{
  "id": 5379207,
  "name": "The People of the State of Illinois, Plaintiff-Appellant, v. John H. King, Defendant-Appellee",
  "name_abbreviation": "People v. King",
  "decision_date": "1974-07-29",
  "docket_number": "No. 73-14",
  "first_page": "256",
  "last_page": "258",
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      "cite": "21 Ill. App. 3d 256"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "cite": "88 Ill.App.2d 212",
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      "reporter": "Ill. App. 2d",
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      "cite": "43 Ill.2d 298",
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      "reporter": "Ill. 2d",
      "case_ids": [
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  "last_updated": "2023-07-14T15:11:03.342046+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellant, v. John H. King, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant, identified as \u201can officer and agent for Basic Machinery and Engineering Co., Inc.,\u201d was charged in two complaints with wilful failure to file income tax returns on behalf of that corporation for Illinois State income taxes withheld from employees for the period ending September 30, 1970, and December 31, 1970, respectively (in violation of Ill. Rev. Stat. 1969, ch. 120, par. 13 \u2014 1301). Defendant\u2019s motion to dismiss both complaints was allowed by the trial court on the grounds that similar charges against the defendant having been formerly dismissed due to the substantial insufficiency of the complaints for their failure to set forth any relationship of defendant with the corporation, the instant charges were barred by the provisions of section 3 \u2014 4(a)(2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3 \u2014 4(a)(2)).\nThe State appeals from the trial court\u2019s dismissal of the complaints.\nThe sole question presented on this appeal is whether jeopardy attached to the former prosecution of offenses which had been dismissed because of a substantial technical defect in the complaint so as to bar this subsequent prosecution.\nSection 3 \u2014 4(a)(2) of the Criminal Code of 1961 provides as foHows:\n\u201c(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:\n(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution.\u201d\nIn support of his contention the defendant points to the following portion of the Committee Comments on this section:\n\u201cPre-trial determinations which should bar a second prosecution (\u00a73 \u2014 4(a)(2)) might involve such issues as time limitation on prosecutions, double jeopardy, pardon, immunity from prosecution, and the substantial insufficiency of the particular wording of the indictment.\u201d (Emphasis added.) S.H.A., ch. 38, \u00a7 3 \u2014 4, at 215 (1972).\nWe note, however, that the Committee Comments on this section include the following:\n\u00b0 a dismissal of a case, sometimes called an acquittal not on the merits, based on variance or defective indictment or information s * e is not a bar to a subsequent prosecution.\u201d S.H.A., ch. 38, \u00a7 3 \u2014 4, at 215 (1972).\nIn 22 C.J.S. Criminal Law \u00a7 246 (1961), it is stated: \u201cthe general rule is that, in order that jeopardy may attach, there must be a valid indictment # * *. So, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put the accused in jeopardy and bar another prosecution:\u201d\nIn People v. Baze (1969), 43 Ill.2d 298, 300, the Illinois Supreme Court said:\n\u201cDismissal of the original indictment * * * at defendant\u2019s behest, for technical insufficiency * * *, is not tantamount to an acquittal; * #\nSee also People v. Somerville (1967), 88 Ill.App.2d 212, 216.\nThe trial court\u2019s dismissal of the original complaints for technical insufficiency (and our affirmance thereof) was not tantamount to an acquittal. Therefore, the trial court erred in sustaining defendant\u2019s motion to dismiss the subsequent complaint.\nJudgment reversed.\nGUILD and SEIDENFELD, JJ., concur.\nThe earlier dismissal of the former charges was affirmed by us in People v. King (1972), 5 Ill.App.3d 357 (abstract opinion). We there held that defendant could not be held criminally accountable for the corporation\u2019s failure to file State income tax returns where the complaint charged him individually as defendant, without naming him as officer of the corporation or setting forth any relationship he may have had with the corporation, and that the complaints were properly dismissed.",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "John J. Bowman, State\u2019s Attorney, of Wheaton (Malcolm F. Smith, Assistant State\u2019s Attorney, of counsel), for the People.",
      "John T. Perry, of Wheaton, for appellee."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellant, v. John H. King, Defendant-Appellee.\n(No. 73-14;\nSecond District\nJuly 29, 1974.\nJohn J. Bowman, State\u2019s Attorney, of Wheaton (Malcolm F. Smith, Assistant State\u2019s Attorney, of counsel), for the People.\nJohn T. Perry, of Wheaton, for appellee."
  },
  "file_name": "0256-01",
  "first_page_order": 280,
  "last_page_order": 282
}