APPEAL from the Circuit Court of Montgomery County; the Hon.
DANIEL H. DAILEY, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Thomas J. Vath, was charged in separate indictments in Montgomery County with the murder of William L. Loveless and the concealment of his death by homicide. After a jury trial, defendant was convicted of concealment of a homicidal death and was sentenced to serve from 2 to 10 years' imprisonment. On appeal, defendant contends that the State was barred by collateral estoppel from prosecuting defendant for concealment after defendant was acquitted of murder; that it was fundamentally unfair to allow prosecution of separate but related offenses in separate trials; that the State failed to allege and prove an offense under the concealment statute; that the State failed to prove defendant guilty beyond a reasonable doubt in that the wholly circumstantial nature of the evidence failed to preclude every reasonable hypothesis of defendant's innocence; and that the court erred in excluding defense evidence tending to disprove defendant's presence at the scene of the crime.
The evidence introduced at the second trial was substantially the same as that introduced at the first. The body was found at about 6 a.m. the morning of January 14, 1974, on a country road outside of Litchfield, Illinois. Medical testimony established that the cause of death was numerous blows to the head with a heavy dull-edged object. Because the body had been embalmed prior to the autopsy the time of death could not be established. The examining physician testified that death could have been instantaneous or the deceased could have lingered for as long as 24 hours. The doctor testified that a large amount of blood around the wounds would indicate a lingering death. Other testimony established that a large quantity of blood was present around the head of the deceased when the body was found and that the body contained little blood.
Two occupants of a car that had slid off a road near the area on the night of January 13 testified that they were picked up by defendant about 12:15 a.m. on January 14. The deceased was in the car. Both witnesses positively identified the defendant and the deceased and stated that defendant had identified himself as "Tom Vath." Defendant took them to a friend's house nearby.
Tests were made upon defendant's car and several items taken from it and from his house. Several spots of blood were found matching that of the deceased. In addition, the heel of a shoe owned by defendant was similar to a mark found near the body but no positive identification was made.
Defendant's evidence tended to establish that he had been with another person, not the deceased, early in the evening of January 13 and had returned home by 10:30 p.m. and had remained there until about 5 or 6 a.m. on January 14 when he left for work. In addition, defendant attempted to establish that certain of the blood spots found could have been made by members of his family who had the same blood type as the deceased. Defendant produced evidence that the shoes introduced at trial were not the ones he wore on January 13 and 14.
Defendant has complained of several minute contradictions in the testimony of witnesses in the first and second trials which, because of our decision, we need not consider. The only significant addition to the State's case in the second trial came from a police officer who interrogated the defendant after his arrest. He testified that defendant stated that he had been with a girlfriend on the evening of January 13 and had returned home and gone to bed about 10:30 p.m. In the statement, defendant also denied having seen the deceased since 1972 except that he admitted having seen him in Litchfield, Illinois, 2 days prior to the offense but had not spoken to him.
During the State's case, defendant objected to testimony of events occurring before the murder. The court limited all testimony to events occurring on January 14 and thereafter. This permitted the two witnesses to testify about seeing defendant near the scene at about 12:15 a.m. but precluded defendant's alibi evidence that he was at home in bed at 10:30 p.m. on January 13.
In the view we take of this case we need to comment on but one issue, whether the State alleged and proved an offense under the Statutes of Illinois. The indictment charged that defendant "did knowingly and intentionally conceal his knowledge of the death of William L. Loveless knowing that William L. Loveless died by homicidal means. * * *" The evidence introduced by the State, and assumed to be true for purposes of this opinion, indicates that defendant was present at the scene of the crime and had knowledge that the victim died by homicidal means. Between the time that defendant was present at the scene and the time of the discovery of the body the fact of a homicidal death was not known to the authorities. During that interval defendant did not reveal his knowledge of the homicidal death and later, when interrogated, denied knowledge of the death. Without more, however, we do not believe that the State proved an offense.
It should be observed that the indictment is not in the language of the statute, and we believe that the distinction between concealing ones knowledge of a homicidal death, as charged here, and concealing the death of another who dies by homicidal means is of critical importance. We believe that "concealment" as used in the statute imports more than a failure to share knowledge, presumably with the police or prosecution authorities, but requires proof of acts or conduct calculated to "conceal" a homicidal death.
While the instructions given were in the language of the statute, they were not helpful in illuminating the elements of the offense. Needless to say, the defendant could not be retried for murder; so, our attention must be focused on an act of concealment.
Section 9-3.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-3.1) states, "A person commits the offense of concealment of homicidal death when he conceals the death of any other person with knowledge that such other person has died by homicidal means." In language operatively the same, section 9-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-4) makes it an offense to "conceal the death" of a bastard. Two other concealment statutes, sections 30-2 (misprision of treason) and 31-5 (concealing or aiding a fugitive) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 30-2, 31-5) specifically make concealment of knowledge part of the offense; although, the precise elements of these offenses are not abundantly clear. No case has arisen in Illinois which has considered this problem under any of the four statutes. This court has recently decided People v. Dyer, 28 Ill. App.3d 436, 328 N.E.2d 716 (1975), where the defendant was tried jointly for murder and concealment of a homicidal death. He was acquitted of murder but convicted of concealment. The principle point raised on appeal was that the verdicts were legally inconsistent. We reject this contention. The point here raised was not presented for the court's determination; although, we noted that the record contained sufficient evidence of concealment to support the jury's verdict.
In State v. Watson, 145 Kan. 792, 67 P.2d 515 (1937), the defendant, a justice of the peace, was accused of embezzlement in not turning over money in a criminal case to the county. The court held that mere failure to file a certificate of conviction or to pay money over to the county clerk would now show concealment, stating that, "[c]oncealment is any statement or conduct which prevents another from acquiring knowledge of a fact. Nondisclosure is a failure to reveal facts, and may exist when there is no concealment." 145 Kan. 792, 794, 67 P.2d 515, 517.
In People v. Lefkovitz, 294 Mich. 263, 293 N.W. 642 (1940), the defendant was charged with misprision of a felony for not disclosing his knowledge of a robbery. In ...