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People v. Smith

OPINION FILED FEBRUARY 14, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT H. SMITH, A/K/A ROBERT HENRY SNYDER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Ford County; the Hon. William M. Roberts, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On July 28, 1981, an information was filed in the circuit court of Ford County purporting to charge defendant, Robert H. Smith, with the offense of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a)). On March 30, 1982, at the conclusion of a trial, the jury returned verdicts finding defendant guilty of that offense and of the offense of failing to reduce speed to avoid an accident (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-601(a)). The latter verdict was returned upon a form submitted to the jury at defendant's request upon his contention that, under the circumstances, the offense of failing to reduce speed was an included offense of reckless homicide. On that same day, judgments of conviction were entered on both verdicts. On May 3, 1982, defendant's motions in arrest of judgment and for a new trial were denied. On May 3, 1982, the court sentenced defendant on the reckless homicide conviction to 30 months' probation conditioned upon 24 consecutive weeks of periodic imprisonment to be served on weekends. No sentence was imposed for the other conviction.

Defendant appeals both convictions and the sentence. He maintains the reckless homicide conviction is invalid because, as alleged in his motion in arrest of judgment, the information failed to charge the offense of reckless homicide, because it did not allege that the acts he was charged with were performed recklessly. He further requests that, if the reckless homicide conviction is permitted to stand, the other conviction should be reversed on double jeopardy grounds.

Section 9-3(a) of the Criminal Code of 1961 defines reckless homicide in the following manner.

"A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide." Ill. Rev. Stat. 1981, ch. 38, par. 9-3(a).

Section 4-6 of the Criminal Code of 1961 describes recklessness in these words:

"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning." Ill. Rev. Stat. 1981, ch. 38, par. 4-6.

The information charged that on July 26, 1981, defendant "committed the offense of Reckless Homicide" in that:

"Above defendant did unintentionally kill an individual without lawful justification by committing an act which was likely to cause death or great bodily harm to an individual, said act consisting in the driving of a motor vehicle at an excessive rate of speed resulting in the crash which resulted in the death of Christopher Gulliford, Age 22, of Gibson City, said act occurring within the Corporate limits of the City of Gibson, Ford County, Illinois."

Other than alleging that defendant committed the offense of reckless homicide, the information did not use the word "reckless."

• 1 A charge must allege every essential element of the offense. (People v. Pettus (1980), 84 Ill. App.3d 390, 405 N.E.2d 489.) The only act charged of defendant in the information was that he drove at an excessive rate of speed. Excessive speed is insufficient, of itself, to constitute recklessness. (People v. Potter (1955), 5 Ill.2d 365, 125 N.E.2d 510; People v. Clark (1970), 130 Ill. App.2d 558, 265 N.E.2d 191; aff'd in part, rev'd in part on other grounds (1972), 50 Ill.2d 292, 278 N.E.2d 782.) However, a charge alleging that an accused drove at an excessive speed on a particular occasion and at a particular place was held to state the offense of reckless homicide under the predecessor to section 9-3(a) (Ill. Rev. Stat. 1951, ch. 38, par. 364a) when the charge also alleged that the accused drove recklessly (Potter). Thus, the crucial question is whether the element of recklessness can be inferred from the information as a whole.

• 2 In People v. Alequin (1973), 12 Ill. App.3d 837, 298 N.E.2d 723, and People ex rel. McLain v. Housewright (1973), 9 Ill. App.3d 803, 293 N.E.2d 911, the charges alleging the offense of burglary did not include the statutory language "without authority" (Ill. Rev. Stat. 1971, ch. 38, par. 19-1(a)), but the court deemed the element to have been inferred by allegation of the intent to commit a theft. Similar results have been reached in theft cases where "without authority" was not alleged, but intent to permanently deprive the owner was alleged. (People v. Wade (1970), 131 Ill. App.2d 415, 264 N.E.2d 898; People v. Hayes (1971), 133 Ill. App.2d 885, 272 N.E.2d 423.) On the other hand, when other allegations of the complaint do not imply the missing element, the charge fails when tested by a motion in arrest of judgment. In People v. Pruden (1982), 110 Ill. App.3d 250, 442 N.E.2d 284, and People v. Pruden (1980), 84 Ill. App.3d 390, 405 N.E.2d 489, lack of authority was not implied from allegations of the other elements of the offense of home invasion. Here, the information alleged that defendant's conduct was likely to cause death or great bodily harm, but section 9-3(a) states that the accused's conduct must be such as to be likely to do so and be performed recklessly. Thus, the conduct that is likely to cause death or great bodily harm does not, of itself, imply that the conduct was reckless.

We are aware of no authority for judging the sufficiency of the charge by anything other than the description of the acts contained in the charge which the defendant is alleged to have performed. No case has been cited which indicates that the discovery given or the understanding of the parties can cure defects in a charge which are reached by a timely motion in the trial court.

• 3 The implication that defendant's conduct in driving at an excessive rate of speed was reckless also cannot be derived from the use of the word "[r]eckless" in naming the offense with which defendant was charged. In People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437, a case concerning the sufficiency of a charge of the offense of ...


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