APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
547 N.E.2d 1041, 191 Ill. App. 3d 371, 138 Ill. Dec. 615 1989.IL.1921
Appeal from the Circuit Court of Henderson County; the Hon. R.C. Ripple, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., and SCOTT, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
The defendant, Charles Beard, was charged with reckless homicide, driving under the influence of alcohol, and failure to drive on the right side of the road. Following a jury trial, the defendant was convicted of all three offenses. He was sentenced to a fine of $1,000 and a one-year term of probation, conditioned on serving six months of work release, for the charge of driving under the influence of alcohol. He was fined $100 and costs on the charge of failure to drive on the right side of the road. However, the defendant's motion in arrest of judgment was granted as to the reckless homicide conviction, since the indictment failed to allege that the defendant acted recklessly. The State appeals the trial court order granting the arrest of judgment.
On appeal, the State argues that subsequent to the Illinois Supreme Court's decision in People v. Smith (1984), 99 Ill. 2d 467, the reckless homicide statute was amended so that driving under the influence of alcohol is prima facie evidence of a reckless act. (Ill. Rev. Stat. 1987, ch. 38, par. 9-3(b).) Thus, merely because the word "reckless" did not appear in the body of the indictment, the indictment was not insufficient as a matter of law. We disagree and affirm the trial court decision.
The indictment in the instant case alleges that the defendant committed reckless homicide:
"n that said defendant performed acts likely to cause the death of or great bodily harm to some individual, without legal justification, in that he operated a motor vehicle heading in an Easterly direction along and upon Henderson County Road 700N .2 of a mile West of the intersection of Henderson County Road 700N with Illinois State Route 94, Henderson County, Illinois, while under the influence of alcohol to such a degree that he was incapable of safely driving, causing him to lose control of his vehicle and cross the centerline and the opposing lane of traffic and strike a vehicle on the Westbound shoulder of Henderson County Road 700N operated by Debra A. Shields, thereby causing the death of Debra A. Shields in violation of Chapter 38, Section 9 -- 3, Paragraph (a), Illinois Revised Statutes." (Emphasis added.)
The trial court, relying on People v. Smith (1984), 99 Ill. 2d 467, found that the body of the indictment must specifically use the term "reckless" to allege the defendant's mental state in a reckless homicide charge. This court finds that a detailed analysis of Smith supports the trial court's ruling.
In Smith, the defendant was charged with reckless homicide by unintentionally killing an individual without lawful justification, by committing the act of driving a motor vehicle at an excessive rate of speed. The jury found the defendant guilty of the reckless homicide charge. The defendant thereupon filed a motion in arrest of judgment, asserting for the first time that the indictment failed to charge reckless homicide because it did not allege that he acted recklessly. The trial Judge denied the motion and sentenced him for the offense of reckless homicide. The appellate court then reversed the conviction of reckless homicide (People v. Smith (1983), 112 Ill. App. 3d 1033), and the Illinois Supreme Court affirmed the appellate court.
The Illinois Supreme Court in Smith found:
"A reckless state of mind is an integral part of the crime of reckless homicide; recklessness therefore must be alleged in the body of the information." (Smith, 99 Ill. 2d at 472.)
The Smith court based its ruling on the mandatory language of the Illinois Code of Criminal Procedure of 1963, which states that an indictment must set forth the nature and elements of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 111-3(a)(3).) This statutory requirement is based on the public policy that a defendant has a fundamental right to be informed of the "nature and cause" of ...