Appeal from the Circuit Court of Tazewell County, Magistrate
Division; the Hon. CARL O. DAVIES, Judge, presiding. Affirmed.
Rehearing denied June 23, 1969.
Defendant, Glen A. Espenscheid, was tried by a jury in the Magistrate Division of the Circuit Court of Tazewell County and was found guilty of driving while his license was suspended, (Ill Rev Stats 1967, c 95 1/2, § 6-303). He was sentenced to six months at the Illinois State Farm at Vandalia and was fined $500. He has appealed contending: (1) that the information was defective in failing to allege the defendant's mental state and that certain instructions relating to his mental state were improperly refused; (2) that the evidence failed to establish his guilt beyond a reasonable doubt; (3) that an improper remark was made by the Court which was prejudicial to the defendant; and (4) that the sentence imposed was excessive.
Officer Eugene Wamsley, a state trooper, testified for the People that he apprehended the defendant while operating his car on Route 116 in the City of East Peoria, Tazewell County, Illinois between 7:30 and 8:00 p.m. on September 9, 1967. He stopped the defendant for speeding, and upon discovering that defendant had no driver's license, charged defendant with violation of the aforementioned statute. On cross-examination, he further testified that defendant's appearance, walk, and behavior gave the officer the impression that defendant was drunk but that after talking with the defendant, the officer determined that defendant wasn't drunk. The People then introduced into evidence a certificate from the office of the Illinois Secretary of State that the defendant's license had been suspended by the State of Illinois effective January 10, 1967, and that the defendant did not have a valid license on September 9, 1967.
The evidence for the defendant consisted of the defendant's own testimony and the testimony of Evelyn Gardner who was employed by defendant in his tavern business. Defendant testified that he owns and operates a tavern in East Peoria known as the Lake Club. He also is employed by Caterpillar Tractor Company. He stated that he had injured his back at Caterpillar about 2:00 p.m. on September 9, 1967. He got off work at 3:18 p.m. and went to his tavern. At the tavern he took a double shot of whiskey because his back hurt. This didn't do much good so he took two yellow pills that had been prescribed for him approximately two years previously when he had suffered an automobile accident. Then he took another shot of whiskey and one other pill. He said that he had been diagnosed as a diabetic. He stated that his ex-wife had been hiding his car from him. He stated that Thomas Sheidley, a customer at the tavern, told the defendant that he knew where the defendant's car was. The defendant and Sheidley left the tavern about 8:00 p.m. in Sheidley's car to go to defendant's car. The defendant stated that he remembers nothing that occurred between the hours of 8:00 p.m. that evening and 1:00 a.m. in the morning but that Sheidley told him the next day all about the evening's events and that they were on their way back to the defendant's tavern in defendant's car when the defendant was arrested. Evelyn Gardner, an employee in defendant's tavern, confirmed his testimony concerning the defendant's drinking whiskey, taking the pills, and leaving the tavern with Sheidley.
Defendant contends that the information in this case is fatally defective in that it omits the mental state of the defendant and that the defendant's instructions relating to his mental state and condition were improperly refused.
[1-4] The offense of driving a motor vehicle while the operator's license is suspended, (Ill Rev Stats 1967, c 95 1/2, § 6-303) involves absolute liability. As such, mental state as defined in Ill Rev Stats 1967, c 38, § 4-3 through § 4-7 is not involved in the offense. Though dicta, we believe the Court correctly stated the law in People v. Jensen when it said that the particular intent, knowledge, moral turpitude, if any, or purity of motive, if any, of defendant in a prosecution for driving a motor vehicle on a highway at a time when defendant's operator's license was revoked were immaterial on the question of guilt. People v. Jensen, 24 Ill. App.2d 302, 164 N.E.2d 228. The only intention necessary to render a person liable to a penalty for a violation of the automobile law is the doing of the act prohibited. People v. Thexton, 188 Ill. App. 2. Defendant's proffered instructions 1, 2, 4, 5, 8 and 9 all relate to mental state and condition and were properly refused. For the same reason, we reject the contention of defendant that the information was defective.
Section 4-9 of the Criminal Code of 1961 provides as follows:
"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described."
The defendant contends that by virtue of this section the court has no authority to construe section 6-303 of chapter 95 1/2 as involving absolute liability.
We cannot agree with this contention. The committee comments found in SHA, c 38, § 4-9 indicates that this section is an attempt to establish strict limitations upon the interpretation that mental state is not an element of an offense in the many statutory sections which appear to be absolute in language but which have not yet been interpreted by the courts. We feel that the court in People v. Jensen, supra, in a case which predates the enactment of the Criminal Code of 1961, expressed an interpretation of section 6-303 of chapter 95 1/2. This interpretation views section 6-303 as an offense of absolute liability. Subsequently enacted section 4-9 of the Criminal Code will not affect this interpretation.
Defendant's instruction No. 3 which was refused is as follows:
"The court instructs the jury that the defendant has raised the issue of a drugged condition. A person who is in a drugged condition is criminally responsible for conduct unless such condition either: (a) Negatives the existence of a mental state which is an element of the offense; or (b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
"The court further instructs the jury that the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together ...