APPEAL from the Circuit Court of Fulton County; the Hon.
CHARLES H. WILHELM, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This appeal is from the judgment of the circuit court of Fulton County, after trial by jury, finding defendant, Roy Alan Nunn, guilty of reckless homicide, leaving the scene of an accident involving death, and driving on a suspended license, and sentencing him to concurrent terms of from one to three years for reckless homicide and to terms of 364 days on each of the other two charges.
The State's evidence tended to establish that at about 6 a.m. on October 30, 1976, a pickup truck driven by defendant veered from the westbound lane of Highway U.S. 24 near Lewistown into the eastbound lane, striking a car driven by Carol Bedwell. The Bedwell car then traveled into the westbound lane and crashed head-on into another vehicle being driven by a David Smith. Mrs. Bedwell died as a result of injuries sustained in the accident. The truck driven by the defendant continued into Lewistown where defendant and James Omohundro, who had been riding in and who owned the truck, were arrested by the police. The officers testified there was an odor of alcohol about defendant and described how he stumbled and staggered when he got out of the squad car at the police station. Any information pertaining to intoxication or to the symptoms thereof was omitted from the police report filed immediately after the accident. The State's evidence also established defendant had been drinking beer the previous evening and had apparently been driving around Fulton County until the time of the accident.
Defendant's evidence tended to establish he was not intoxicated at the time of the accident, but rather asleep at the wheel. He and James Omohundro, who was asleep, were both awakened by a thud and stopped the truck a short distance down the road to look for damage. Although the truck was dented, defendant saw nothing up the road and therefore assumed they had struck an animal. Omohundro then took the wheel and drove into Lewistown.
The statute which defendant is charged with violating reads as follows:
"The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 11-403 * * *." (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-401(a).)
The only issue on this appeal is whether the trial court erred in failing to instruct the jury the offense of leaving the scene of an accident involving death requires an element of knowledge.
The instruction involved on this appeal reads as follows:
"A person commits the crime of leaving the scene of an accident involving injury or death who, is the driver of a vehicle involved in such an accident, and who fails to immediately stop such vehicle at the scene of such accident, or after stopping fails to return to the scene forthwith, and, in every event remain at the scene until he has given his name, address, registration number of the vehicle he is driving, and rendered reasonable assistance to any person injured."
Defense counsel objected to the giving of this instruction because it contained no requirement that, in order to find the defendant guilty, the jury should conclude defendant had knowledge he had been involved in an accident involving injury or death.
The State contends the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-401(a)) describes an absolute liability offense relying principally on People v. Walker, 18 Ill. App.3d 351, 309 N.E.2d 716. We do not agree.
1 Section 4-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4-9 provides:
"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described."
The extensive committee comments to this section (Ill. Ann. Stat., ch. 38, par. 4-9, Committee Comments, at 281 (Smith-Hurd 1972)) suggest that the spirit and intention of the legislature should be construed as including a mental state unless absolute liability without any required mental state is ...