APPEAL from the Circuit Court of Champaign County; the Hon.
SARAH M. LUMPP, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was convicted upon the verdict of a jury of illegal transportation of an alcoholic liquor in violation of section 11-502 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-502). He was found not guilty of driving while under the influence of alcohol. After his trial, defendant was sentenced to 6 months' conditional discharge.
The trial court refused defendant's tendered jury instruction which listed knowledge as an element of the offense of illegal transportation. Defendant appeals both this refusal and his sentence. We reverse.
Without reciting at length the evidence, it appears that defendant was involved in an accident in the city of Champaign. During the police investigation of the accident, a paper bag containing a half-empty bottle of whiskey was found on the transmission hump separating the driver and passenger seats. The bottle belonged to defendant's passenger and defendant had no knowledge it was in the car.
• 1, 2 Most crimes require proof of some knowledge or intent on the part of the defendant to support a conviction. Section 4-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4-9) provides that in misdemeanor offenses where there is no possibility of imprisonment and no fine greater than $500 may be imposed no mental state need be proven. Such offenses create an absolute statutory liability. Motor vehicle regulations for the protection of the public safety are generally such offenses. See People v. Strode (1973), 13 Ill. App.3d 697, 300 N.E.2d 323; People v. Sharp (1975), 26 Ill. App.3d 1051, 326 N.E.2d 213, rev'd on other grounds, 64 Ill.2d 183, 354 N.E.2d 897.
• 3 In these cases, however, absolute liability was established for acts the very nature of which require some conceptualized requirement of knowledge of intent. One cannot, for instance, be arrested for driving without a valid driver's license unless he is knowingly engaged in the act of driving. That is not the case here, as the operator of a motor vehicle, including the defendant here, can never know for certain the possessions of his passenger. To establish absolute liability for such transgressions would be tantamount to punishing a defendant for the sins of his neighbor sins that he had no knowledge of nor reason to have knowledge of. In this light, "absolute liability" for this offense is contrary to the very basis of our criminal law which requires some knowing omission or commission. We therefore are of the opinion that it was error for the trial court here to refuse defendant's tendered instruction requiring knowledge as an element of the offense and reverse defendant's conviction and remand the case for a new trial.
Mr. JUSTICE MILLS, dissenting:
The somewhat offhand and cavalier dismissal of this issue by the majority is disturbing.
But what is more important, I believe my brothers are wrong.
The majority recognizes the statutory absolute liability provisions of section 4-9 of the Criminal Code of 1961 and that motor vehicle regulations generally fall under its purview. But, they say, the charge at bar of illegal transportation of alcoholic liquor is distinguishable from such cases in that scienter, or "knowledge" of the presence of the intoxicant, is an essential element. Such distinction with controlling precedents and Illinois case law escapes me.
In the exercise of police power for the protection of the public at large, the legislature may create offenses malum prohibitum wrong only because they are prohibited, not because they are wrong in themselves or are inherently evil. And historically, motor ...