delivered the opinion of the court:
One count of an indictment returned against the defendant, Horace H. McCoIIough, charged him with involuntary manslaughter; the other charged him with reckless homicide. Both counts recited in identical language that the defendant did “recklessly with a willful and wanton disregard for the safety of *** a five-year-old child, increase the speed of the motor vehicle he was driving *** and failed to exercise due caution to avoid colliding with said child upon the roadway *** and did *** kill [the child] without lawful justification in violation of the Criminal Code of 1961, as amended, Section 9—3.” A jury trial was waived and the circuit court found the defendant not guilty of involuntary manslaughter but guilty of reckless homicide, and sentenced him to probation for six months. The Appellate Court, Fourth District, reversed the judgment and held unconstitutional section 9—3(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9—3(b)), which defines the offense of reckless homicide. (8 Ill. App. 3d 963, 971.) We allowed the People’s petition for appeal as a matter of right pursuant to Rule 317. 50 Ill.2d R. 317.
Section 9—3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9—3) provided:
“(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) Penalty.
(1) A person convicted of involuntary manslaughter shall be imprisoned in the penitentiary from one to 10 years.
(2) A person convicted of reckless homicide shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or in the penitentiary from one to 5 years, or both fined and imprisoned.”
Because the reckless driving of a motor vehicle may, if it causes death, be punished either as involuntary manslaughter or as reckless homicide, the defendant contends, and the majority of the appellate court concluded, that the defendant was deprived of due process of law and of the equal protection of the laws. The majority considered that the statute “places within the uncontrolled and unguided discretion of the State’s Attorney, the Grand Jury, and in some instances the trial judge or petit jury, the power to impose different degrees of punishment for different persons who commit identical acts under identical circumstances.” 8 Ill. App. 3d at 971.
The offense of reckless homicide came into our law in 1949 when the General Assembly added section 146a to Division I of the Criminal Code of 1874. (Laws of 1949, p. 716; Ill. Rev. Stat. 1949, ch. 38, par. 364a.) The added section provided:
“Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide. Any person «convicted of reckless homicide shall be punished by a fine of not less than one hundred dollars ($100) or more than one thousand dollars ($1,000), or by imprisonment in the county jail for a determinate period of not less than sixty (60). days and not more than six (6) months, or by both such fine and such imprisonment, or by imprisonment in the penitentiary for an indeterminate period of not less than one (1) year or more than five (5) years.”
This provision was sustained in 1952 against an attack which was similar to that advanced in this case. In People v. Garman (1952), 411 Ill. 279, 285, the court held:
“It was clearly the intent of our legislature to create a crime of lesser degree than manslaughter in the specific instance of a death occurring from the act of another while driving ‘with reckless disregard for the safety of others.’ (See Ill. Rev. Stat. 1951, chap. 38, par. 365.) There is absolutely no reason why the same set of facts may not constitute separate offenses under different statutes. (People v. Crane, 356 Ill. 276; People v. Koblitz, 401 Ill. 224.) The plaintiff in error cannot complain because the jury convicted him of the lesser offense where both involuntary manslaughter and reckless homicide are charged. People v. Carrico, 310 Ill. 543.”
In 1961 the Criminal Code was enacted in the form set out above. The comment of the drafting committee is as follows:
“Section 9—3(b) is designed to indicate clearly that reckless homicide has the same elements as involuntary manslaughter, though relating only to one of the many types of act which may be involved in manslaughter; and that under an indictment for involuntary manslaughter while driving a motor vehicle, reckless homicide may be found as an included offense. The penalty subsection (c)(2) then provides a lesser penalty for reckless homicide, similar to that of the 1961 statute. This seems to be a much simpler method of dealing with the problem than that of using separate sections for involuntary manslaughter and reckless homicide, which would necessitate an explanation of the relationship between them.” Smith-Hurd Ann. Stat. (1972), ch. 38, par. 9—3, p. 246.
The defendant concedes that the reckless-homicide provision was valid between 1949 and 1961, saying: “It is to be noted that the 1949 addition of this section to the Code dealt solely with an offense committed with a motor vehicle. Offenses of involuntary manslaughter could and can be committed with all types of instrumentalities, including an automobile. Reckless homicide could and can be charged, as such, only when committed with an automobile. Thus, it was appropriate under separate statutes from 1949 until 1961, to charge the two crimes under separate counts of an indictment as separate offenses. Both the section on involuntary manslaughter and the section on reckless homicide explicitly and individually characterized the nature of the acts which would constitute the offense to be charged.” We are unable to see why the validity of the conviction should turn upon whether the General Assembly has provided for the two offenses in separate statutes, in separate sections of a single statute, as was the case from 1949 to 1961, or in separate paragraphs of the same section, as is now the case.
The contention that the statute grants undue discretion to the prosecutor in determining the offense for which he will prosecute is without merit. With respect to a similar contention, this court said in People v. Rhodes (1967), 38 Ill.2d 389, 396, in which the defendant had been convicted of attempted theft: “The defendant’s complaint that he should have been charged only with intimidation, which at the time of the events herein related was a misdemeanor, cannot be entertained. The State’s Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged.” The kind of determination committed to the discretion of the State’s Attorney by the statute in this case is the same kind of discretion that is committed to him with respect to a host of other offenses, and is exercised by him every day. It is not, in our opinion, an unconstitutional delegation of authority.
The related contention that the statute is somehow invalid because it delegates authority to a jury or to the trial judge is refuted by our opinion in People v. Keegan (1971), 52 Ill.2d 147, which enumerated a number of statutes in which the penalty for the same conduct ranged from confinement in the penitentiary to a fine and stated:
“Defendant argues that the statute gives unguided discretion to a grand jury or a magistrate to determine whether a defendant should be charged with a misdemeanor or a felony. As demonstrated by the sections above enumerated there are a number of statutes which provide for penalties applicable to felonies and alternatively for penalties applicable to misdemeanors. We have previously held that if the conduct for which a defendant is prosecuted constitutes a misdemean- or under one statute and a felony under another, there is no error in convicting him of the felony. (People v. Singer, 288 Ill. 113.) With respect to the discretion to be exercised in determining under which statute the defendant is to be prosecuted, in People v. Rhodes, 38 Ill.2d 389, at page 396 we said: ‘The State’s Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged.’ We hold, therefore, that in being charged under section 11—4, although the same conduct could have been the basis of a conviction under section 11—5, the defendant was not denied equal protection of the law.” 52 Ill.2d at 153; see also People v. Parks (1971), 48 Ill.2d 232.
The General Assembly may well have established the new offense of reckless homicide in 1949 because it determined that in many cases judges and juries were reluctant to convict a defendant of involuntary manslaughter when the reckless conduct that caused death consisted of the driving of a motor vehicle. And it may also have decided that because of the many potential shadings of reckless automobile driving, ranging from that which borders upon willfulness to that which borders upon negligence, the offense of manslaughter, with its more severe penalties, should be retained for the more serious offenses. Such determinations are not unreasonable, in our opinion, and their expression in the statute deprives no one of due process or equal protection of the laws.
The concurring judge of the appellate court would have reversed the conviction on the ground that the trial judge’s explicit findings of not guilty of manslaughter, but guilty of reckless homicide were “legally inconsistent.” We do not agree with that conclusion either. If the defendant considered himself prejudiced by the separate count charging reckless homicide, he could have moved to dismiss it. He did not do so, and in this situation the finding of guilty with respect to reckless homicide was necessarily an implicit finding of not guilty of the offense of manslaughter. (People v. Reese (1951), 410 Ill. 11; People v. Sobucki (1944), 387 Ill. 358.) The explicit finding as to that offense was surplusage which could not have prejudiced the defendant. There is no problem in this case of res judicata or collateral estoppel.
The judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed; circuit court affirmed.