APPEAL from the Circuit Court of Kankakee County; the Hon.
VICTOR N. CARDOSI, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendant John R. Stiles was indicted in separate counts for murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)(1)) and concealment of homicidal death (Ill. Rev. Stat. 1975, ch. 38, par. 9-3.1). Following a jury trial in the Circuit Court of Kankakee County, he was acquitted of murder but convicted of concealment of homicidal death, and was sentenced to three to nine years. He contends on appeal that he was not proved guilty beyond a reasonable doubt, and that the trial court abused its discretion in imposing his sentence. We disagree.
On May 20, 1974, a deputy sheriff discovered the body of Steven Preston lying some eight feet from the top of a drainage ditch in a secluded rural area. The ditch was 10 to 15 feet deep and over 6 feet wide and the body could not be seen from the roadway. Jimmie Buttler, the State's chief witness, pleaded guilty to murdering Preston and received a 14- to 20-year sentence for the crime. He testified that on the night of May 13, 1974, he was at the apartment of Shirley Robey with Robey, Marenda Sanford, Mrs. Preston and defendant. Steven Preston came to the apartment to see his wife, and began to argue with her about her relationship with defendant. Preston became angry when Robey asked him to leave, and he soon began arguing with Buttler too. During the argument Buttler struck Preston with his fist, breaking his hand and knocking the smaller Preston unconscious. Buttler testified that Mrs. Preston told defendant they would have to do something to her husband or else he would kill them both, and that Mrs. Preston and defendant asked him if he knew any place where they could get rid of Steven Preston. He agreed to show them a place in Hopkins Park.
Buttler, Sanford, Mrs. Preston and the victim departed in Steven Preston's car, while defendant and Robey followed behind in defendant's automobile. Buttler testified that after they arrived at the park, at Buttler's request defendant removed a tire iron from the front seat of his car, attempted to hand it to Buttler who refused to take it, and then struck the victim two or three times behind the ear. Buttler and defendant grabbed the body and threw it in an adjacent ditch. Buttler then drove Preston's car further down the lane, retrieved the tire iron and returned to defendant's car. Defendant drove everyone back to Kankakee in his car. Along the way, Sanford threw the tire iron out the window at Buttler's suggestion. Buttler testified that Mrs. Preston rifled her husband's wallet, removing a check and some cash, and then threw it out the window. Buttler continued that on May 18, he, defendant, and a friend returned to the scene with a shovel to bury the body. Preston's body could not be seen from the lane, and they left the scene without burying him. He also stated that at Mrs. Preston's urging, he and Marenda Sanford drove Preston's second car to Indiana where they tried to burn it.
On cross-examination, Buttler admitted that the tire iron actually belonged to him and that it was his idea to use it on the victim. He also admitted that in exchange for his testimony the State had promised to request the parole board to commute his sentence.
The other people who had been present at the apartment on May 13, 1974, also testified at trial and contradicted some of Buttler's testimony. Robey, Sanford and Mrs. Preston had waited in defendant's car while defendant and Buttler were with the victim. They testified that defendant returned to the car before Buttler. Robey and Sanford testified that they did not see defendant carrying a tire iron to Buttler although Mrs. Preston apparently did see this, and defendant admitted doing so. Robey stated that she did not see Mrs. Preston rifle the wallet, and Mrs. Preston said that Buttler actually removed the check from the wallet and ordered her to cash it. All of these witnesses stated that they feared Buttler, who was physically a very large man, that he threatened them to keep their silence, and that he was totally in command during the events in question.
Defendant admitted having sexual relations with the victim's wife, but denied killing her husband or helping Buttler dispose of the body. He stated that he did not immediately realize Buttler's intention to commit murder, but that when he did he could do nothing about it. He testified that he returned to the scene on May 18 with Buttler and defendant's friend because Buttler wanted to retrieve some papers from Preston's car. Defendant admitted it was his idea to bury the body, but stated that he suggested this in order to find an excuse for bringing along another person to avoid having to be alone with Buttler.
The jury was given the following instruction, tendered by the defendant and objected to by the State concerning the word "conceal":
"When I use the word, conceal, I mean something more than simple withholding of knowledge or failing to disclose but including some affirmative act on the part of the person looking toward the concealment of the homicidal death."
After deliberation, the jury acquitted defendant of murder but found him guilty of concealing a homicidal death.
Defendant's first contention is that he was not proved guilty beyond a reasonable doubt of the offense of concealing a homicidal death under section 9-3.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-3.1), which provides:
"§ 9-3.1 Concealment of Homicidal Death.
"(a) 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.
(b) Nothing in this Section prevents the defendant from also being charged with and tried for the murder or manslaughter of the ...