text:
    (No. 51174.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LESTER SPATES, Appellant.

      Opinion filed October 2, 1979.

      Ralph Ruebner, Deputy Defender, of Chicago (Daniel Cummings, Assistant Appellate Defender, and Randy K. Johnson, law student, of the Office of the State Appellate Defender, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Lester Spates, was convicted of armed robbery in the circuit court of Winnebago County. The appellate court affirmed the conviction. (62 Ill. App. 3d 890.) The defendant contends that the trial court erroneously denied a motion in limine which would have prevented the admission of a prior misdemeanor theft conviction as evidence impeaching the defendant’s credibility. We granted the defendant’s petition for leave to appeal because there is a conflict within the first appellate district and among the appellate districts on this issue and because we deem it important to the proper conduct of trials, both civil and criminal, that this issue be clearly resolved.

The defendant was convicted of armed robbery on September 28, 1976, after a jury trial. The evidence adduced at trial showed that on February 6, 1976, the defendant was patronizing a bar in Rockford. Further, it was shown that the defendant and another man attacked Floyd Ross at the back exit to the bar. The defendant hit Ross in the face with a beer bottle, breaking the bottle and knocking Ross’ glasses off in the process. The other man punched Ross in the jaw and knocked him down. They turned Ross over and removed his wallet from his back pocket and fled in a northerly direction. Ross testified that he had cashed his paycheck in the bar earlier and had placed most of the money in his wallet. The defendant was arrested on February 27, 1976. Subsequently, Ross positively identified the defendant in a police lineup and again at trial.

Rockford city police officer Casky testified that, when he arrived at the bar shortly after the robbery, he walked in the direction the two men had fled. Approximately 15 feet north of the robbery scene he found two copies of city traffic citations lying on the ground. The citations had been issued to the defendant. The police officer testified that the citations were dry and that they were lying on top of the snow.

Another witness, John Kellems, testified that he had been in the bar with the defendant and another man on the evening of February 6, 1976. Kellems and the defendant played pool together for a time, after which Kellems went home. Kellems further testified that the police came to his home that same evening to ask him the name of the person with whom he had played pool at the bar. He told the police he knew the man only as Lester. Shortly after the police left, the defendant came to Kellems’ home to ask him what the police wanted. Kellems said he did not know. Kellems stated that the defendant repeatedly said that he did not “do it.” Kellems subsequently identified the defendant in a police lineup as the man he had played pool with at the bar, and as the man who came to his home on February 6, 1976. He also identified the defendant at trial.

The defendant testified on his own behalf. He was asked the following questions, inter alia, by his counsel on direct examination:

“Q. Mr. Spates, were you — did you plead guilty to the offense of petty theft on October 31st, 1974?
A. Yes, I did.
Q. And did you plead guilty to the offense of grand theft on November 15, 1968?
A. Yes, I did.
Q. And when is your birthday?
A. March 31st, 1951.”

Defendant’s counsel made a motion in limine prior to the commencement of trial in an effort to prevent defendant’s prior misdemeanor theft conviction from being admitted into evidence. The trial court denied the motion. At the close of evidence, counsel for the defendant requested the court to give an instruction to the jury advising that evidence of prior convictions is to be considered only insofar as it may affect the credibility of a witness, and not as evidence of guilt of the crime with which one is charged. The trial court did deliver that instruction. The defendant contends that he was denied a fair trial because he was forced, as a tactical measure, to introduce his prior misdemeanor conviction into evidence. Defendant prays that the judgment of the appellate court be reversed and that this cause be remanded for a new trial.

At the outset we take note that the misdemeanor theft conviction which defendant contends was erroneously admitted was the defendant’s second conviction for the offense of theft. Section 16 — 1(e) of the Criminal Code of 1961 states that a “second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.” (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(e).) While a question of the nature of defendant’s conviction is thereby raised, we must assume that the conviction was for a misdemeanor, since we will not inquire into matters which are dehors the record. Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427.

The next question to be decided is whether the defendant properly preserved for review the question of the admissibility of defendant’s conviction of misdemeanor theft. It has been held that a defendant cannot on review object to testimony which he himself introduced. (People v. Taylor (1979), 68 Ill. App. 3d 680, 686, citing People v. Clements (1925), 316 Ill. 282, 284.) However, the rule as stated in Clements is as follows:

“It is a well settled principle of law that a party will not be allowed to take advantage of his own wrong or of an error of the court induced by his own motion. If it was error to instruct the jury upon the question of manslaughter and to submit to the jury the question of plaintiff in error’s guilt of the crime of manslaughter, plaintiff in error invited the error, and having done so must accept its results. He can not ask the court below to make a specific ruling or to proceed in a certain manner and then successfully assign as error in a court of review that the ruling or action of the court is erroneous.” 316 Ill. 282, 284.

The foregoing rule refers to jury instructions, not testimony, and to actions taken by the court, not action taken, by a party. The court’s denial of the motion in limine and the introduction of the conviction by defendant are in a different category. As to those acts, the statement in People v. DeHoyos (1976), 64 Ill. 2d 128, 131, is more pertinent:

“This is an example of ‘the practice which permits the party who calls a witness with a criminal record to prove the record on direct examination.’ (3A Wigmore, Evidence sec. 900, at 667 n.l (Chadbourn rev. ed. 1970).) It is not impeachment of one’s own witness; on the contrary it is an anticipatory disclosure designed to reduce the prejudicial effect of the evidence on the witness ’ credibility. The evidence is admissible on the ground that ‘The proponent of a witness need not allow such information damaging to his credibility to be first established on cross-examination ***.’ United States v. Mahler (2d Cir. 1966), 363 F.2d 673, 678.”

See also People v. DeHoyos (1976), 64 Ill. 2d 128, 133 (dissenting opinion), where it is stated that “no valid reason” exists to preclude introduction of matters affecting credibility of a witness by the party calling that witness, nor should revelation of the matters await the opponent’s decision whether to reveal them.

In sum then, a party waives the right to raise as error action taken by the court at the instance of that party; it is quite another matter when, after an exclusionary motion is denied, the party himself raises a matter so as to lessen its impact, when the party knows that if he does not raise it, the opponent will. The difference is that, in the first instance, the request and the subsequent assertion of error are inconsistent with one another. In the second instance the aim is consistent: once the motion to exclude the matter is denied, the party must try to limit the effect the matter will have on the trier of fact. He has not waived the issue by raising it; he has merely tried to ensure that it does the least damage to his witness’ credibility. Under the precise facts presented herein, that is what the defendant has done. Therefore the defendant has properly preserved this issue for review. Compare People v. Price (1976), 41 Ill. App. 3d 1059, with People v. Rudolph (1977), 50 Ill. App. 3d 559.

Thus we proceed to decide whether the trial court committed reversible error when it denied the defendant’s motion in limine to exclude the defendant’s prior conviction for misdemeanor theft. This issue is governed by the rule enunciated in People v. Montgomery (1971), 47 Ill. 2d 510, and enlarged upon in Knowles v. Panopoulos (1977), 66 Ill. 2d 585. In Montgomery (47 Ill. 2d 510, 516) we adopted proposed Federal Rule of Evidence 609, which states, insofar as is pertinent to this case:

“(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.” Proposed Fed. R. Evid. 609.

In Knowles we held that proposed Rule 609, as adopted by Montgomery, applied to civil as well as criminal cases, and that for purposes of impeachment of testimony no distinction is to be made between infamous crimes and misdemeanors. The court is to determine whether the crime falls within the purview of proposed Rules 609(a)(1) or (2); that is, whether the crime is either one punishable by death or imprisonment in excess of one year, or is a crime involving dishonesty or false statement. Since the crime at issue in the instant case is misdemeanor theft, punishable, at a maximum, by imprisonment for less than one year (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—3(a)(1)), evidence of a conviction would not be admissible under proposed Rule 609(a)(1).

The issue here thus becomes whether the crime of misdemeanor theft is a crime involving dishonesty or false statement, so that a conviction for that offense is admissible for the purpose of impeaching a witness. We are urged by the defense to interpret the phrase “crimes involving dishonesty or false statement” narrowly so as to limit the admissibility of prior convictions to crimes which contain an element of affirmative misstatement or of misrepresentation of fact. The State urges that we give the phrase a broader meaning and include not only crimes of representational dishonesty but crimes which relate generally to any kind of dishonesty, whether manifested by conduct or words.

The defendant argues that only a conviction which falls into that class of crime characterized at common law as crimen falsi should be admitted to impeach a witness. (See Matzenbaugh v. People ex rel. Galloway (1901), 194 Ill. 108; Conference Report on Federal Rules of Evidence, Joint H. R. & S. Rep. No. 93 — 1597, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Adm. News 7103.) Crimen falsi does not include all offenses which involve a charge of untruthfulness, but only those which injuriously affect the administration of public justice, such as perjury, subornation of perjury, suppression of testimony by bribery or conspiracy to procure the absence of a witness, or to accuse one wrongfully of a crime, or barratry, or the like. Matzenbaugh v. People ex rel. Galloway (1901), 194 Ill. 108, 113.

Crimen falsi is a class of offenses, misdemeanors at common law, which, along with treason and any felony, comprise the infamous crimes. (Black’s Law Dictionary 446 (infamous crime) (rev. 4th ed. 1968).) At common law, any person convicted of an infamous crime was not permitted to testify at any trial, due to the belief that conviction of such a crime rendered the person inherently unworthy of trust. (Matzenbaugh v. People ex rel. Galloway (1901), 194 Ill. 108, 113.) That harsh rule was abrogated with the passage of the Evidence Act (Ill. Rev. Stat. 1975, ch. 51, par. 1 et seq.), section 1 of which provides that no person shall be disqualified to testify based on a prior conviction, but that conviction may be admitted to affect the credibility of the witness. (See the corresponding criminal provision (Ill. Rev. Stat. 1975, ch. 38, par. 155 — 1).) The rule was further affected by our decision in Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 589, that no distinction is to be made between misdemeanors and infamous crimes when introducing prior convictions in civil and criminal proceedings for the purpose of impeachment.

Accordingly, if no distinction is to be made between misdemeanors and infamous crimes, and crimen falsi is a subset of infamous crimes, it follows that the types of misdemeanors admissible to impeach should not be limited only to the crimen falsi offenses. Additionally, a close look at the crimen falsi offenses reveals that most of the offenses covered by that term — perjury, subornation of perjury, bribery of a juror, communicating with jurors and witnesses — are felonies. Evidence of conviction of those crimes is admissible under proposed Rule 609(a)(1), independent of the requirement of dishonesty or false statement. In addition, crimes involving deception such as fraud over $150, forgery and bigamy are also felonies. Therefore, were we to limit the types of misdemeanor convictions which are admissible to impeach to the crimen falsi offenses and crimes of deception, as argued by the defendant, we would restrict the rule to the point where its use would be extremely rare. This we refuse to do. We therefore hold that theft is a crime falling within proposed Rule 609(a)(2), involving dishonesty or false statement.

Support for our holding is obtained by reference to Webster’s Third New International Disctionary 650 (1971) where “dishonest” is defined as a “breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding ***.” (Emphasis added.) Assuming that the drafters of the Federal rules of evidence intended the natural meaning of their words, we can perceive no reason why proposed Rule 609(a)(2) should not encompass both theft, as an act of dishonesty, as well as perjury, as an act of false statement. This interpretation is especially justified since the rule is written using the disjunctive conjunction “or,” designating that either of two alternatives would fall within the rule. Since crimes involving affirmative misstatements are presumably included by the phrase “false statement,” crimes involving conduct that is dishonest, of which theft is surely one, are included by the term “crimes involving dishonesty.”

Yet another reason for holding theft to be a crime of dishonesty is the fact that under the Illinois theft statute (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1), one of the four types of theft defined is theft by deception. In a cogent dissent in People v. Rudolph (1977), 50 Ill. App. 3d 559, 570, with facts very similar to the instant case, it was noted that theft by deception “may be considered to be included within ‘dishonesty or false statement.’ ” (50 Ill. App. 3d 559, 576.) We do not deem it prudent, however, to require a court to look behind a conviction to ascertain the specific type of theft upon which the conviction was based, differentiate between the four types of theft and make a determination as to which types involve dishonesty, for the purpose of impeachment of a witness. Not only is such a procedure cumbersome, but it is collateral to the immediate controversy. (Gallagher v. People (1904), 211 Ill. 158.) The more sensible approach is that a conviction for theft, of whatever type, will be admissible to impeach the credibility of a witness. This interpretation of proposed Rule 609(a)(2) has been more often accepted by our appellate court, and we think it the better approach. Compare, e.g., People v. Thomas (1st Dist. 1978), 58 Ill. App. 3d 402, People v. Rudolph (1st Dist. 1977), 50 Ill. App. 3d 559, People v. Clay (2d Dist. 1977), 45 Ill. App. 3d 145, People v. Ray (1st Dist. 1976), 36 Ill. App. 3d 283, and People v. Kreisa (4th Dist. 1974), 24 Ill. App. 3d 832, with People v. Malone (1st Dist. 1978), 67 Ill. App. 3d 150, People v. Vaughn (5th Dist. 1978), 56 Ill. App. 3d 700, and the dissent in Rudolph, above, 50 Ill. App. 3d 559, 570.

The defendant raises the additional argument that a conviction for theft does not, as required by Knowles, “reasonably relate to testimonial deceit.” (66 Ill. 2d 585, 589.) We disagree. There is at least as reasonable a relation between theft and testimonial deceit as there is between an unquestionably admissible conviction for a violent felony, such as voluntary manslaughter, which is presumed to so relate. There is little doubt but that theft reflects adversely on one’s honesty and therefore relates to one’s ability to be truthful under oath. (Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, 940.) Less is learned about one’s capacity for veracity by a conviction for manslaughter. Reason compels the conclusion that a conviction for theft, petty or grand, should be admissible to impeach, due to the relation it bears to testimonial deceit.

In keeping with the test set down in Knowles v. Panopoulos, we propose as a guideline that any misdemeanor, which has as its basis lying, cheating, deceiving or stealing, bears a reasonable relation to testimonial deceit and should be admissible for impeachment purposes. Theft is clearly included in this category.

Finally we stress once again as we did in Montgomery and Knowles that the discretionary nature of proposed Rule 609 remains inviolate. It is still the province of the trial court to weigh the probative value of a conviction for misdemeanor theft against the potential for unfair prejudice which might result and, in appropriate cases, refuse to admit evidence of a conviction. (People v. Ray (1973), 54 Ill. 2d 377, 382-83.) The various factors to be considered remain: the nature of the crime, the nearness or remoteness in time of the conviction to the present trial, the subsequent career of the person, and whether the crime was similar to the one charged. (People v. Montgomery (1971), 47 Ill. 2d 510, 518.) We have considered the foregoing in relation to the instant case and conclude that the trial court was correct in denying the defendant’s motion in limine. Upon a careful review of the record, we think that the defendant herein received a fair trial.

Accordingly, for the reasons stated, we affirm the judgment of the appellate court.

Judgment affirmed.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 51557.

      In re JACK LEVIN, Attorney, Respondent.

      Opinion filed September 19, 1979.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, of Chicago, for Respondent.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a four-count complaint, the Administrator of the Attorney Registration and Disciplinary Commission charged that respondent, Jack Levin, who was admitted to practice law in this jurisdiction on May 19, 1960, had been guilty of conduct which tended to defeat the administration of justice and bring the legal profession into disrepute. Count IV was dismissed on motion of the Administrator and the Hearing Board found that the Administrator had failed to prove the allegations of counts II and III by clear and convincing evidence. The Hearing Board found that the evidence showed clearly and convincingly that respondent’s conduct, as charged in count I, had brought the legal profession into disrepute in that respondent had neglected a legal matter which had been entrusted to him, and recommended that he be suspended for a period of one year. The Review Board, with three members voting for censure, rather than suspension, concurred in the recommendation.

All three counts arose out of respondent’s representation of clients in personal injury cases. Counts I and II were based upon cases which had been referred to respondent after being filed by other lawyers, and count III involved a case in which respondent was employed by the parties. Prior to respondent’s entering the case the action which was the subject of count I was dismissed as to one of two defendants because of the plaintiffs’ failure to answer interrogatories. It was subsequently dismissed as to the other defendant because of the plaintiffs’ failure to appear for a discovery deposition. The case out of which count II arose was dismissed for want of prosecution, and the action involved in count III was dismissed because of failure to comply with the rule concerning pretrial conferences (58 Ill. 2d R. 218).

Respondent contends that the allegations contained in count I were not proved by clear and convincing evidence, that the Hearing Board erroneously placed upon respondent the burden of proof on matters on which the burden should have been borne by the Administrator, and that assuming that the evidence was sufficient to prove that respondent was negligent in the handling of a legal matter, the sanction of suspension for a period of one year was excessive. The Administrator contends that the hearing and review boards erred in holding that the evidence adduced in proof of counts II and III was not clear and convincing, and that suspension from the practice of law for a period of one year was not an excessive sanction.

Respondent testified that he was a trial attorney and that most of his practice consisted of referrals from other attorneys. In November 1968, attorney Basil Elias referred to respondent a personal injury case which had been filed on July 27, 1967, on behalf of Leonard Pratscher and Paulette Pratscher, his wife, seeking to recover for personal injuries suffered on June 4, 1967. On October 30, 1968, one of two defendants had been dismissed from the action because of plaintiffs’ failure to answer that defendant’s interrogatories. On November 14, 1968, plaintiff Leonard Pratscher and respondent met for the first time at Elias’ office and it was agreed that respondent would assume the further handling of the case.

Respondent testified that shortly after that time he entered into settlement negotiations with an attorney who represented the remaining defendant. At that time he and the attorney were negotiating settlement of a number of other cases. Respondent stated that there was discussion with opposing counsel to the effect that the case should be settled for $10,000 to $15,000, and that sometime early in 1970 plaintiff Pratscher approved a settlement in the amount of $12,000. Respondent communicated approval of the settlement to the attorney representing the defendant, who died shortly thereafter. At the time of the attorney’s death respondent had not received the releases for the settlement. There was no documentation of the settlement in the deceased attorney’s files, and his firm, after repeated efforts to take the plaintiffs’ depositions, moved for the dismissal of the case. The case was dismissed on January 25, 1971.

There was considerable conflict in the testimony of Pratscher and respondent concerning whether Pratscher had approved the settlement and whether he had ever been notified that depositions were to be taken. Pratscher and respondent were not in agreement concerning whether Pratscher had been advised of the dismissal of the lawsuit, and he testified that in 1972 he learned of the dismissal through another attorney. Later he complained to the disciplinary commission, and has also filed a malpractice action against respondent.

Respondent testified that he had called one of the surviving partners of the deceased lawyer and inquired about the settlement, thinking that perhaps the releases had been sent to Elias, who had remained attorney of record. Respondent was advised that the firm had no knowledge of the settlement. Respondent then filed a motion to vacate the dismissal on the ground that the case had been settled for $12,000, and that plaintiffs had a just and meritorious cause of action. That motion was denied on July 16, 1973. Respondent filed a motion for rehearing, which apparently remains pending.

We have examined the testimony concerning counts II and III, and although respondent’s handling of the matters therein involved would scarcely merit accolades, we are unable to say that in holding that the Administrator had failed to prove the allegations by clear and convincing evidence, the hearing and review boards were in error.

We do not agree with respondent’s contention that the evidence concerning count I fails to prove by clear and convincing evidence that he neglected a legal matter which had been entrusted to him. The testimony shows that the plaintiffs executed answers to interrogatories shortly after respondent was employed, that almost two months elapsed prior to their being filed, and that no effort appears to have been made to set aside the prior order of dismissal as to the one defendant. The testimony shows that there were long periods of time during which no action whatsoever was taken; that respondent failed to act with diligence in attempting to complete the settlement which he allegedly had negotiated, and in taking further action when the deceased attorney’s firm took the position that no settlement had been agreed upon. Respondent failed to explain why arrangements were not made to produce the plaintiffs for deposition or to obtain such orders as may have been necessary to obtain continuances from the dates upon which the depositions were to be taken.

Respondent concedes that he committed an error of judgment in failing to obtain documentation of the settlement offer, but argues that “poor judgment unaccompanied by an improper motive does not constitute neglect, ABA Comm, on Ethics and Professional Responsibility, Informal Opinion 1273 (1973), and is not ground for discipline.”

As the court observed in In re Chapman (1978), 69 Ill. 2d 494: “The traditionally high standards of the legal profession impose upon an attorney the duty to respresent a client with zeal and diligence, and as we said in In re Taylor, 66 Ill. 2d 567, 571: **** we find that neglect in the performance of an attorney’s duties to a client can be sufficient to warrant disciplinary action. Suspension is a proper punishment “where a corrupt motive and moral turpitude are not clearly shown.” (In re Ahern (1961), 23 Ill. 2d 69, 74 ***.)’ ” (69 Ill. 2d 494, 501.) Respondent’s dilatory conduct is hardly exemplary of the “zeal and diligence” required of an attorney in the representation of his clients, nor do we find it plausible that the failure to take action with respect to the scheduled depositions can be excused on the ground that he thought the case was settled.

We consider now the question of an appropriate sanction. The purpose of a disciplinary proceeding is to safeguard the public and maintain the integrity of the legal profession. As was said in In re Andros (1976), 64 Ill. 2d 419, 425-26, “While a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.” The Administrator cites, as analogous to the situation shown here, In re Taylor (1977), 66 Ill. 2d 567, In re Chapman (1978), 69 Ill. 2d 494, and In re Levinson (1978), 71 Ill. 2d 486. Taylor and Levinson involved situations where the respondents had accepted payment for their services and subsequently neglected their duties in representing the complainants, and in both cases there was evidence of several instances of neglect. This case more closely resembles In re Chapman. Furthermore, as in Chapman, respondent had not previously been charged with unprofessional conduct.

On this record we conclude that the recommended suspension of respondent for a period of one year would not serve the interests of the public or the legal profession.It is our opinion that an appropriate sanction is that respondent be suspended from the practice of law for three months.

Respondent suspended.


author: MR. JUSTICE RYAN

text:
    (No. 51006.
    8930 SOUTH HARLEM, LTD., Appellee, v. ALBERT F. MOORE et al. (Albert F. Moore, Appellant).

      Opinion filed October 19, 1979.

      MORAN, J., specially concurring.
    Barnard, Marconi & McGrath, Ltd., of Chicago (Ronald L. Barnard and William V. McGrath, of counsel), for appellant.
    Stuart C. Wallace, of Chicago (Ellis B. Rosenzweig, of Chicago, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves a dispute concerning two conveyances covering the same property, one involving the sale of the real estate, and the other a lease which was executed between the time that the contract for sale was entered into and the deed to the property was delivered. The land was registered under “An Act concerning land titles” (Ill. Rev. Stat. 1973, ch. 30, par. 45 etseq.). This act provides for a system of land-title registration commonly known as a Torrens system, taking its name from the premier of South Australia who instituted such a system there in 1858. (B. Schick & I. Plotkin, Torrens In The United States 11 (1978).) Although the land was registered, the grantee under the deed had not registered the contract for sale or the deed, and the lessee had not registered the lease.

The plaintiff in this case, 8930 South Harlem, Ltd., Inc., which holds under the lease, sued Albert F. Moore, the grantee in the deed, in the circuit court of Cook County, seeking a declaration that the lease prevails over the deed, which covered a 25-foot strip across one side of the leased property. During the pendency of the suit, Moore registered his deed with the Cook County registrar of land titles. Moore then filed an affirmative defense to the plaintiff’s complaint, alleging the registration of the deed by virtue of which he claimed he took the property free of any interest created by the lease. Plaintiff then filed an amended count II of the complaint, joining as defendant the registrar of titles for the County of Cook, and prayed that the registrar of titles be ordered to register the lease as a prior charge against Moore’s title. The trial court, seeking to do equity, held that the plaintiff did not have a leasehold interest in the property but had a license for its use and fixed the duration of the license for approximately one-half of the term of the lease. The court also made some other equitable adjustments and held in the judgment order that, by registering the deed in Torrens, Moore did not defeat plaintiff’s right to an interest in the property. Since neither had registered their interests before the lawsuit, Moore’s registration of his deed after suit had been filed, the order stated, did not commend itself to a court of equity. The court also found that since Kladis (the original lessee under whom plaintiff holds the property) and Moore had an understanding that the lessee would pay $1,500 toward paving the strip, Moore, by permitting the lessee to pay for the paving and to use the property, is estopped to deny plaintiff’s right to use the 25-foot strip of land in dispute. The trial court also found that the plaintiff is entitled to have the lease registered with the registrar. The appellate court reversed the trial . court’s holding that the plaintiff only had an irrevocable license, but affirmed other holdings of the court. (61 Ill. App. 3d 293.) We granted Moore’s petition for leave to appeal.

Prior to August 31, 1973, Robert Garber sought to purchase a 174-foot square tract of land which was registered in Torrens. Before he could purchase the property, Garber had to secure a release from Albert F. Moore of a right of first refusal which Moore held on the entire tract. In order to secure this release, Garber agreed in writing to sell Moore a 25-foot strip along the edge of the tract. This agreement, which was entered into on August 31, 1973, will be discussed later in this opinion. This agreement was not registered, although both Garber and Moore knew that title to the property in question was registered in Torrens. Subsequent to this agreement, Garber purchased the 174-foot-square tract of land and obtained a Torrens certificate.

In the fall of 1973 Garber negotiated with Kladis, the predecessor in interest of the plaintiff in this action. Kladis had no knowledge of the August 31, 1973, contract with Moore. On December 5, 1973, Garber leased the 174-foot tract of land to Kladis. The lease provided for occupancy on March 1, 1974, and was to run for a period of 15 years with an option to renew for another 5 years. Garber then began the erection of a restaurant building on the property. The record indicates that Kladis was at the building site and worked with the contractor regularly thereafter. Because Kladis did not know that the tract of land was registered in Torrens, he failed to register his lease and he made no attempt to record the same. On December 17, 1973, subsequent to the execution of the lease, Moore sued Garber for specific performance of the August 31, 1973, contract. A settlement of that litigation was arrived at in May of 1974 under which Garber agreed to convey the 25-foot strip to Moore. Garber informed the lessee of this agreement on June 2, 1974, and on June 4, 1974, the property was conveyed to Moore. Moore recorded the deed but did not register the same in the registrar’s office as required by section 54 of the Act (Ill. Rev. Stat. 1973, ch. 30, par. 98).

A dispute arose between Moore and the plaintiff herein, 8930 South Harlem, Ltd. (Kladis’ successor under the lease, hereinafter referred to as lessee), in July of 1974 concerning the use of the 25-foot strip of land. Initially, as noted above, there was an agreement to share the cost of paving this strip. Eventually, however, the lessee paid the entire cost of paving. The parties then agreed that the lessee’s restaurant customers would not be allowed to use Moore’s parking lot during the daytime. This agreement was also abandoned. Later there was a dispute concerning the erection of fences on the strip by Moore, cutting off the 25-foot strip from the lessee’s property. The lessee destroyed these fences and Moore erected a heavy-duty guard rail to eliminate lessee’s use of this strip. On October 7, 1975, the lessee filed this lawsuit against Moore and Garber to resolve the dispute. Moore counterclaimed against Garber. As noted earlier, subsequent to the filing of this suit, Moore registered his deed for the strip under Torrens. This registration was accomplished on February 17, 1976, without notice to the registrar of the pending lawsuit and without notice to the lessee of the registration. Also, as noted above, the lessee thereafter amended his complaint to include the registrar of titles as a defendant and to seek an order requiring the registration of his lease.

Both Moore and the plaintiff urge us to rule that certain arguments cannot be advanced in this court because they had been forfeited by the other parties’ failure to assert them in the appellate court. We have read the briefs addressed to the appellate court and we conclude that all of the pertinent issues have been adequately preserved for our review.

Moore’s eventual registration of his deed cannot be said to terminate or destroy the right of the lessee acquired under the lease from Garber. The Act was designed to encourage reliance upon the state of the registered title. (Nailburg v. Hendriksen (1939), 370 Ill. 502, 507.) This court recently stated that the principal objective of the Act is to provide an individual system of registration whereby an intending purchaser of land can determine from the register the conditon of the land. (Echols v. Olsen (1976), 63 Ill. 2d 270, 275.) Under the circumstances of this case the certificate issued to Moore on the registration of this title cannot control the status of the land as between the parties to the suit filed by the plaintiff. These parties do not fall within the class of persons intended to be protected by the requirements of the Act. (Naiburg v. Hendriksen (1939), 370 Ill. 502, 507.) Moore did not look to the register to determine the condition of title. Instead, he intended to use the Act to prevail in a controversy concerning the respective rights in the real estate involved, which controversy was in litigation, and Moore was a party to that litigation. Only after the issues had been formed did he seek to use the Act to defeat the claimed paramount interest of the plaintiff. This is not the purpose of the Act. Proceedings under the Act are governed by rules of equity. (Naiburg v. Hendriksen (1939), 370 Ill. 502, 505-06.) In our case the trial court correctly held that Moore’s conduct in registering his deed during the litigation did not commend itself to a court of equity. The Act provides for a determination in a court of the respective rights of competing interests, including its determination that the registration of Moore’s title did not defeat the interest of the plaintiff.

In Echols this court stated:
“The holder of an unregistered interest has strong claims to equitable consideration, especially when, as here, the holder of an interest claiming preference *** did not rely upon the absence of registration.” (Echols v. Olsen (1976), 63 Ill. 2d 270, 277.)

Since the parties here did not register their competing interests and had not relied upon the register, the plaintiff herein, as the holder of an unregistered interest, has “strong claims to equitable consideration.” The trial court, therefore, properly held that the registration of the deed by Moore did not defeat the plaintiff’s claim to an interest in the property.

In Echols it was also noted that the provision of the Act must be construed in light of the established law of property. (Echols v. Olsen (1976), 63 Ill. 2d 270, 275-76.) A difference exists in the established law of property between the legal significance of a sale of an interest in land and a contract to sell an interest in land. Whereas the sale of the interest in land results in the actual transfer of the title from the grantor to the grantee, the contract for sale is only an agreement to be performed in the future and which, if fulfilled, results in a sale. In re Estate of Frayser (1948), 401 Ill. 364, 373.

A lease also is a conveyance of an interest in real estate, although it conveys a lesser interest than does a deed executed to consummate a sale. (See Pierce v. Pierce (1953), 351 Ill. App. 336, aff’d (1954), 4 Ill. 2d 497; Koehler v. Southmoor Bank & Trust Co. (1963), 40 Ill. App. 2d 195; 49 Am. Jur. 2d Landlord and Tenant secs. 2, 18 (1970).) Thus the lease from Garber to Kladis conveyed to the latter the leasehold interest in the property for the term of the lease. The leasehold interest conveyed consisted of the right of the use and possession of the premises for the full term of the lease. People ex rel. Korzen v. American Airlines, Inc. (1967), 39 Ill. 2d 11, 17.

Moore contends that by virtue of the principles of equitable conversion he acquired an equitable title to the real estate under the contract. The trial court made no finding as to whether the August 31, 1973, agreement between Moore and Garber was sufficiently specific to bring about a conversion of the title to the property in question to place the equitable title in Moore. The agreement was a handwritten note signed by both parties obviously not drawn by an attorney. It provided for no time of performance and it was conditioned on Garber obtaining “business zoning.” “ ‘An equitable conversion is implied only when the intent is unequivocal and the implication leaves no substantial doubt.’ ” (In re Estate of Krotzsch (1975), 60 Ill. 2d 342, 346.) “In order to work a conversion the contract must be such that a court of equity can specifically enforce it against an unwilling purchaser.” (Masters v. Masters (1927), 325 Ill. 429, 436; see also Rhodes v. Meredith (1913), 260 Ill. 138; Rodisch v. Moore (1914), 266 Ill. 106; Shay v. Penrose (1962), 25 Ill. 2d 447.) Moore filed suit against Garber for specific performance of the August 31, 1973, agreement; however, specific performance was not decreed. On May 1, 1974, while the suit was pending, Moore and Garber entered into another agreement reciting that a dispute had arisen as to the performance of the August 31, 1973, agreement and that a suit for specific performance had been filed. It was then agreed that Garber would cause to be delivered to Moore a trustee’s deed covering the property in dispute and Moore warranted to Garber the zoning on the property as of May 1, 1974. Pursuant to this latter agreement Garber did cause to be delivered to Moore a trustee’s deed to the property on June 4, 1974.

Reconversion is an imaginary process by which a prior constructive conversion is annulled and the converted property restored, in contemplation of law, to its original state. (Keller v. Schobert (1974), 58 Ill. 2d 137; Hoopston Public Library v. Eaton (1918), 283 Ill. 449.) Reconversion may be by agreement and acts of the parties which plainly show an intention to reconvert. (Bouslough v. Bouslough (1922), 306 Ill. 24.) Plainly, the August 31, 1973, agreement, whatever its original effect may have been, was abondoned by Moore and Garber when they executed the May 1, 1974, agreement in settlement of the dispute that had arisen over the August 31, 1973, document. Under the peculiar facts of this case the doctrine of equitable conversion has not placed in Moore an equitable interest superior to the legal interest conveyed to Kladis by the lease. This conclusion is fortified by the conduct of Moore, which the trial court found estopped him from denying the lessee’s interest in the property. We discuss this conduct later.

Moore contends that although the interest of the lessee may have been a legal one had the land not been registered in Torrens, section 54 of the Torrens Act (Ill. Rev. Stat. 1973, ch. 30, par. 98) prevents the lease from creating that legal interest until the document is registered as required by the Act. Section 54 provides:

“A deed, mortgage, lease or other instrument purporting to convey, *** lease, charge or otherwise deal with registered land, *** other than a will or lease not exceeding five years ***, shall take effect only by way of contract, between the parties thereto, and as authority to the registrar to register the transfer, mortgage, lease, charge or other dealing upon compliance with the terms of this act. On the completion of such registration, the land, estate, interest or charge shall become transferred, mortgaged, leased, charged or dealt with according to the purport and terms of the deed, mortgage, lease or other instrument.”

Moore contends that since his interest was an equitable interest, and since the lessee’s interest by virtue of section 54 was only a contractual right, his interest, being prior in time, must prevail. Although the Torrens Act may have changed the nature of the lessee’s interest, it does not follow that it reduced it to one equal to or less than that possessed by Moore. By registering their respective interests Moore would have acquired only the contractual right to have the property conveyed to him, whereas Kladis would have acquired an outright conveyance of an interest in the property. We cannot say that absent registration the greater interest of Kladis’ would have become inferior to that of Moore.

The trial court found that Moore agreed with Kladis concerning the use of the 25-foot strip, that Moore and Kladis agreed to share the cost of paving the disputed property, and that thereafter Moore permitted the lessee to pay the entire cost of paving. The court found that by this conduct Moore was estopped to deny plaintiff’s interest in the property. Although Moore attempted to explain his conduct, the trial court chose not to accept his explanation. The finding that the conduct created an estoppel was supported by the evidence.

Moore also argues that interesse termini, an ancient concept that under a lease a lessee has no interest in property until he actually enters into possession, requires that he prevail. This ancient archaic principle has no application to the facts of this case. The lease was entered into on December 5, 1973, to take effect March 1, 1974. A restaurant building was under construction on the property and Kladis and his agent were in possession of the property during the construction before and after the effective date of the lease. On April 22, 1974, the lease was assigned by Kladis to the plaintiffs herein, who, in turn, were in possession of the property after that date in preparation for the operating of their restaurant. We can only conclude that Kladis and the plaintiff herein had taken possession under the lease prior to the execution of the deed from Garber to Moore in June of 1974 and that interesse termini has no application.

We cannot affirm the trial court’s order concerning rental payments for the 25-foot strip because of our holding that the lessee is entitled to the possession and use of the strip during the term of the lease instead of only having a 7V6-year license as the trial court held. The cause should be remanded to the circuit court to recompute rental payments in light of this opinion.

The judgment of the appellate court is affirmed except as to the rental payments, and the cause is remanded to the circuit court of Cook County for the purpose of computing rental payments.

Affirmed in part and reversed in part and remanded, with directions.

MR. JUSTICE MORAN specially concurs.


author: MR. JUSTICE WARD

text:
    (No. 51556.

      In re SIDNEY GOLD, Attorney, Respondent.

      Opinion filed Ocotber 19, 1979.

      Charles S. Morgan and Philip Schickedanz, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Dennis A. Berks on and Miles N. Beermann, of Chicago, for respondent.
   MR. JUSTICE WARD

delivered the opinion of the court:

A criminal information was filed in the United States District Court for the Northern District of Illinois charging that the respondent, Sidney Gold, who was admitted to the bar of Illinois in 1964, had failed to file income tax returns for 1971, 1972 and 1973. It alleged gross income for 1971 to have been $33,329.50, for 1972 to have been $45,447.06, and for 1973 to have been $55,957.45. After negotiated plea discussions the respondent pleaded guilty to the count charging a failure to file for 1973 and was sentenced to a term of one year. The order provided that the sentence was suspended and the defendant placed on probation for one year on the condition that he spend 60 days at the Metropolitan Correctional Center on the work-release program and pay income taxes due for 1971, 1972 and 1973. On the government’s motion the counts charging violations for 1971 and 1972 were dismissed.

Following the filing of a complaint with the Attorney Registration and Disciplinary Commission charging a wrongful failure to file returns for 1971, 1972 and 1973, the Hearing Board of the Commission recommended that the respondent be suspended from the practice of law for one year. The Hearing Board found that the respondent’s conduct in violating the law by failing to file a tax return for 1973 tended to bring the legal profession into serious disrepute and caused doubt in the public mind as to the integrity of the bar. The Review Board affirmed the Hearing Board’s findings and recommendation that the respondent be suspended for one year. (The chairman and four members voted to suspend, two members voted to censure, and one member did not participate in the review.)

The respondent contended before the Hearing Board that he believed he did not have sufficient income for the three years in question to require his filing Federal tax returns. He said he pleaded guilty only because of the recommendations of the two attorneys who successively represented him, the costs that a trial would have entailed, and because the judge “refused to allow any delay.” The respondent, after being sentenced, had moved unsuccessfully for a reduction of sentence; he did not at any time move to vacate the plea of guilty and substitute a plea of not guilty. As we have said, the Hearing Board found that the evidence showed the respondent’s guilt of a failure to file a return for 1973. It concluded that the Administrator did not make an adequate showing of guilt for 1971 and 1972. The Hearing Board’s finding as to 1973 was unquestionably correct. A respondent cannot seek to try again the issue of guilt after he has been convicted. Our Rule 761 in part provides: “In any hearing conducted pursuant to this rule, proof of conviction is conclusive of the attorney’s guilt of the crime.” (58 Ill. 2d R. 761.) Under the disposition we make in this case it will not be necessary to consider whether the Hearing Board’s findings as to the complaint’s charges for 1971 and 1972 were correct.

This court in In re O’Hallaren (1976), 64 Ill. 2d 426, held that an attorney’s conviction of a failure to file a Federal income tax return “while not necessarily establishing moral turpitude, conclusively established misconduct constituting grounds for discipline in the absence of mitigating circumstances of an extraordinary nature.” We cannot agree with the respondent’s contention that the evidence showed the hearing and review boards erred in holding the evidence showed there were grounds for discipline. The respondent testified that he had heavy medical expenses because of severe illnesses of his wife over a considerable period of time, including 1971, 1972 and 1973. He said that he had medical insurance in 1971 and prior to 1971 but didn’t have coverage in 1972 and 1973. He said that he did not recall how much money he had expended for his wife’s medical care in 1971 or 1972. In response to his attorney’s question as to what his estimate was for his wife’s medical expenses in the three years involved here, the respondent replied that he had no way of estimating. His attorney asked whether it would have been in excess of $10,000, and he answered that he assumed so.

There was other testimony by the respondent, including testimony that he had kept some papers in a desk at home which reflected expenses and income and were relevant to the preparation of his income tax returns. He stated that the desk had been ransacked in either 1972 or 1973 and that afterward a number of these papers were missing. He also told the Hearing Board that in 1973 he had to borrow money to avert an attempted foreclosure on his home but he did not recall how much money he had to borrow. He testified, too, that his two children were teenagers and lived at home during the 1971-to-1973 period.

The respondent, in testifying, claimed heavy medical expenses. He, however, did not itemize or particularize them in any way and offered nothing to support the claim of these expenses. There was no evidence of other expenses. The record shows, too, that the respondent’s picture was not an unqualified picture of financial distress. He acknowledged on cross-examination that he had bought two new autos — a Mercury and a Lincoln Continental — in 1971. In 1972 he bought a single-engine airplane “to generate business.” The respondent testified that he was employed by a law firm in 1971, and he estimated that his gross income for that year was about $29,000. (He said he was a sole practitioner in 1972 and in part of 1973 and that he was in partnership with another attorney for the other part of 1973 and in 1974.) The count to which the respondent pleaded guilty without any qualification alleged an income in 1973 of $55,957.45.

As we have said, we are not persuaded that there were not grounds for discipline. Too, we cannot say that the recommendation for a suspension from practice of one year is severe and excessive, as the respondent contends.

There was no error in the conclusion of the boards that the respondent’s conviction tended to bring the legal profession into disrepute and cause public doubt as to the bar’s integrity. This court has held: “An attorney’s failure to file returns and his subsequent conviction of that offense diminish public confidence in the legal profession and tend to bring it into disrepute.” In re O’Hallaren (1976), 64 Ill. 2d 426, 434.

Professional disciplining is a melancholy business, and v the case of this attorney is no exception. We consider, however, that the finding of the Hearing Board as to 1973 was not erroneous and that its recommendation that the respondent be suspended from the practice of law for a period of one year is appropriate.

Respondent suspended.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE CLARK,

text:
    (No. 51167.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON HYCHE, Appellant.

      Opinion filed October 19, 1979.

      CLARK and MORAN, JJ., dissenting.
    Michael J. Rosborough, Deputy Defender, and John H. Reid, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield, and Glen Bower, State’s Attorney, of Effingham (Donald B. Mackay, Melbourne A. Noel, Jr., and Timothy B. Newitt, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Aaron Hyche, was found guilty of murder, attempted murder, and kidnapping following a jury trial in the circuit court of Effingham County. The appellate court affirmed his convictions (63 Ill. App. 3d 575), and we allowed defendant’s petition for leave to appeal.

No question is raised on the sufficiency of evidence. On March 19, 1976, State Trooper Layton Davis stopped an automobile for speeding on an interstate highway. Defendant and James Taylor, the occupants of the car, became involved in an altercation with the trooper, who had been informed by State authorities that an arrest warrant for defendant was outstanding. Herman Honn, a passing motorist, witnessed the altercation, stopped his vehicle and went to help the trooper. Before he could render any aid, defendant shot the trooper three times. The trooper died of his wounds. At least two shots were fired at Honn as he hurriedly returned to his vehicle and sped away. Honn left the highway at the first available exit and notified the State police of the incident by telephone. A short while after the trooper’s death, a second motorist, Anna Mae Feldhake, saw defendant and his companion near a car in a ditch off a county road. The motorist stopped to offer them her assistance. The men forced her into the back of her car and drove off. Defendant and Taylor were arrested following a high-speed chase and an attempt to avoid a roadblock. Taylor’s mother testified at defendant’s trial that, four days following the trooper’s death, defendant telephoned her and stated that he had killed a State trooper.

Defendant and James Taylor were charged jointly with the offenses of murder, attempted murder and kidnapping in three separate informations. On defendant’s motion the causes were severed for trial. Taylor was tried by a jury in the circuit court of Effingham County and was convicted of all three offenses approximately five days before defendant’s trial in the same county began.

The first of the three issues defendant raises here is whether he was deprived of his right to be tried by an impartial jury (Ill. Const. 1970, art. I, sec. 8; U.S. Const., amends. VI and XIV) because part of the. jury venire from which his jury was chosen had also been members of the venire from which his codefendant’s jury was selected. Before we reach this issue, however, we must first address the threshold question of whether defendant preserved for review his objections to the overlapping venire. Defendant did not challenge any members of the overlapping venire for cause because of their participation in Taylor’s venire. Nor had defendant exhausted his peremptory challenges before all the overlapping members of the venire had been questioned on voir dire. We note, however, that defendant did file a motion for a continuance and that one of the grounds raised in support of the motion was that it would be impossible for defendant to select unbiased and impartial jurors unless his trial were continued since he would otherwise have to draw his jury from the same pool of prospective jurors from which Taylor’s jury would be selected. In his post-trial motion defendant contended that the trial court erred in denying the motion for continuance. This was sufficient to preserve the issue for review. See People v. Faulisi (1966), 34 Ill. 2d 187, 192, and People v. Kirkpatrick (1953), 413 Ill. 595, 597, in which the same issue was raised in motions for continuances.

Taylor’s jury was drawn from a panel of 80 prospective jurors. An auxiliary panel of 20 jurors was also available on short notice at the discretion of the trial court. Only 63 of the 80 prospective jurors were examined on Taylor’s voir dire. None of the 20 jurors on short notice were called in Taylor’s proceedings.

Prior to defendant’s trial, a special panel of 100 prospective jurors was drawn. This second panel, the persons from the original venire of 80 who had not served on Taylor’s jury and who had not been excused for cause in the Taylor proceedings, and the 20 jurors on short notice in Taylor’s case, constituted the pool from which defendant’s jury was selected. The 23 jurors who had been examined on Taylor’s voir dire but excused peremptorily, the 17 who were called but not examined, and the 20 on short notice who were never called were the members of Taylor’s venire who were also included in defendant’s venire.

Of the 12 jurors and two alternates selected for defendant’s trial, six were selected from the original venire and eight were selected from the second venire of 100. Of the six from the original panel, three were from the quick-notice portion which was not called at Taylor’s voir dire. One of the remaining three was excused prior to deliberations and did not vote for defendant’s convictions. The two jurors from the original panel who actually decided defendant’s case were not challenged for cause or peremptorily, although the defense had not exhausted its peremptory challenges when they were examined and despite the fact that the trial court had clearly indicated they had been called at Taylor’s voir dire.

Two courtrooms were utilized in the jury-selection process. The venire members were kept in one courtroom and were taken from there in panels of four to a second courtroom for questioning by the court and counsel regarding their fitness to serve as jurors in the case. After the panel of four was examined by the court on general and preliminary matters, three of the four would then be excluded while the attorneys examined prospective jurors one at a time.

The record does not show that any of the venire at defendant’s trial had been present at Taylor’s trial. It does not reveal that there was any discussion of the Taylor trial among the members of the venire for defendant’s trial. None of the prospective jurors, including those who actually determined defendant’s guilt, indicated they would be unable to set aside any impressions concerning defendant that they may have received from their participation in Taylor’s venire.

On the basis of the facts recited, we hold that defendant was not denied his constitutional right to a trial before an impartial jury and is not entitled to a new trial. The sole fact that a portion of defendant’s venire overlapped a portion of the venire from which Taylor’s jury was selected does not justify a presumption of prejudice; absent are the additional circumstances present in the two cases on which defendant relies, People v. Faulisi (1966), 34 Ill. 2d 187, 192-94, and People v. Kirkpatrick (1953), 413 Ill. 595, 599-600, which led this court to find that bias and partiality were inherent in those situations and required a reversal of the defendants’ convictions. In addition, the voir dire conducted here, unlike the voir dire in Faulisi, was careful and thorough and provided defendant an opportunity to secure a fair and impartial jury.

In Kirkpatrick there was extensive contact during the term of court between the prospective jurors who did not serve on the codefendant’s jury but who formed Kirkpatrick’s venire and the jurors who actually sat on his codefendant’s jury. The members of the venire who were excused from the codefendant’s jury listened to the proceedings in the codefendant’s case before leaving the courtroom. One or two of the prospective jurors, whose identity the court did not know, heard all the evidence in the codefendant’s case, including the testimony of the defendant, who was required to take the stand in his codefendant’s case but repeatedly asserted his constitutional privilege against self-incrimination. In Faulisi, the trial court asked all the prospective jurors generally whether they had any knowledge of the case. One volunteered that she had been called as a juror in the codefendant’s case and as a consequence had formed an opinion which would prevent her from being impartial. Another juror stated he had been called in the codefendant’s case and had discussed that case in a tavern. A third stated that things that had been said in the prior trial prevented her from being fair. A fourth stated that she had been in the courtroom when the codefendant’s case was being tried and therefore could not be impartial. Although all these jurors were excused, this court found the facts sufficiently analogous to those in Kirkpatrick to justify a finding that bias and prejudice were inherent in that situation.

Here, by contrast, the defendant has pointed to no similarly extensive contact between the members of the overlapping venire and Taylor’s jury; nor has he shown that the prospective jurors developed a familiarity with the evidence as a consequence of their inclusion in Taylor’s venire. Defendant has not. pointed to any evidence that any of the prospective jurors had actually prejudged defendant because of matters they had heard while sitting in Taylor’s venire. We are thus not presented with a situation which should give rise to an inference of juror bias requiring a reversal of defendant’s convictions.

Although this court held in Faulisi that bias and prejudice were inherent in that situation, it stated also that the questioning by the court there was insufficient to guarantee to the defendant his right to trial before an impartial jury. This court thus left open the possibility that a properly conducted voir dire can eliminate problems of bias. In contrast to the voir dire in Faulisi, the jury selection process here was thorough and therefore sufficient to protect defendant’s right to trial before an impartial jury. The trial court in Faulisi questioned the prospective jurors en masse whereas the jurors here were questioned first individually as part of a panel of four in a courtroom separate from where the remainder of the venire waited; they were then questioned individually by counsel while the remainder of the panel was not in the courtroom. In Faulisi the court refused to inquire, although so requested by counsel, whether a juror had heard any discussion in the jury room which would bear on her impartiality, whereas counsel here was given broad opportunity to root out partial jurors by asking the prospective jurors about any bias which might have arisen from their inclusion in Taylor’s venire. Counsel’s questioning elicited no answers indicating any actual prejudgment of defendant as a consquence of the prospective jurors’ participation in Taylor’s venire. Furthermore, defense counsel did not see fit to challenge any jurors for cause because of any prejudice resulting from their role in Taylor’s venire; nor had counsel exhausted all available peremptory challenges when all the members of the overlapping venire had been questioned (see People v. Ford (1960), 19 Ill. 2d 466, 475, holding that a defendant who has failed to use his peremptory challenges is in no position to complain about the jury selections).

We find support for our conclusion that defendant was not denied his right to trial before an impartial jury and is not entitled to a new trial by analogy to cases concerning bias from pretrial publicity. In both instances the question is whether exposure to information from beyond the courtroom concerning a defendant’s case has made it impossible for the jurors to be impartial toward that defendant. In People v. Torres (1973), 54 Ill. 2d 384, 388-90, this court noted that the voir dire examination is, in instances of pretrial publicity, the most valuable tool by which to ascertain partiality or indifference among persons summoned as jurors. The same principle holds true in instances of overlapping venires. Nor were such egregiously prejudicial circumstances revealed here which would support a presumption of prejudice; the circumstances here are not analogous to those in cases involving pretrial publicity such as Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639, and Sheppard v. Maxwell (1966), 384 U.S. 333, 16 L. Ed. 2d 600, 86 S. Ct. 1507, in which prejudice was presumed because the jurors were exposed to virulent trials of the defendants by the media.

In sum, it will not be presumed that an entire jury venire is prejudiced against a defendant solely because the defendant’s and a codefendant’s venires overlapped. Additional circumstances strongly indicating bias and partiality must be present. In most instances, voir dire is the proper and effective tool to be used to discover and exclude jurors who are actually biased against a defendant for any reason, including participation in a codefendant’s venire. In this case, the voir dire examination was thorough and there is no indication that the jury which convicted defendant was not fair and impartial.

The second issue defendant raises is whether the trial court abused its discretion by not allowing his challenge for cause of juror Leslie Hunt when the defense first brought to the court’s attention the fact that Mrs. Hunt’s husband was a nephew of the man defendant was charged with killing and whether, as a consequence of the asserted error, defendant was denied his right to an impartial jury. Defendant argues also that the alleged error was not cured but was in fact compounded when the court excused Mrs. Hunt after the presentation of all the evidence but before deliberation.

After the jury was sworn but before the presentation of evidence, the defense became aware that when Mrs. Hunt was questioned as part of Taylor’s venire she had volunteered that her husband was related to the deceased. The defense brought the matter to the attention of the court. In response to questioning, Mrs. Hunt stated that her personal contact with deceased was limited to five or six meetings at family gatherings and that her relationship with the deceased would not influence her because she would not want to send an innocent man to jail. Despite the urgings of her husband and his family, Mrs. Hunt stated she had no “special opinion” in this matter. Mrs. Hunt related that her husband and his family did not think she should be on the jury and had made her life difficult dúring the weekend after she was sworn in but before the trial began. During the questioning, Mrs. Hunt was on the verge of tears because of her husband’s and his family’s criticism of her willingness to be a juror.

At this point the defense had exhausted all its peremptory challenges. The trial court denied defendant’s challenge for cause on the grounds that he was impressed by Mrs. Hunt’s repulsion toward her treatment at home, by her honesty and intelligence, and by her commitment to the principle that defendant was innocent until proved guilty.

Following the presentation of the evidence and the conference on instructions, both the prosecution and defense moved to have Mrs. Hunt excused and replaced by an alternate since members of Mrs. Hunt’s family had admitted to defense counsel and the prosecutor that they had insisted on discussing the case with Mrs. Hunt although she had explained that she was not allowed to speak to them about the matter. The court allowed the motion but noted that it was not because he believed Mrs. Hunt was prejudiced. He then apologized to Mrs. Hunt for her difficult experience, including the fact that she had been sequestered separately from the other jurors and had otherwise been singled out for different treatment. The court made no statement regarding the substitution to other jurors.

The determination of whether or not to allow a challenge for cause is within the sound discretion of the trial judge. (People v. Harris (1967), 38 Ill. 2d 552, 556.) A reading of the examination of Mrs. Hunt convinces us that the trial court did not err in finding that she was an impartial juror. Mrs. Hunt unequivocally stated both that she would not convict the defendant unless the evidence established his guilt and that family pressures would not influence her. Furthermore, the trial court was able to observe Mrs. Hunt’s demeanor, which convinced him of her independence and impartiality. See People v. Cole (1973), 54 Ill. 2d 401, 411-15, finding no error in the trial court’s refusal to excuse for cause a juror who was acquainted with witnesses and officials involved in the prosecution of the defendant where the juror indicated he could be impartial.

Any doubt as to Mrs. Hunt’s bias and its possible effect on defendant’s conviction was removed when she was excused for cause prior to deliberation. Mrs. Hunt’s contact with the remaining jurors was minimal. Voir dire was completed on a Friday. The jurors were sworn in and sent home for the weekend with instructions not to discuss the case with anyone. The presentation of evidence took two days. The jurors were sequestered overnight. Mrs. Hunt was sequestered separately but did not tell the other jurors why she had been singled out for special treatment. The court’s questioning of Mrs. Hunt and all the proceedings relating to the defendant’s challenge for cause took place outside the presence of the other jurors. Two of the jurors lived near Mrs. Hunt, and she only speculated that they may have guessed that she was singled out because of her relationship to the deceased.

Defendant argues, however, that the fact that Mrs. Hunt was singled out for separate questioning, was sequestered separately from the other jurors, and was excused without explanation to the remaining jurors must have prejudiced the other members of the jury in that they may have assumed that defendant had threatened Mrs. Hunt or her family to secure a not guilty verdict. We note that Mrs. Hunt had volunteered to the court that she did not tell the other jurors why she had been sequestered separately but that one or two who lived near her may have guessed that it was because of her relationship to the deceased. Defendant never requested an explanation for Mrs. Hunt’s treatment and did not claim in the post-trial motion that the trial court had erred in failing to offer an explanation of Mrs. Hunt’s treatment, sua sponte. Furthermore, we see no basis for defendant’s argument, since it is purely speculation that some of the jurors might have been prejudiced by Mrs. Hunt’s treatment (see People v. Cole (1973), 54 Ill. 2d 401, 415, stating that the determination of the qualification of a juror is an issue of fact and that mere suspicion of bias is not evidence and is therefore not sufficient to disqualify a juror).

Finally, defendant contends that his conviction should be reversed because he appeared before the venire in handcuffs. On the first day of jury selection defendant appeared in open court to waive his right to be present at trial and then left the courtroom. The trial court denied defense counsel’s request that he be permitted to make certain statements outside the presence of the venire concerning the fact that defendant was waiving his right to be present at trial against counsel’s advice. However, counsel made no objection to defendant’s appearance before the prospective jurors in handcuffs.

We hold that defendant waived any error by failing to object to his appearance in handcuffs. The United States Supreme Court’s opinion in Estelle v. Williams (1976), 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691, provides guidance. There the defendant appeared before the jury in prison garb without objection. The Supreme Court held that, “although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” (Estelle v. Williams (1976), 425 U.S. 501, 512-13, 48 L. Ed. 2d 126, 135, 96 S. Ct. 1691, 1697.) A similar conclusion is justified here since similar considerations involving a defendant’s right to the presumption of innocence are implicated when the defendant appears before the jury in handcuffs.

Contrary to defendant’s position, our cases, In re Staley (1977), 67 Ill. 2d 33, and People v. Boose (1977), 66 Ill. 2d 261, do not mandate a different result. They are distinguishable in that the defendants there, unlike the defendant here, were improperly compelled to appear in handcuffs over objection.

For the reasons stated, the judgment of the appellate court affirming defendant’s convictions is affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I believe the majority is seriously mistaken; and I believe the dissent in the appellate court (63 Ill. App. 3d 575, 584) is correct.

Given People v. Faulisi (1966), 34 Ill. 2d 187, and People v. Kirkpatrick (1953), 413 Ill. 595, I do not see how the majority could declare “it will not be presumed that an entire jury venire is prejudiced against a defendant solely because the defendant’s and a codefendant’s venires overlapped.” (77 Ill. 2d at 237.) The majority attempts to distinguish the instant case from Faulisi and Kirkpatrick on the basis that in each of those cases the same venire or pool provided the jurors for the separate trials of defendant and codefendant, whereas here the overlapping venire was only part of the much larger pool from which defendant’s jury was selected. Faulisi and Kirkpatrick do not suggest that had there been a partial overlapping of jury venires or pools, the problem of a biased and partial jury would have been cured. Those cases demonstrate that it is the danger of prejudice which requires reversal. It is difficult to show actual prejudice.

The possibility of prejudice was acutely heightened by the trial court’s failure to excuse juror Leslie Hunt for cause as soon as her “conflict of interest” was revealed to the court. The fact that she was excused prior to the jury’s deliberation, but after the evidence had been presented, only marginally lessened the prejudice and error. Mrs. Hunt’s relationship to the deceased victim — wife of the victim’s nephew — makes irrelevant her apparently sincerely held belief that she could be objective. Whether her family urged her to remove herself or urged her to “convict” the defendant, she had a conflict of interest which was more than potential. The defendant contends, reasonably I think, that the “special treatment” of Mrs. Hunt — she was singled out for questioning and sequestered separately from, and excused without explanation to, the other jurors — may have prejudiced the other members of the jury. The majority rejects this as speculative. Although it is true that the party challenging a juror or jurors for cause bears the burden of showing that the juror has or jurors have a disqualifying state or states of mind (see People v. Cole (1973), 54 Ill. 2d 401, 413), this would be difficult to prove in the circumstances here. Yet the circumstances here are such that they demonstrate prejudice per se. The defendant should not have to prove actual prejudice or a disqualifying state of mind, perhaps an impossibility, where the juror’s relationship was so palpably a conflict. Mrs. Hunt’s relationship to the victim was not “a merely formal position” as in People v. Ward (1965), 32 Ill. 2d 253, 259, but a personal one, a relationship which resulted in pressure from her family and in-laws, as she admitted.

For these reasons, I would reverse the appellate and circuit courts.

MR. JUSTICE MORAN joins in this dissent.


text:
    (No. 51614.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROY ALAN NUNN, Appellee.

      Opinion filed October 19, 1979.

      William J. Scott, Attorney General, of Springfield, and Thomas Homer, State’s Attorney, of Lewistown (Donald B. Mackay, Carolyn B. Notkoff, James A. Devine, and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, of Ottawa (Mark W. Burkhalter, Assistant Defender, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Early in the morning of October SO, 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. 95½, par. 11 — 401(a)), and driving on a suspended license (Ill. Rev. Stat. 1975, ch. 9514, 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. 95½, 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. 95½, 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 (Bruni v. Department of Registration and Education (1974), 59 Ill. 2d 6, cert. denied (1975), 421 U.S. 914, 43 L. Ed. 2d 780, 95 S. Ct. 1573).

In any event, here the presumption is not invocable because the action of the legislature in 1935 was to adopt a new act, the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1935, ch. 121, pars. 276 through 417), and not to amend the previous statute. The presumption of a legislative intent to change the law as it formerly existed does not then apply. (See City of Chicago v. Nielsen (1976), 38 Ill. App. 3d 941.) This was illustrated, too, in State v. Feintuch (1977), 150 N.J. Super. 414, 375 A.2d 1223, where the appellate division of the superior court of New Jersey considered the precise question before us. The court held that the legislature in enacting a new so-called “hit and run” statute, which did not include the term “knowing” as had appeared in the superseded statute, did not intend to discontinue the requirement of knowledge.

Nor does the omission or addition of words in a new statute necessarily indicate a legislative intent to change the effect of the earlier statute. This court in Vause & Striegel, Inc. v. McKibbin (1942), 379 Ill. 169, 175, observed:

“In the revision of statutes neither an alteration in phraseology, nor the omission or addition of words in the later statute, necessarily alters the construction of the former act. A change of construction is authorized only where the intent of the legislature is clear or the language used in the revised statute plainly requires it. (Bartholow v. Davies [1917], 276 Ill. 505.)”

A factor to be considered in determining whether a statute creates an absolute-liability offense is the possible punishment which can be imposed for a violation. It would certainly be unreasonable to conclude that the legislature intended to subject a person to a severe penalty for an offense that he might unknowingly commit. (See Morissette v. United States (1952), 342 U.S. 246, 256, 260-61, 270-71, 96 L. Ed. 288, 296-97, 298-99, 304-05, 72 S. Ct. 240, 246, 248-49, 253-54.) The statute involved here, section 11 — 401, provides for penalties that in this context must be considered substantial. The offense created is a Class A misdemeanor calling for a maximum penalty of a fine of $1,000 and a sentence to the penitentiary of 364 days.

Our legislature in section 4 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 9) has clearly showed its intention that one should not be subject to serious criminal penalties unless the proscribed act has been committed knowingly. The section provides that there may be an absolute-liability offense only if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500 or where the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 9.) In considering whether there was such a legislative purpose in enacting a statute, the simple fact that there is no express language calling for a mental state, such as knowledge, does not of itself require a conclusion that none is required and that the offense created is an absolute-liability offense. (See Morissette v. United States (1952), 342 U.S. 246, 263, 96 L. Ed. 288, 300, 72 S. Ct. 240, 250; People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 424.) This is illustrated in the committee comments to section 4 — 9, which in part state:

“This section is intended to establish, as an expression of general legislative intent, rather strict limitations upon the interpretation that mental state is not an element of an offense, although the express language of the provision defining the offense fails to describe such an element. ***
* * *
In addition to permitting a construction requiring absolute liability in offenses [not] punishable by incarceration or by a fine of not more than $500, the second part of section 4 — 9 expresses the policy that in other offenses not including a mental state in the definition only a clearly indicated legislative intent to create absolute liability should be recognized, and in all other instances, a mental-state requirement should be implied as an application of the general rule that an offense consists of an act accompanied by a culpable mental state, as expressed in Section 4 — 3.” (Ill. Ann. Stat., ch. 38, par. 4 — 9, Committee Comments, at 283 (Smith-Hurd 1972).)

This court in People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 423-25, quoted from these committee comments in holding that the penalty provision of the Motor Fuel Tax Law required a showing of knowledge to establish a violation of the statute even though there was no express requirement for knowledge in the penalty provision of the statute.

It should be observed that in People v. Walker (1974), 18 M. App. 3d 351, upon which the People rely, the court did not consider the provisions of section 4 — 9 which we have just discussed or the committee comments to the section when it, erroneously, we judge, held that section 11 — 401 created an absolute-liability offense.

Most States have adopted what have been popularly described as “hit and run” statutes, a majority of which have been patterned after the Uniform Motor Vehicle Code and which are similar to our statute. (Uniform Vehicle Code sec. 10 — 101 et seq. (1962). See also Annot., 23 A.L.R.3d 497 (1969).) In many jurisdictions where the statutes do not contain the terms “knowingly,” or “wilfully” or similar language, courts have held that a driver must have had knowledge of the collision or accident before he can be held accountable under the statute. (See, e.g., Kimoktoak v. State (Alas. 1978), 584 P.2d 25; State v. Wall (1971), 206 Kan. 760, 482 P.2d 41; State v. Martin (1968), 73 Wash. 2d 616, 440 P.2d 429, cert. denied (1969), 393 U.S. 1081, 21 L. Ed. 2d 773, 89 S. Ct. 855; State v. Lemme (1968), 104 R.I. 416, 244 A.2d 585; Herchenbach v. Commonwealth (1946), 185 Va. 217, 38 S.E.2d 328.) There are other jurisdictions which go beyond this requirement and in addition require that the accused have knowledge that an injury or death was involved. (See, e.g., State v. Minkel (1975), 89 S.D. 144, 230 N.W.2d 233; State v. Etchison (1972), 188 Neb. 134, 195 N.W.2d 498; Campbell v. Westmoreland Farm, Inc. (E.D.N.Y. 1967), 270 F. Supp. 188; People v. Holford (1965), 63 Cal. 2d 74, 403 P.2d 423, 45 Cal. Rptr. 167.) The People do not cite, and our research has not disclosed, a single decision in which a hit and run statute has been held to create an absolute-liability offense.

The Supreme Court of Kansas in State v. Wall (1971), 206 Kan. 760, 482 P.2d 41, considered the question of what knowledge was required of an accused in order to establish a violation of two Kansas statutes that were identical to sections 11 — 401 and 11 — 403. The court held that knowledge that there had been a “collision” must be proved in order to show a violation. The court observed that since the statute imposed an affirmative duty to render aid to victims of an accident involving injury or death the legislature could not reasonably be said to have intended to impose the harsh penalty provided upon persons who were unaware that there had been a collision. (206 Kan. 760, 764, 482 P.2d 41, 45.) We consider this to be a proper conclusion. Too, we would note that an obvious purpose of the statute is to assure that injured victims of accidents be given prompt medical attention. (Ill. Rev. Stat. 1975, ch. 95½, par. 11 — 403.) It is apparent that this duty to render aid to victims could not be imposed upon a driver without requiring that he have knowledge that an accident or collision had occurred.

We consider that to show a violation of section 11 — 401 the prosecution is required to prove that the accused had knowledge that the vehicle he was driving was involved in an accident or collision. We do not, however, hold that it is necessary for the prosecution to show also that the accused knew that injury or death resulted from the collision. To require this additional proof would impose a burden that would be unrealistically difficult to sustain and would tend to defeat the public interest which is served by requiring persons involved in vehicle collisions to stop and provide identification and other personal information and to be available to render assistance if required.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.