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People v. Nunn

OPINION FILED OCTOBER 19, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

ROY ALAN NUNN, APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Fulton County, the Hon. Charles P. Wilhelm, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Early in the morning of October 30, 1976, Roy Alan Nunn, the defendant, was driving his truck in a westerly direction on U.S. Highway 24 in Fulton County when it swerved into the eastbound lane and struck an auto driven by Mrs. Carol Bedwell. She subsequently lost control of her car and it crashed into another westbound vehicle. Mrs. Bedwell died from injuries she sustained. A criminal information was filed against Nunn in the circuit court of Fulton County, and after a jury trial he was convicted of reckless homicide (Ill. Rev. Stat. 1975, ch. 38, par. 9-3(a)), leaving the scene of an accident (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-401(a)), and driving on a suspended license (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 6-303). He was sentenced to concurrent terms of one to three years on the reckless homicide conviction and 364 days on each of the other convictions.

During the trial the trial judge had refused to instruct the jury that the offense of leaving the scene of an accident involving death or personal injury required proof of knowledge by the accused that an accident had occurred. The defendant appealed only from his conviction on this charge and the appellate court reversed, holding that "knowledge was an element of the offense charged." (65 Ill. App.3d 981, 985.) We granted the People's petition for leave to appeal.

We would first observe that the question this appeal presents is not moot, although the defendant has already served the sentence imposed for leaving the scene of an accident involving death or personal injury. The reason why the appeal will be entertained was illustrated in United States v. Morgan (1954), 346 U.S. 502, 512-13, 98 L.Ed. 248, 257, 74 S.Ct. 247, 253, in which the court stated:

"Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. * * * [W]e think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid."

See also People v. Twomey (1973), 53 Ill.2d 479; People v. Neber (1968), 41 Ill.2d 126.

A so-called "hit and run" statute was first enacted in our State in 1923 as section 41a of the Motor Vehicle Law (Smith-Hurd Ill. Rev. Stat. 1923, ch. 121, par. 242a). It provided in part:

"No person operating or driving a vehicle on the highway knowing that an injury has been caused to a person or damage has been caused to property * * * shall leave * * * without stopping and giving his name [and] residence * * * to the injured party or to a police officer * * *." (Emphasis added.)

Section 41a was revised and superseded in 1935 when Illinois adopted the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1935, ch. 121, pars. 276 through 417). The revised provision of the new act, however, did not contain the term "knowing," which had appeared in the original statute (Ill. Rev. Stat. 1935, ch. 121, par. 311). Excepting minor language changes that are not relevant here, this provision is substantially as it was enacted in 1935. Section 11-401 of the Illinois Vehicle Code, the statute under which the defendant was prosecuted, read:

"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 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).)

Section 11-403 of the Code imposes upon the driver a duty to render aid and to provide specified information to the victims of the accident. Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-403.

The People's principal contention is that the 1935 act in omitting the term "knowing" indicated a legislative intent to make leaving the scene of an accident involving death or personal injury an absolute-liability offense. The People point out that the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4-9) states that absolute liability may be imposed where "the statute defining the offense clearly indicates a legislative purpose" to do so. We are also referred to People v. Walker (1974), 18 Ill. App.3d 351, in which it was held that section 11-401 created an absolute-liability offense and that knowledge of the accused was not required to prove a violation of the statute.

We cannot accept the People's position. Though it has been held that an amendatory change in the language of a statute creates a presumption that it was intended to change the law as it theretofore existed (see, e.g., People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366; State v. Dobry (1934), 217 Iowa 858, 250 N.W. 702), the presumption is not controlling (Chicago & Illinois Midland Ry. Co. v. Department of Revenue (1976), 63 Ill.2d 474; Roth v. Northern Assurance Co. (1964), 32 Ill.2d 40), and may be overcome by other considerations ...


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