APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
L. WILSON, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The defendant was charged with murder and with obstructing justice. The jury found him not guilty of murder but guilty of obstructing justice and he was sentenced to three years probation, the first year to be served in the House of Correction. He is presently free on bond pending the outcome of his appeal, which raises two issues:
(1) Whether the statute of limitations had run on the charge of obstructing justice; and
(2) Whether proper principles of sentencing require that he serve more time in jail as a condition of his probation.
We conclude that his first contention is well founded and therefore reverse without reaching the second.
On September 18, 1966, the defendant, after experiencing dizzy spells and a blackout, found his stepfather's body on the kitchen floor of their home, lying in a pool of blood, with a knife stuck in his chest. The defendant, afraid to call the police because suspicion would turn on him, threw away the knife, cleaned up the blood and concealed the body in the basement until the following night, when he buried it in the back yard of their home.
• 1 In May of 1969, the defendant, who had just finished his basic training in the United States Army, related these facts to his chaplain and, on the latter's advice, told the same story to the Military Police. He was arrested and charged, on October 24, 1969, with the murder of his stepfather and with obstructing justice by knowingly concealing physical evidence of said murder.
A motion to dismiss the count charging the defendant with obstructing justice was made on the ground (conceded by the State) that said charge was a misdemeanor on which the statute of limitations is one year and six months and that (not conceded) said statute started to run on September 19, 1966, the day the defendant buried his stepfather's body. The trial court denied the motion and the case went to trial with the results above indicated.
The first issue is, obviously, whether the one and a half year statute of limitations had run on the charge of obstructing justice by concealing physical evidence of the murder.
The defendant's contention is that the statute began to run on September 19, 1966, the night he performed his last act (viz: burying his stepfather's body) of obstructing justice in the case. On this basis the statute had run more than a year and a half before his indictment on this charge.
The State advances two theories in contending that the statute did not commence to run until the defendant had disclosed to the authorities that he had concealed evidence.
The first theory is set forth as follows in the State's brief:
"The Criminal Code at article 3-8 provides that when an offense is based upon a series of acts that the period of limitations starts at the time when the last such act is committed. `Act' is defined in Article 2-2 as including a failure or omission to take action. The defendant's intent to conceal the evidence; that is, the body of Robert Bourrell, coupled with his failure or omission to dig up the body and indicate to the authorities that evidence had been concealed, was a failure or omission to take action. These acts of Thomas Criswell continued to occur until the middle of May, 1969, when knowledge of the evidence came to the attention of the prosecuting authorities. Under Section 3-8 of Ch. 38, the limitations period ...