APPEAL from the Circuit Court of Henderson County; the Hon.
STEPHEN G. EVANS, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The State here appeals from an order of the Circuit Court of Henderson County dismissing a complaint for failure to allege defendant's mental state in charging unlawful entry into a motor vehicle in violation of section 4-102(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 4-102(b)). The sole issue on appeal is whether mental state is a required element of the offense. Section 4-102 provides as follows:
"It is a violation of this Chapter for:
(b) A person, without authority to do so, to tamper with a vehicle or go in it, on it, or work or attempt to work any of its parts or components, or set or attempt to set it in motion."
A person found guilty of that offense commits a Class A misdemeanor, punishable by up to one year imprisonment and/or a $1,000 fine.
The complaint alleged that on November 15, 1977, defendant "without authority to do so went into a motor vehicle of the Village of Oquawka, being a 1975 Plymouth Grand Fury bearing 1977 Illinois Registration No. M-730 without the consent of the Village of Oquawka." Defendant pleaded not guilty and later filed a motion to dismiss the complaint for failure to state an offense by not alleging a mental state. The trial court granted the motion to dismiss, and upon the State's motion for reconsideration, the dismissal was affirmed. The court granted leave to file an amended complaint, but instead the State perfected this appeal.
• 1 The State contends that the violation of the Illinois Vehicle Code charged here is an offense for which the legislature has imposed absolute liability. In order to protect the public effectively, the government may, in the exercise of its police power, make the performance of a specific act a crime regardless of either knowledge or intent. People v. Fernow (1919), 286 Ill. 627, 122 N.E. 155; People v. Billardello (1925), 319 Ill. 124, 149 N.E. 781.
In numerous cases the courts have construed violations of the Illinois Vehicle Code to be absolute liability offenses. For example, the cases of Fernow and Billardello involved violations of the statute prohibiting possession of a motor vehicle from which the manufacturer's serial number has been removed, defaced, or destroyed. (1917 Ill. Laws, § 156, at 685.) The supreme court ruled that the statute created a crime which did not require criminal intent or knowledge and that section 15b was a constitutional exercise of the police power. In People v. Espenscheid (1969), 109 Ill. App.2d 107, 249 N.E.2d 866, Justice Ryan, speaking for the court, stated the general rule as follows:
"The only intention necessary to render a person liable to a penalty for a violation of the automobile law is the doing of the act prohibited." (109 Ill. App.2d 107, 111, 249 N.E.2d 866, 868.)
A defendant's intent or knowledge has been held immaterial on the question of guilt where the offense is driving while operator's license is suspended or revoked (People v. Turner (1976), 64 Ill.2d 183, 354 N.E.2d 897; People v. Strode (1973), 13 Ill. App.3d 697, 300 N.E.2d 323; People v. Espenscheid; People v. Jensen (1960), 24 Ill. App.2d 302, 164 N.E.2d 228, aff'd (1960), 21 Ill.2d 52, 171 N.E.2d 16); where the offense is unlawful use of driver's license (People v. Van Cura (1977), 49 Ill. App.3d 157, 364 N.E.2d 564, cert. denied (1978), 434 U.S. 1034, 54 L.Ed.2d 782, 98 S.Ct. 767); and where the offense is operating a vehicle under a fraudulent permit (People v. White Brothers Equipment Co. (1978), 63 Ill. App.3d 445, 380 N.E.2d 396). In the latter case the court stated:
"Statutes concerned with the registration and identification of motor vehicles and the operation of motor vehicles on the public highways are generally construed as imposing liability without fault or absolute liability. In other words, being malum prohibitum, no element of scienter or intent is involved in the violation of such statutes. (See generally Ill. Ann. Stat., ch. 38, par. 4-9, Committee Comments, at 281 (Smith-Hurd 1972).) This principle has been applied in numerous Illinois cases and is so well established as to require no discussion." 63 Ill. App.3d 445, 450, 380 N.E.2d 396, 400.
Defendant cites one case, People v. Nunn (1978), 65 Ill. App.3d 981, 328 N.E.2d 1305, appeal allowed (1979), 74 Ill.2d 588, where a divided court held that knowledge is a required element of the offense of leaving the scene of an accident (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-401(a)). The contrary result was reached in People v. Walker (1974), 18 Ill. App.3d 351, 309 N.E.2d 716.
The test for determining when a mental state is an element of a crime is set out in section 4-9 of the Criminal Code of 1961 (Ill. Rev. Stat. ...