¶1I conclude a properly instructed jury may infer knowledge of the collision itself from the circumstances surrounding the accident if it believes from those circumstances that the defendant could not but help have knowledge of the occurrence. Absent an instruction on the proper mental state to be applied to the case it is more than obvious that the jury was misguided to the manifest prejudice of the defendant, Nunn. The error in this case was not harmless, nor was the proof otherwise sufficient to establish guilt beyond a reasonable doubt. (See People v. Oliver (1st Dist. 1977), 50 Ill. App. 3d 665, 365 N.E.2d 618.) Accordingly I join in the majority opinion reversing the defendant’s conviction for leaving the scene, though a remandment would be in order had the defendant not already served his sentence.
¶2dissenting:
¶3I dissent. Broadly speaking this case brings into sharp focus the clash between conflicting social philosophies which are reflected in the interpretation of constitutional and statutory provisions. The only issue on this appeal is whether the court erred in faffing to instruct the jury that the offense charged requires an element of knowledge. This question, of course, involves an interpretation of whether the offense of leaving the scene of an accident requires an allegation of a mental state. Section 4 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 9), quoted in the majority opinion, authorizes legislative imposition of absolute liability in certain cases.
¶4The Illinois Supreme Court has upheld the validity of statutory provisions imposing liability without wrongful intent, stating the rationale as follows:
“Where a specific intent is not an element of the crime it is not always necessary that a criminal intent should exist. In the exercise of the police power for the protection of the public the performance of a specific act may constitute the crime regardless of either knowledge or intent, both of which are immaterial on the question of guilt. For the effective protection of the public the burden is placed upon the individual of ascertaining at his peril whether his act is prohibited by criminal statute.” People v. Fernow (1919), 286 Ill. 627, 630, 122 N.E. 155. See also People v. Billardello (1925), 319 Ill. 124, 149 N.E. 781.
¶5Hundreds of provisions in the Illinois Criminal Code of 1874, and numerous other statutes of a regulatory nature ouside of the Code, have defined offenses without requiring an express mental state. These provisions can be explained as involving the many acts that are so destructive of the social order, and also recognizing the extreme difficulty of establishing the element of criminal intent. Consequently in the interest of justice, the legislature has provided that the doing of the act itself constitutes a crime regardless of knowledge or criminal intent on the part of the defendant. The Committee Comments to section 4 — 9 state, “In view of the difficulty of enforcing such provisions if mental state must be proved in each instance, the assumption seems proper that in these instances the omisson of such a requirement is intended to create absolute liability.”
¶6Of greater importance, however, is the legislative history of section 11 — 401(a) of the Illinois Vehicle Code. To me it appears clear that the legislature purposefully drafted the present “leaving the scene” statute without requiring knowledge or criminal intent on the part of a driver. The original statute enacted in 1923 required “no person operating or driving a vehicle on the highway knowing that an injury has been caused ° ° (Emphasis added.) (Ill. Rev. Stat. 1925, ch. 121, par. 242(a).) That statute was changed prior to 1955 by the legislature to eliminate the mental element and since that time knowledge is not an element of proof.
¶7Since many years have elapsed without legislation readopting the knowledge element, I feel compelled to construe the present statute so that it will give effect to the intention of the legislature in adopting the change, and not resort to judicial legislation that the majority opinion attempts to formulate. In construing statutes, the intention of the legislature is to be ascertained and given effect, if possible, and if the statute is susceptible of more than one construction, it should be given the construction which will effect its purpose, rather than one which will defeat it. (People v. Joyce (1910), 246 Ill. 124, 130, 103 N.E. 581.) A long time ago Justice Cardozo aptly said:
“Within the field where men of reason may reasonably differ, the legislature must have its way.” Williams v. Mayor of Baltimore, 289 U.S. 36, 42, 77 L. Ed. 1015, 1022, 53 S. Ct. 431, 433.
¶8The precedent established in People v. Walker (1st Dist. 1974), 18 Ill. App. 3d 351, 309 N.E.2d 716, should be followed, as the trial court in this case gave the proper instruction. The conviction should be affirmed.