{
  "id": 3350114,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA J. SMITH, Defendant-Appellant",
  "name_abbreviation": "People v. Smith",
  "decision_date": "1978-05-26",
  "docket_number": "No. 14752",
  "first_page": "403",
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  "last_updated": "2023-07-14T19:17:48.742090+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA J. SMITH, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE GREEN\ndelivered the opinion of the court:\nAfter trial by jury in the circuit court of Macon County, defendant Linda J. Smith was convicted of the offense of cruelty to children (Ill. Rev. Stat. 1975, ch. 23, par. 2368) and sentenced to 2 years probation. She has preserved for review her contention that the information failed to properly charge her with the offense with which she was convicted. On appeal this is her sole claim of error.\nThe offense of cruelty to children is defined by statute as follows:\n\u201cAny person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice or other person under his legal control, shall be guilty of a Class 4 felony.\u201d Ill. Rev. Stat. 1975, ch. 23, par. 2368.\nThe charge alleged that defendant:\n\u201c * * * committed the offense of CRUELTY TO CHILDREN, * * * in that [Defendant] * * * wilfully did injure the health of a child under the legal control of [Defendant] * * *. \"\nDefendant contends and the State does not dispute that a charge must set forth the nature and elements of an offense and that where the offense is without common law derivation, the charge should describe the offense as fully as the statute defining it. At issue here is the question of whether the State was required to allege that the injury to the child was inflicted \u201cunnecessarily.\u201d\nThe State maintains that the adverb \u201cunnecessarily,\u201d as used in the statute, modified only the verb \u201cexpose\u201d while the defendant argues that it modifies both the verbs \u201cexpose\u201d and \u201cinjure.\u201d In the context of the statute the adverbs \u201cunnecessarily\u201d and \u201cwilfully\u201d obviously modify the same word or words. The word \u201cshall\u201d is used twice in the sentence defining the offense. The first time it precedes \u201cwilfully and unnecessarily expose\u201d while the second time it precedes \u201cin any other manner injure.\u201d Significantly \u201cwilfully and unnecessarily\u201d are not also repeated the second time. This sequence of words indicates that the adverbs were intended to modify only \u201cexpose.\u201d The decision in Lynam v. People (1896), 65 Ill. App. 687, construing a substantially similar statute, gives further weight to this construction. There the court ruled that the offense of cruelty to children is of two types, exposing and injuring, and that injury is not a necessary element of exposing.\nDefendant maintains that the State\u2019s interpretation makes the statute one of absolute liability without requiring a mental state and is so vague as to be unconstitutional. She further contends that her interpretation is technically correct and that this court so indicated in People v. Holmes (1973), 13 Ill. App. 3d 955, 301 N.E.2d 316.\nDefendant\u2019s contentions must be examined in the light of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1 et seq.). Section 4\u20149 of that Code limits absolute liability offenses to those where \u201cthe statute defining the offense clearly indicates a legislative purpose to impose absolute liability\u201d and those not punishable by incarceration or a fine in excess of $500. The statute creating the offense of cruelty to children does not clearly indicate a legislative purpose of imposing absolute liability and the offense is stated to be a Class 4 felony. Under the State\u2019s interpretation, no mental state is expressed for the offense concerning the injuring of a child but that omission is cured by section 4\u20143(b) of the Code. That section states in part:\n\u201cIf the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4\u20144, 4\u20145 or 4\u20146 is applicable.\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 4\u20143(b).)\nThose sections describe the mental states of intent, knowledge and recklessness. Section 4\u20143(a) states that one of those mental states or negligence, as described in section 4\u20147, is an element of every offense which is not an absolute liability offense. Section 4\u20145(b) states in part:\n\u201cConduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.\u201d Ill. Rev. Stat. 1975, ch. 38, par. 4\u20145(b).\nThus the Criminal Code makes the offense of cruelty to children by means of injury a viable and definitely stated offense even if the adverb \u201cwilfully\u201d does not modify the verb \u201cinjure.\u201d By the terms of section 4\u20143(b), when no mental state is set forth in the statute defining the offense, the mental state of either intent, knowledge or recklessness is applicable. Here the State elected to charge wilfulness which, by the terms of section 4\u20145(b), is a proper way of alleging knowledge.\nSimilarly the Criminal Code makes cruelty by way of injury a viable offense even if the adverb \u201cunnecessarily\u201d does not modify the verb \u201cinjure.\u201d Section 7\u201413 of the Code makes necessity an affirmative defense. Thus, one who injures children by reason of necessity is not guilty of cruelty to children. The only practical difference between the State\u2019s interpretation and that of the defendant is that under the State\u2019s interpretation, the defendant has to introduce some evidence of necessity to raise the issue. Because requiring the State to go forward with proof of the defendant\u2019s lack of necessity would require the State to go forward with proof of a negative, an interpretation of the statute making necessity an affirmative defense is consistent with good criminal procedure.\nWe have indicated that we conclude that a technical interpretation of the statute favors the construction given thereto by the State. In Holmes, 13 Ill. App. 3d 955, 301 N.E.2d 316, a case involving a prosecution for cruelty to children by injuring them, this court did state that the State had sustained its burden of proof by showing that \u201cthe defendant wilfully and unnecessarily injured a child under his control\u201d but lack of necessity was there charged and the question of whether its allegation was required was not in issue. Our decision in Holmes adds little weight to defendant\u2019s contention.\nWe conclude, both from a technical interpretation of the statute defining the offense and from an examination of the overall theory of the Criminal Code that lack of necessity was not a required allegation of the charge in this case. We affirm.\nAffirmed.\nMILLS and REARDON, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE GREEN"
      }
    ],
    "attorneys": [
      "Carpel & Bourey, of Decatur, for appellant.",
      "Patrick M. Walsh, State\u2019s Attorney, of Decatur (Frances C. Hulin, Assistant State\u2019s Attorney, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA J. SMITH, Defendant-Appellant.\nFourth District\nNo. 14752\nOpinion filed May 26, 1978.\nCarpel & Bourey, of Decatur, for appellant.\nPatrick M. Walsh, State\u2019s Attorney, of Decatur (Frances C. Hulin, Assistant State\u2019s Attorney, of counsel), for the People."
  },
  "file_name": "0403-01",
  "first_page_order": 425,
  "last_page_order": 428
}