delivered the opinion of the court:
The defendant, Cletus L. Hiatt, was charged with 20 counts of child pornography (possessing 20 different pornographic photographs of his two minor children). (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1.) Prior to triаl, the defendant filed a motion to dismiss, alleging that the charges were barred by the mandatory joinder provisions of sections 3 — 3 and 3 — 4(b) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, рars. 3 — 3, 3 — 4(b)). Following a hearing, the trial court denied the motion. The defendant appeals.
On May 22, 1990, police executed a search warrant at the defendant’s residence in Creve Coeur, Illinois. Among other things, they seized numerous photographs, VHS tapes, a video camera, and a VCR. About a week later, the defendant’s ex-wife told poliсe the identity of all of the individuals in the photographs seized on May 22. She further told police that the defendant took the pictures, that two of the individuals were the defendаnt’s children, and that the children were between the ages of 11 and 14.
On June 19, 1990, the defendant was charged by indictment in Peoria County with the offense of child pornography under sectiоn 11 — 20.1(a)(i)(ii) of the Code. The indictment alleged that the defendant knowingly videotaped T.T., a child he knew to be under 18, while she engaged in an act of sexual intercourse. Following а jury trial, the defendant was acquitted of the charge.
On July 26, 1990, the defendant was charged by indictment in Tazewell County with child pornography under section 11 — 20.1(a)(6) of the Code. The defendant had also been charged by information with that offense on May 23, 1990. The indictment alleged that the defendant knowingly possessed a pornographic video tape of а minor child, T.T. The trial court subsequently dismissed the charge based on double jeopardy grounds apparently because the defendant had previously been acquitted of videotaping the child in Peoria County.
Thereafter, the defendant was charged by indictment in Tazewell County with 20 counts of child pornography (Ill. Rev. Stat. 1989, ch. 38, par. 11 — 20.1(a)(6)). These charges alleged that the defendant possessed 20 different pornographic photographs of his minor children, J.H. and T.H. Prior to trial, the defendant filed a motion to dismiss, contending that thе mandatory joinder provisions of section 3 — 3 of the Code barred a prosecution for those offenses, since the State knew of the photographs at the time оf the previous indictment, yet failed to charge the offenses in a single prosecution. The trial court denied the defendant’s motion to dismiss, finding that the Tazewell County State’s Attornеy’s office did not “know” of the instant charges at the time the earlier possession of a pornographic video tape of T.T. charge was filed. Defendant then filed a notice of appeal from the denial of the motion to dismiss.
On appeal, the defendant first argues that sections 3 — 3 and 3 — 4 of the Code bar the State’s prosecution of the instant charges.
In response, the State initially contends that the trial court’s denial of a motion to dismiss the case based on former jeopardy grounds amounts to аn interlocutory order which is not appealable.
The State’s argument was recently rejected in People v. Tkomann (1990),
Turning to the issue raised by the defendant, we note that section 3 — 4(b) of the Code states in relevant part:
“A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the sаme offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offеnse *** with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(b).)
Section 3 — 3 of the Code provides:
“If *** 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 ***, if they are based on the same act." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3.
Here, the defendant argues that the instant charges were barred by sectiоn 3 — 4 of the Code because: (1) the present charges were known to the Tazewell County State’s Attorney’s office at the time of the first Tazewell County charge; (2) the first Tazewеll County charge, which was dismissed on double jeopardy grounds, was an “acquittal” within the meaning of section 3 — 4(b) of the Code; and (3) the former charge and the latter charges were based on the same act. See People v. Baker (1979),
We agree that the present charges are barred. The State’s argument that the prosecutor did nоt know of the possibility of charges stemming from the photographs is not persuasive. The videotape and the photographs were discovered in the same search. Moreover, it was clear that the photos were of children under 18 years old and the defendant’s ex-wife verified that fact six days after the search. Thus, the State was aware of the criminal nature of all the material at the time of the initial charge.
Regarding whether the two offenses should be considered “the same act” within the meaning of sеction 3 — 3 of the Code, we find that People v. Baker (1979),
The State relies on People v. Thomann (1990),
In Thomann, the defendant was prosecuted for possessing and disseminating child рornography. In a later proceeding, the defendant was charged with possessing advertisements allegedly containing similar material. In holding that the charges were not bаrred by section 3 — 3, the court noted that “[sjection 3 — 3 is not intended to cover the situation in which several offenses — either repeated violations of the same statutory рrovision 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.” (Emphasis omitted.)
We find that Thomann is distinguishable from the present case on the basis that there, the police seized the child pornography that formed the basis for the second charge several months after the defendant committed the first crime. Here, the contraband items involving both charges were seized during a single search on the same dаy that the defendant was alleged to have possessed them. Under these circumstances, the State was required to bring the charges in a single prosecution.
The State furthеr argues that the initial Tazewell County charge, which was dismissed on double jeopardy grounds, was not an “acquittal” within the meaning of section 3 — 4(b) of the Code.
We disagree. Sectiоn 2 — 1 of the Code defines an acquittal as “a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized tо try the case without a jury.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 1.) Criminal or penal statutes are to be strictly construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. People v. Scribner (1982),
We find that the statutory definition of acquittal is broad enough to encompass a dismissal basеd on double jeopardy grounds. An acquittal may occur even though the question of guilt or innocence has never been submitted to the trier of fact such as when a defendant is discharged on speedy trial grounds. See Black’s Law Dictionary 25 (6th ed. 1990).
For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed.
Reversed.
BARRY, P.J., and STOUDER, J., concur.