dissenting:
I respectfully dissent.
The basic argument of the defense on appeal is that section 24— 1(a)(2) does not apply to firearms, and, therefore, the information charging the defendant failed to state an offense. The People respond, asserting that a firearm is a dangerous weapon and may be used unlawfully against another, and that section 24 — 1(a)(2) includes firearms. Section 24 — 1(a)(2) states, in part,
“(a) A person commits the offense of unlawful use of weapons when he knowingly:
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(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character.” (Ill. Rev. Stat. 1981, ch. 38, sec. 24 — 1(a)(2).)
In People v. King (1978), 58 Ill. App. 3d 199, 373 N.E.2d 1045, a case relied upon by the defense, the court held that since various other subsections of section 24 — 1(a) refer specifically to firearms, the absence of such a reference in subsection (a)(2) indicates a legislative intent to exclude firearms from the offense stated there. An opposite conclusion, and one with which I agree, was reached by the court in People v. Manzardo (1980), 87 Ill. App. 3d 129, 409 N.E.2d 44, a First District case. In Manzardo, the court rejected the reasoning and conclusion of King, stating:
“The appellate court for the Fourth District in King interpreted subsection (2) of the weapons offense section of the Criminal Code as not applying to firearms. The court distinguished People v. Musselman (1966), 69 Ill. App. 2d 454, 217 N.E.2d 420, and reasoned that a firearm was not ‘of like character' when compared to the weapons specifically enumerated in section 24 — 1(a)(2). Although the precise argument raised here and in King was not raised in People v. Musselman, it is clear that in that case a conviction under subsection (2) was sustained for unlawful use of a rifle. The court specifically commented that the rifle was ‘a dangerous or deadly weapon’ in dealing with Musselman’s argument that his criminal intent was not adequately proven. 69 Ill. App. 2d 454, 458.
We have determined to follow People v. Musselman. First, we consider that if section 24 — 1(a)(2) does not prohibit carrying or possessing a firearm with intent to use the firearm unlawfully against another, there is a hiatus in the statutory scheme for controlling the use of unlawful weapons which we do not think the legislature intended. A firearm is a dangerous weapon, and, even if unloaded or inoperable, it may be used as a bludgeon in the manner contemplated by 24 — 1(a)(2). (See People v. Chapman (1979), 73 Ill. App. 3d 546, 392 N.E.2d 391.) For example, under the aforesaid statute it would not seem unlawful to possess or carry an unloaded, unconcealed firearm in a municipality even with the specific intent to kill or do serious injury or to carry or possess a loaded firearm with similar intent outside a municipality. Therefore, we consider that, under Musselman, subsection (2) does apply to a firearm such as the revolver as it was used in this case.” (People v. Manzardo (1980), 87 Ill. App. 3d 129, 132.)
I believe the reasoning of Musselman and Manzardo is sound and that the approach in them the better one. Our supreme court, in other contexts, has noted that a firearm is a dangerous weapon even though used in a manner for which it was not designed or intended. (People v. Skelton (1980), 83 Ill. 2d 58, 64-65, 414 N.E.2d 455.) In Skelton, the court specifically noted that a handgun, gripped by the barrel, may be used as a bludgeon and is equally dangerous as such, whether loaded or unloaded. I believe we should follow the position of the court in People v. Manzardo, rejecting People v. King, and hold that the information in this case properly charged the defendant under section 24 — 1(a)(2).
For the reasons stated, I believe that the judgment of the circuit court of McDonough County should be affirmed.