APPEAL from the Circuit Court of Clark County; the Hon. CASLON
K. BENNETT, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, Thomas Frank Hummel, on January 19, 1976, entered pleas of guilty to charges that he committed the offenses of concealment of a homicidal death and theft of property valued in excess of $150. (Sections 9-3.1 and 16-1(a), (e)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 9-3.1, 16-1(a), (e)(3)).) For both offenses, the trial court sentenced defendant to concurrent terms of 2 to 6 years imprisonment, of which defendant served approximately 6 months in the penitentiary plus the time he served in the county jail before being granted bail in the amount of $5,000 by this court. After sentencing, defendant filed a timely motion to withdraw his plea and to vacate the court's judgment, however, the trial court denied that motion on March 22, 1976. The instant appeal involves allegations that the trial court erred in denying that motion.
Briefly, the facts giving rise to defendant's prosecution are as follows: On September 27, 1975, in rural Clark County, defendant and his brother-in-law, James Baker, killed and butchered a steer belonging to Charles Morgan with the intention of transporting it to their home in Terre Haute, Indiana. After quartering the animal, defendant and Baker encountered Everett Livvix. Defendant dropped the hind quarter he was carrying and fled into a nearby corn field, while Baker approached Livvix, fatally shooting him with two shotgun blasts.
Defendant did not see the fatal shooting, but he was able to hear the distant shots from Baker's weapon. Shortly thereafter, he exited from the field when Baker called to him. Baker asked, "Do you know what I just done [sic]?" Defendant, however, did not respond. Defendant and Baker next went to the home of defendant's parents and then returned to Terre Haute. Later that same day, defendant drove his car to the Wabash River bridge on Route 63 in Vigo County, Indiana, where Baker disposed of the shotgun and instruments used in butchering the steer by throwing them into the river. At no time did Baker tell defendant that he had shot or murdered the decedent. On the following day, defendant heard a radio report that a man had been found shot to death near his parent's home. Two days after the offenses were committed, defendant and Baker were arrested and charged with murder.
Section 9-3.1(a) of the Criminal Code of 1961 provides:
"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." (Ill. Rev. Stat. 1975, ch. 38, par. 9-3.1(a).)
This statute contains two elements whose presence must be established in order to prove the offense: (1) an act of concealment, and (2) the mental state of knowledge that the victim died as a result of a murderous attack.
Identification of an act of concealment is not an easy matter. We have held that, in order to be found guilty of the offense of concealing a fugitive, one must commit an act of concealment which requires more than a failure to disclose knowledge that another person committed an offense. (People v. Donelson (1977), 45 Ill. App.3d 609, 359 N.E.2d 1225.) The Appellate Court for the Fifth District has held that:
"* * * prosecution under section 9-3.1 [is limited] to situations where the body itself is concealed or where the homicidal nature of death is actively concealed, as in making a homicide appear an accident." (Emphasis added.) (People v. Vath (1976), 38 Ill. App.3d 389, 395, 347 N.E.2d 813, 817.)
Wiping fingerprints from the scene of a crime and disposing of weapons used in a crime may also be sufficient acts of concealment on which a conviction could be based. People v. Dyer (1975), 28 Ill. App.3d 436, 438-39, 328 N.E.2d 716.
It may be said that the instant defendant committed an act of concealment in driving Baker to the Wabash River and in waiting by the automobile while Baker threw the murder weapon into the river. Dyer holds that such an act is an act of concealment of a homicidal death and not merely concealment of the murderer's identity. It is, however, unclear that the instant defendant possessed the requisite state of mind, because neither the factual basis of the plea nor defendant's responses to questioning by the court discloses defendant's knowledge of the significance of his acts.
• 1 Defendant admitted hearing the two fatal shotgun blasts as he secreted himself in the field, however, he neither saw the actual killing nor did he at any time see the victim's body. Defendant was neither told of the death by Baker nor did defendant hear a radio report of the homicide before driving Baker to the Wabash River bridge where Baker disposed of the weapons and implements used both in the murder and theft. Defendant might have thought that the fatal shotgun blasts were actually fired in the air for the purpose of frightening the decedent. Defendant might have thought the blasts were nonfatal in character if he thought Baker had fired at the decedent. We, therefore, hold that the factual foundation presented to the judge who accepted defendant's plea was insufficient to establish that defendant knowingly committed the offense of concealing a homicidal death.
• 2 We cannot accept the State's contention that it circumstantially established a factual basis for defendant's plea by showing he concealed his knowledge of the crime. As we have already stated, the facts do not reflect defendant's actual knowledge of the murder, and, even if the record contained such a showing, mere concealment of knowledge alone is insufficient to support the ...