifies the meaning of the test to determine whether the two offenses are the same. Joyriding was a lesser included offense in automobile theft. The State, to prove theft, had to establish joyriding plus the requisite intent of the thief to permanently deprive the owner of possession. Nevertheless, the prior prosecution for joyriding barred prosecution for automobile theft.

Here it becomes important to examine the statutory definition of the crimes of involuntary manslaughter and failure to reduce speed.

Involuntary manslaughter was defined by statute at the time of the occurrence thus:

“(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.
(b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.
(c) Sentence.
(1) Involuntary manslaughter is a Class 3 felony.
(2) Reckless homicide is a Class 4 felony.” Ill. Rev. Stat. 1973, ch. 38, par. 9—3.

The issues in reckless homicide are: Did the defendant cause death by driving a motor vehicle? Did the defendant drive the motor vehicle recklessly? Did the defendant drive the motor vehicle in a manner likely to cause death or great bodily harm? Each of these has to be proved beyond a reasonable doubt. Illinois Pattern Jury Instructions, Criminal, No. 7.10 (1968).

Failure to reduce speed to avoid an accident is defined by statute as follows:

“(a) No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. ” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 95½, par. 11-601(a).

The statute imposes the duty upon all motorists to exercise ordinary care, to reduce speed, and to avoid colliding with “any person.”

To prove the charge of failing to reduce speed, the State has to prove that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person. Involuntary manslaughter with a motor vehicle, or reckless homicide, is a reckless operation of a motor vehicle in a manner likely to cause death or great bodily harm (Ill. Rev. Stat. 1973, ch. 38, par. 9—3). “Recklessness” does not require an intent to kill. (See People v. Parr (1976), 35 Ill. App. 3d 539, 542; People v. Bembroy (1972), 4 Ill. App. 3d 522, 525.) It is a species of violation of duty. Ill. Rev. Stat. 1973, ch. 38, par. 4—6; People v. Potter (1955), 5 Ill. 2d 365, 368.

As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the “same” as the lesser offense included within it.

F ailing to reduce speed and involuntary manslaughter cannot be fragmented so as to create different offenses. “The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v. Ohio (1977), 432 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227.

The sequence of the prosecution is immaterial. The conviction of the lesser precludes conviction of the greater, just as conviction of the greater precludes conviction of the lesser. (Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221; In re Nielsen (1889), 131 U.S. 176, 33 L. Ed. 118, 9 S. Ct. 672.) Here it is irrelevant of what offense, failing to reduce speed or involuntary manslaughter, respondent was first convicted.

Both offenses were against the same sovereign, the State of Illinois. The traffic court, as well as the juvenile court, were courts of this same sovereign. (See Waller v. Florida (1970), 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184; People v. Gray (1977), 69 Ill. 2d 44.) The trial and conviction in the traffic court barred subsequent action in the juvenile court of Cook County. The State could not place respondent on trial twice for the “same offense.”

Double jeopardy is a constitutional guarantee. It is a matter which cannot be left for State court determination. (Ashe v. Swenson (1970), 397 U.S. 436, 442-43, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) State legislatures are free to define crimes and fix punishments. Once the legislature has acted, however, the courts are prohibited by the due process and double jeopardy clauses from imposing more than one punishment for the same offense. Brown v. Ohio (1977), 432 U.S. 161, 165, 53 L. Ed. 2d 187, 193, 97 S. Ct. 2221, 2225.

For the reasons herein expressed, under the double jeopardy clause the conviction on the traffic charge of failure to reduce speed precluded the prosecution in a separate action for involuntary manslaughter.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

I have inflicted this lengthy dissent upon the reader because I believe the majority of this court has substantially broadened the double jeopardy rule it purports to follow, reaching a result which is compelled by neither the Federal Constitution nor the constitution or statutes of Illinois.

Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221, relied on by the majority, does not require the dismissal of the involuntary manslaughter charge levied against Vitale. In Brown, the defendant was first convicted of joyriding and later convicted of auto theft. The Ohio court conceded that, under the applicable Ohio statute, joyriding was completely included within the offense of auto theft. On that basis the Supreme Court reversed the subsequent conviction, holding that an included offense is the same offense for the purpose of applying the protections of the double jeopardy clause. That holding is inapplicable here because under the lesser included offense test also found in the Brown opinion, the offense of failing to reduce speed to avoid an accident is not encompassed by the offense of involuntary manslaughter.

This court recently considered whether subsequent prosecutions for aggravated battery and attempted murder were constitutionally impermissible where there had been a prior finding and punishment for indirect contempt of court based upon the identical conduct. In People v. Gray (1977), 69 Ill. 2d 44, in which I specially concurred and Mr. Justice Ryan dissented, the court held the subsequent prosecutions precluded. We there said, “To determine whether two actions are prosecutions for the same offense, the test is: Would the same evidence sustain the proof of each offense?” In a similar vein we quoted from the opinion of the Supreme Court in Brown v. Ohio (1977), 432 U.S. 161, 166, 53 L. Ed. 2d 187, 194, 97 S. Ct. 2221, 2225:

“Mr. Justice Powell, speaking for the court in holding that prosecution and punishment for auto theft prohibited prosecution and punishment for joyriding, 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 v. United States, 284 U.S. 299, 304 (1932):
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. ***”
This test emphasizes the elements of the two crimes. “If each requires proof that the other does not, the Blockburger test would be satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. ***” Iannelli v. United States, 420 U.S. 770 785 n.17 (1975).
***’[Citation.]” 69 Ill. 2d 44, 49-50.

It was also noted that Brown held “conviction of a lesser included offense barred prosecution for a greater offense, *** since the lesser offense required no proof beyond that required for the conviction of the greater offense.” (69 Ill. 2d 44, 51.) It is precisely the fact that each of the charges here “requires proof of a fact which the other does not,” and that proof of the greater offense does not necessarily involve proof of the lesser, which distinguishes this case from Brown and Gray. Clearly, proof that one failed to reduce the speed of his vehicle to avoid a collision (the traffic offense) does not prove manslaughter, for the traffic offense need not involve death; equally clear is the fact that commission of the crime of involuntary manslaughter (the wardship .charge) need not involve an unlawful failure to reduce speed or even the use of a car. In short the traffic violation was not a lesser included offense of the manslaughter charges upon which the wardship proceedings are predicated, and therefore the latter do not fall within the admonition of Brown that “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” (432 U.S. 161, 169, 53 L. Ed. 2d 187, 196, 97 S. Ct. 2221, 2227.) The majority’s conclusion that “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter” (71 Ill. 2d at 239) is, of course, simply not correct, for, as above stated, proof of manslaughter need not involve a car at all.

Under the “same evidence” test, the fact that similar evidence is in fact introduced in both trials is irrelevant. If the greater offense can be accomplished without committing the lesser offense, then the greater offense does not embrace the lesser, nothw ithstanding that in the particular case the same facts give rise to both offenses. “As is invariably true of a greater and lesser included offense, the lesser offense *** requires no proof beyond that which is required for conviction of the greater ***.” (Emphasis added.) (Brown v. Ohio (1977), 432 U.S. 161, 168, 53 L. Ed. 2d 187, 195-96, 97 S. Ct. 2221, 2226.) The crucial evidence is not that actually presented, but the evidence required by the applicable statutes. Our opinions make plain that Illinois has heretofore been among the majority of jurisdictions applying this test in determining what are included offenses. In People v. Hairston (1970) 46 Ill. 2d 348, 358, this court quoted Gavieres v. United States (1911), 220 U.S. 338, 342, 55 L. Ed. 489, 490, 31 S. Ct. 421, 422, also relied upon in Gray, as follows:

“A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” (Emphasis added.)

This court went on to note:

“Along the same lines, it has been frequently manifested that offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although the same acts may be necessary to be proved in the trial of each. Ebeling v. Morgan (1915), 237 U.S. 625, 59 L. Ed. 1151, 35 S. Ct. 710; Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180; Gore v. United States (1958), 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280; Hattaway v. United States (5th Cir. 1968), 399 F.2d 431; People v. Garman, 411 Ill. 279." (46 Ill. 2d 348, 358-59.)

In People v. Glickman (1941), 377 Ill. 360, defendant was charged with burglary under the applicable statute, which did not contain the common law requirement of entering at night. Defendant was convicted of attempted burglary under a statute which did require that the attempt be made at night. In support of this conviction, the State argued that attempt was a lesser offense included within burglary, but this court reversed the conviction holding that “the greater crime, burglary, does not contain all of the elements of the lesser, for the element ‘in the nighttime’ is absent” (377 Ill. 360, 367), although defendant’s activity was in fact shown to be at night. See also People v. King (1966), 34 Ill. 2d 199; People v. Higgins (1967), 86 Ill. App. 2d 202; People v. Shoemaker (1975), 31 Ill. App. 3d 724.

Following Glickman, the legislature defined an included offense in section 2 — 9 of the Criminal Code:

“Included offense” means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein.” (Ill. Rev. Stat. 1975, ch. 38, par. 2—9.)

It thereby incorporated the “same evidence” test (see People v. Baylor (1975), 25 Ill. App. 3d 1070, 1074), which is applied although the facts presented in the particular case may actually prove the lesser offense. See People v. Yanders (1975), 32 Ill. App. 3d 599.

The essence of the “same evidence” or “required evidence” test of Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182, is “whether each provision requires proof of an additional fact which the other does not.” This test, utilized by a majority of American jurisdictions, has been restated by various American courts. In Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965), the author noted these reformulations of the test: (1) the “backwards” test — offenses are not the same unless defendant could have been convicted of the second offense on the evidence needed in the first trial; (2) the “distinct elements” test — “offenses are not the same if each contains an element not included in the other”; (3) the “identity” test — “offenses are the same for double jeopardy purposes only if they are identical in law and fact.” (75 Yale L.J. 262, 273.) The Supreme Court of Iowa, in holding that a reckless driving conviction did not bar a subsequent prosecution for manslaughter, stated: “The lesser offense must be composed solely of some but not all elements of the greater crime. The lesser crime must not require any additional element which is not needed to constitute the greater crime. The lesser offense is therefore said to be necessarily included within the greater.” State v. Stewart (Iowa 1974), 223 N.W.2d 250, 252, cert. denied (1975), 423 U.S. 902, 46 L. Ed. 2d 134, 96 S. Ct. 205.

The Supreme Court of Ohio in State v. Best (1975), 42 Ohio St. 2d 530, 330 N.E.2d 421, a case very similar to our own, held that the charge of driving a vehicle “at a greater speed than will permit him [the driver] to bring it to a stop within the assured clear distance” (42 Ohio St. 2d 530, 536, 330 N.E.2d 421, 425) is not barred by a prior prosecution for homicide by vehicle because it is not a lesser included offense. The court found that the misdemeanor bore no relationship to the offense of homicide by vehicle, stating:

“The only common element to the two offenses is that both involve the operation of a motor vehicle. No element of speed or distance ahead is involved in the offense of homicide by vehicle, and no element of causing death or of violation of the specific statutes cited in [the homicide statute] is involved in the offense of failing to keep an assured-clear-distance ahead. Although both offenses arose out of the same transaction, they are separate and distinct offenses.” 42 Ohio St. 2d 530, 536, 330 N.E.2d 421, 425.

In the recent, post-Brown case of Virgin Islands v. Smith (3d Cir. 1977), 558 F.2d 691, the court of appeals acknowledged that Brown followed the Blockburger rule, which says that it is the evidence demanded by the definition of the offense, not the evidence adduced at trial, which determines the inclusion of one offense within another. In Smith, the defendant asserted that a prior conviction of possession of a dangerous weapon barred prosecution for a murder committed with that weapon. The court disagreed, stating:

“The Supreme Court made its position clear in Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 1294, 43 L. Ed. 2d 616 (1975), where it said:
‘ [T] he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’

See also Brown v. Ohio, supra.

Viewing the criminal activity here against that backdrop reveals the weakness of defendant’s position. Although a dangerous weapon may be used to commit a murder, a victim can be killed without the use of any weapon, for example, by strangulation. Moreover, it would be possible for a person to possess a knife in violation of the weapons statute, but in stabbing a person in self-defense be innocent of murder. Thus, a verdict of guilty on either charge would not establish the legal prerequisites for the other.” 558 F.2d 691, 696.

Similarly, in United States v. Cumberbatch (2d Cir. 1977), 563 F.2d 49, the court cited Brown in holding that the offense of carrying a firearm unlawfully during the commission of a felony is not included in the offense of bank robbery with the use of a dangerous weapon, and that conspiracy to commit bank robbery is not included in the offense of bank robbery. For other cases holding this weapons offense not included in armed robbery see Coates v. Maryland (1977), 436 F. Supp. 226, also citing Brown, and United States v. Crew (4th Cir. 1976), 538 F.2d 575, cert. denied (1976), 429 U.S. 852, 50 L. Ed. 2d 127, 97 S. Ct. 144.

Brown’s reiteration of the “same evidence” test of Blockburger evinces once again the Supreme Court’s consistent refusal to adopt the continuing arguments of some of its members for “episodic immunity” or a “same transaction” test which would generally require the joinder in one proceeding of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” (Ashe v. Swenson (1970), 397 U.S. 436, 453-54, 25 L. Ed. 2d 469, 481, 90 S. Ct. 1189, 1199; Brown v. Ohio (1977), 432 U.S. 161, 170, 53 L. Ed. 2d 187, 197, 97 S. Ct. 2221, 2227 (Brennan & Marshall, JJ., concurring).) (See collection of dissents cited in Thompson v. Oklahoma (1977), 429 U.S. 1053, 1054, 50 L. Ed. 2d 770, 97 S. Ct. 768 (Brennan 8c Marshall, JJ., dissenting from denial of certiorari).) Nor, until now, has this court construed our constitution or statutes as incorporating a “same transaction” test. People v. Hairston (1970), 46 Ill. 2d 348, 358; People v. Allen (1937), 368 Ill. 368, 379.

Directly in point is our recent clarification in People v. King (1977), 66 Ill. 2d 551, of the confusion resulting from earlier opinions considering the multiple prosecution and sentencing questions. We there undertook a comprehensive discussion of the constitutional and statutory issues involved, concluding:

“ [W] e are aware of no constitutional limitations against multiple convictions and concurrent sentences for different offenses arising from multiple acts which are incidental to or motivated by some greater criminal objective. Multiple convictions and consecutive sentences have been permitted against claims of double jeopardy for offenses based on a single act but requiring proof of different facts. Gore v. United States (1958), 357 U.S. 386, 2 L. Ed. 2d 1405, 78 S. Ct. 1280; Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180." (66 Ill. 2d 551, 565.)

Even more precisely in point, perhaps, is the following:

“Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. “Act,” when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” 66 Ill. 2d 551, 566.

The lesser included offense doctrine evolved at common law as an aid to the prosecution when it failed to prove all the elements necessary for a guilty verdict on the crime charged in the indictment. (People v. Mussenden (1955), 308 N.Y. 558, 562, 127 N.E.2d 551, 553; United States v. Harary (2d Cir. 1972), 457 F.2d 471, 478.) A strict adherence to the “same evidence” standard protects defendants from too broad, an application of this doctrine and a resultant conviction of an offense not charged. (People v. Glickman (1941), 377 Ill. 360; People v. Rainbolt (1977), 52 Ill. App. 3d 374 (criminal trespass to vehicle not a lesser offense included in charge of theft of a vehicle, conviction of criminal trespass to vehicle on theft indictment reversed); People v. Yanders (1975), 32 Ill. App. 3d 599 (theft not lesser offense included in robbery, theft conviction on basis of robbery indictment reversed); People v. Shoemaker (1975), 31 Ill. App. 3d 724 (burglary indictment will not support theft conviction since proof of burglary need not include all essential elements of theft); People v. Higgins (1967), 86 Ill. App. 2d 202 (aggravated battery not included within involuntary manslaughter, conviction of aggravated battery on involuntary manslaughter charge reversed).) In my opinion, a charge of involuntary manslaughter, as here, would not support a conviction for failing to reduce speed. In its desire to protect this defendant, the majority has eroded the important protections offered other defendants by the “same evidence” doctrine.

Nor do the compulsory joinder provisions of the Criminal Code relied on by the appellate court apply to the charges made against Vitale. It is clear that section 3—3(b) requires joinder of the traffic charge and the manslaughter charge if both arose from the “same act,” and that in such circumstance section 3—4(b)(1) would effectively bar a separate prosecution of the manslaughter charges subsequent to conviction on the traffic charge unless separate trials had been ordered by the trial court pursuant to section 3—3(c). If, however, the charges are not based on the same act, they need not be joined in a single prosecution, and conviction of the traffic violation does not preclude subsequent prosecution of the manslaughter charges. See Ill. Ann. Stat., ch. 38, par. 3—3, Committee Comments, at 202 (Smith-Hurd 1972).

The appellate court found that the involuntary manslaughter charge and the charge of failure to reduce speed to avoid an accident were both based on the “act” of driving a motor vehicle in a manner likely to cause a collision, with such act resulting in collision. The specific act for which Vitale was convicted in traffic court was his failure to decrease his speed to avoid colliding with the pedestrians. (Ill. Rev. Stat. 1973, ch. 95½, par. 11—601(a).) In some circumstances such an act may also be sufficient, should there be a resultant death, to support an involuntary manslaughter or reckless homicide prosecution, since this act may have been performed recklessly and was “likely to cause death or great bodily harm to some individual.” (Ill. Rev. Stat. 1973, ch. 38, par. 9—3(a).) However, there is no showing here that the manslaughter rests solely or even principally upon the failure to reduce speed.

The police report of the accident, contained in the record before us, states that Vitale struck and killed two 5-year-old children who were crossing the street in a marked school crosswalk under the direction of a uniformed crossing guard displaying a stop sign in the center of the street. According to the report, Vitale stated that his attention was diverted to his left and when he looked back it was too late to stop. The investigating officer was of the opinion that the skid marks indicated that defendant was traveling at a speed in excess of 50 miles per hour. The accident occurred in a zone normally limited to 35 miles per hour, but in which a 20 miles per hour school speed limit was in effect. The police report states that there were seven official speed warning signs within 1 3/4 blocks of the crosswalk. In addition, the report indicates that three of the vehicle’s four brakes tested out as faulty.

The petition for wardship may have been based on Vitale’s acts in permitting his attention to be diverted while driving at a high rate of speed, failing to appropriately maintain the vehicle’s braking system, failing to note the seven school zone and speed warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard. While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it would rely solely upon Vitale’s failure to reduce speed to the exclusion of his other misconduct.

In People v. Griffin (1967), 36 Ill. 2d 430, the State charged defendant with reckless driving, but the court found the information which the State filed in that case so imprecise that the defendant would not be able to plead a judgment thereon as a bar to a future prosecution arising from the same facts. The particular act or acts which constituted reckless driving may have been any one of a number of acts, such as “driving while intoxicated, or running through a stop-light, or driving at an excessive speed or without brakes, lights or horn; he may have been driving on the wrong side of the road or on the sidewalk, or without keeping proper lookout for children, or any one of dozens of things which might constitute wilful and wanton disregard for the safety of persons or property.” 36 Ill. 2d 430, 432, citing People v. Green (1938), 368 Ill. 242, 254-55. The importance of Griffin here is the court’s discussion of the statutory compulsory joinder protections:

“It does not appear that the compulsory joinder provision of the Criminal Code (Ill. Rev. Stat. 1965, chap. 38, par. 3—3,) would protect him against subsequent prosecution for each of the specific [traffic] offenses. Section 3 — 3 requires that offenses be prosecuted together only ‘if they are based on the same act.’ The comments of the drafting committee make it clear that this provision was not meant to require joinder of separate offenses resulting from the same ‘conduct’ (Committee Comment, S.H.A. chap. 38, par. 3—3,) which is defined as ‘an act or a series of acts.’ (Ill. Rev. Stat. 1965, chap. 38, par. 2—4.) Since each act in the example stated would be a separate offense, and might, in appropriate circumstances, constitute reckless driving, the compulsory joinder provision would not prevent successive prosecutions for reckless driving and for each of the other violations.” 36 Ill. 2d 430, 433-34.

The committee comments to this section state that “Section 3—3 is not intended to cover the situation in which several offenses — either repeated violations of the same statutory provision or violations of different provisions — arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.” (Ill. Ann. Stat., ch. 38, par. 3—3, Committee Comments, at 202 (Smith-Hurd 1972).) Of course, involuntary manslaughter is a “nonintent” offense, and the minor here had no “purpose or plan,” but his conduct did involve multiple offenses — violations of different statutes arising from a series of acts contributing to the result with which he is now being charged.

It is clear that section 3—3 cannot be applied to bar the wardship proceedings here, where the State may seek to prove the homicide allegations by showing any or all of a number of different acts by respondent to be reckless and likely to cause death or great bodily harm.

By its opinion the majority has adopted, sub silentio, the “episodic immunity” or “same transaction” test unsuccessfully urged by the minority in the United States Supreme Court in Ashe and Brown, and rejected by both this court and our General Assembly, as earlier noted. In accomplishing this result both the Federal constitution and Federal case law are misinterpreted. If my colleagues feel compelled to expand the protections of the double jeopardy clause, I would have thought it preferable to do so by enlarging the prior interpretations of article 1, section 10, of our own constitution instead of misapplying Federal constitutional provisions. By choosing the latter course the majority has muddied what have been reasonably clear waters.

While I find no bar to prosecution of this wardship proceeding, I would call attention to the sentiments in United States v. Wilson (1975), 420 U.S. 332, 343, 43 L. Ed. 2d 232, 241, 95 S. Ct. 1013, 1021. Generally speaking, considerations of fairness and finality, as well as judicial efficiency and economy, would seem to indicate the undesirability, even though permissible, of successive prosecutions for offenses arising from the same “episode” or “transaction.” This philosophy might well guide the exercise of prosecutorial discretion, but the difficulty of an absolute rule is amply demonstrated by the majority holding here which permits a defendant who has caused two deaths to escape punishment other than a nominal fine.

I would reverse the judgments of the appellate and circuit courts and remand to the circuit court of Cook County for further proceedings.

MR. JUSTICE RYAN joins in this dissent.

       This opinion was prepared by the late Mr. Justice Dooley and was adopted and filed as the opinion of the court.


author: MR. JUSTICE CLARK

text:
    (No. 48557.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOSE MEDINA, Appellee.

      Opinion filed April 3, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (James B. Zagel, Jayne A. Carr, Donald B. Mackay, and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Laurence J. Bolon, Joan S. Cherry, Michael R. Lewis, and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    Albert J. Armonda, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Jose Medina, was indicted on two counts of murder for the killing of Cesar Jacquez on July 27, 1973. The circuit court of Cook County sustained the defendant’s motion to suppress oral and written statements made by the defendant. The State appealed to the appellate court, which affirmed the circuit court order, pursuant to Supreme Court Rule 604(a) (53 Ill. 2d R. 604). We allowed the State’s petition for leave to appeal. 58 Ill. 2d R. 315.

The appellate court has adequately detailed the facts. (37 Ill. App. 3d 1029.) The pertinent facts for our analysis follow. On July 29, 1973, between 2:15 a.m. and 3:15 a.m., Officers John Deloughery and Thomas Sherry and other officers of the Chicago Police Department, in plain clothes, went to the defendant’s residence to arrest him. His parents appeared at the entrance. The policemen entered, awakened the 17-year-old defendant, and placed him in their custody. He was not advised of his rights until after he was at the police station. His sister, Julie Medina, who had called the family attorney, Albert Armonda, told the defendant, as he was leaving with the police, to say nothing. He was taken to Area Four police headquarters. (The family and the attorney did not locate the defendant until late in the afternoon of July 29.) Upon arrival at the police station, still in the early morning hours, the defendant was taken to the interrogation room, advised of his constitutional rights, and questioned — apparently still handcuffed. The defendant refused to answer questions and asked for his attorney and so interrogation ceased. Around 8 a.m. another officer, Thomas O’Connor, approached the defendant. Officer O’Connor told him that several witnesses had accused him of shooting Jacquez. The defendant orally denied he shot Jacquez and only admitted driving the car. The defendant then agreed to sign a written statement, which, among other things, contained the defendant’s “knowing” waiver of his constitutional rights, and his admission that he drove the car while George “Tingo” Rodriguez shot Jacquez.

The trial court concluded that the defendant had been advised of his constitutional rights and had expressed an intent to make no statement until his lawyer was present. It then found the evidence insufficient to support a conclusion that the defendant had made a knowing and intelligent waiver of his rights — to remain silent and to have an attorney present — prior to his statements.

The issue is whether the circuit court properly suppressed the confession of the defendant. The State does not contend the findings of fact made by the trial court are contrary to the manifest weight of the evidence. Rather, it contends that both the appellate and circuit courts incorrectly applied existing law to the facts in this case. We disagree. We see the specific issue not as a mistaken application of the law but simply whether the evidence demonstrates that a knowing and intelligent waiver of his constitutional rights preceded the defendant’s statements.

It is for the trial court to resolve conflicts in the evidence presented. The trial judge, having observed the demeanor of witnesses, having heard their testimony and having evaluated other evidence, is the one best equipped to determine the voluntariness of a confession. More than once this court has observed: “ ‘The preliminary inquiry into the voluntary nature of the confession is a question of its competency and is for the trial court. In making its decision the court is not required to be convinced beyond a reasonable doubt. [Citations.] The finding of the trial court on this question will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence. [Citations.]’” (People v. Higgins (1972), 50 Ill. 2d 221, 225, quoting People v. Johnson (1970), 44 Ill. 2d 463, 469-70. Accord, People v. Burbank (1972), 53 Ill. 2d 261, 266; People v. Brooks (1972), 51 Ill. 2d 156, 165.) Although this may be a close case, we believe a trial court properly and reasonably could have concluded the evidence insufficiently demonstrated a knowing and voluntary waiver of the defendant’s rights.

Although we wonder — but do not pursue further — why the defendant was not advised of his rights as soon as he was in the custody of the police officers at his family residence, we do not doubt that he was given his Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612)-later at the station house. The only question is that of waiver of those rights.

The United States Supreme Court has pointed out:

“ ‘[C] ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023. Accord, People v. Turner (1973), 56 Ill. 2d 201.)

The particular facts and circumstances in this case support the trial court’s findings. The defendant was only 17 years old and had no prior arrests nor previous experience with the criminal justice system. He had been awakened in the middle of the night and taken to a police station, and had been there four to five hours when Officer O’Connor, who was not aware that defendant had refused to answer questions up to then and had asked for counsel, entered the interrogation room. Although conflicting, the various testimonies evidence that Officer O’Connor told the defendant that witnesses, who accused him of doing the shooting, would be coming to the station to view him in a lineup. The defendant testified that Officer O’Connor also told him his silence, in the face of such accusation, was an admission. The defendant denied he did the shooting, and signed a written confession which stated that he had been advised of his rights, that he waived them and that he drove the car during the shooting. These circumstances, coupled with the difficulty his family and lawyer had in locating the station where the defendant was being held, support the findings of the trial court that the defendant did not knowingly and intelligently waive his right to remain silent and have counsel present. Under the circumstances, the defendant’s reported reply, “I know all that,” to Officer O’Connor’s apparently incompletely given Miranda warnings, just does not amount to an effective waiver.

In the intimidating atmosphere of an interrogation room, many otherwise hardy individuals, except those with exposure to and experience with the procedure, may succumb, even after assertions of their right to remain silent and right to have counsel, to the implication that “silence in the face of accusation is itself damning.” This accounts for the Supreme Court’s admonition in Miranda, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612:

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.” (Emphasis added.) (Accord, People v. Henenberg (1973), 55 Ill. 2d 5, 10.)

As this court approvingly quoted in Henenberg, 55 Ill. 2d 5, 11, “‘The language of the Supreme Court in Miranda could hardly have been more uncompromising. ’ ”

Whether or not Officer O’Connor actually knew of the defendant’s previous request for counsel, “we here must impute the notice that counsel had been requested” to Officer O’Connor. (People v. Blanchard (1967), 37 Ill. 2d 69, 73.) Accordingly, we conclude that the statements, in these circumstances, were in violation of Miranda.

The State would have us believe People v. White (1975), 61 Ill. 2d 288, People v. Morgan (1977), 67 Ill. 2d 1, and People v. McKinley (1977), 69 Ill. 2d 145, require reversal. We do not agree for two reasons. First, while the State asserts that White and Morgan rejected the view that once the defendant has invoked his right to remain silent he may not be questioned again until counsel is present, we are not concerned here only with the defendant’s asserted right to remain silent but also his asserted right to have an attorney present. In Michigan v. Mosley (1975), 423 U.S. 96, 102-03, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326, the Supreme Court clearly distinguished between those two rights. Discussing the right to remain silent, that court ruled that Miranda cannot reasonably or “sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” But the Supreme Court added, “[Mosley] does not involve the procedures to be followed if the person in custody asks to consult with a lawyer,” and then quoted Miranda: “ ‘If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. ***’ ” (423 U.S. 96, 101 n.7, 46 L. Ed. 2d 313, 320 n.7, 96 S. Ct. 321, 325 n.7.) (Emphasis added.) When the statements were taken from the defendant, an attorney, requested by the defendant, was not yet present. Accord, People v. Washington (1977), 68 Ill. 2d 186, 192-93.

Second, the three cases above are distinguishable. In People v. White (1975), 61 Ill. 2d 288, this court affirmed the trial court’s conclusion that a confession, taken two days after the arrest, was properly received. In that case, this court did not see the issue as a violation of the right to counsel but. as a violation of the Miranda procedural safeguards (failure to furnish the defendant a lawyer when he said he wanted one). It then went on to find that the effect of the violation was dissipated by the lapse of time (two days) and several admonitions of constitutional rights to the defendant. Besides these distinguishing features, there are others. In White, it was not the defendant’s first exposure to the criminal justice system; before each period of questioning, he was advised of his rights and he said he understood them; the interrogations, prior to the confession (to the murder) at issue in White, were for unrelated offenses.

In People v. Morgan (1977), 67 Ill. 2d 1, the defendant, after receiving his Miranda warnings, said he wished to give a statement without the presence of counsel. He changed his mind and was placed alone in a room. While the interrogating assistant State’s Attorney attempted to get the public defender, a police officer entered the room. The defendant volunteered to finish the statement. The policeman told the assistant State’s Attorney who, again, advised the defendant of his rights. The statement was then given. This court found the confession properly received. In Morgan, there was no further interrogation, once the defendant expressed his desire for an attorney, and it is clear he asked to complete the statement. Only if we wish to second guess the trial court could we conclude Officer O’Connor’s encounter with the defendant at 8 am. was not a resumption of the questioning. We are not willing to do this because there is enough in the record to support the trial court.

If we were to find People v. McKinley (1977), 69 Ill. 2d 145, controlling, again, we would have to reverse the trial court’s finding that the defendant requested counsel. Evidence in the record, again, supports the trial court. Aside from other distinguishing factors, that is the most obvious in McKinley: there was no request for counsel. (Moreover, the statement in McKinley was not even prompted by interrogation.)

“Although we agree with the People that the right to counsel may be waived [citation], we conclude that the People did not meet the ‘heavy burden *** to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained counsel.’ (Miranda v. Arizona, 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.)" (People v. Washington (1977), 68 Ill. 2d 186, 194.) Hence, we agree with the appellate court that the findings of the trial court were not contrary to the manifest weight of the evidence.

Judgment affirmed.