concurring in part and dissenting in part.
I concur in the majority opinion insofar as it affirms the conviction of obstructing a police officer. I dissent, however, from the affirmance of defendant’s conviction of carrying a concealed weapon in violation of I.C. § 18-3302.
I.C. § 18-3302 prohibits the carrying without a permit of a concealed weapon “upon or about” one’s person “within the limits or confines of any city ... or on public highways.” The criminal complaint filed against the defendant charged him in the alternative: carrying the concealed weapon within the city limits of Fruitland or carrying the concealed weapon on the public highway. This complaint was read to the jury in jury instruction number four. Defendant’s conduct while in his automobile driving on the public streets was therefore an issue before the jury as an element of the crime charged.
Regarding the defendant’s “carrying” of the weapon in his automobile, the majority opinion states the general rule: “One carries a weapon ‘upon or about his person’ not only when he physically is carrying it in his clothing or in a handbag of some sort, but also when he goes about with the weapon in such close proximity to himself that it is readily accessible for prompt use.” The latter part of this rule combines two separate and distinct factual elements. These elements are: (1) the weapon must be in *249close physical proximity to the defendant and (2) the weapon must be readily accessible for prompt use. The former does not necessarily imply the latter. And the State must prove both beyond a reasonable doubt.
Focusing upon the presence of the weapon in the defendant’s car, Officer Harris testified that the defendant “bent back over and into his vehicle and reached in under the front seat and pulled out a case.” There was no evidence whatever to prove or even suggest that the weapon was readily accessible to the defendant while he was driving the automobile. The State offered no evidence as to the physical dimensions of the automobile the defendant was driving, or as to the amount of room underneath the seat, or as to the location of the case under the seat, or as to any other facts tending to show that the weapon was “readily accessible for prompt use.” Failing to prove this element of accessibility, the State failed to carry its burden of proof that the defendant carried the weapon “upon or about” his person during the time he was driving the automobile. People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950); People v. Niemoth, 322 Ill. 51, 152 N.E. 537 (1926); Williams v. Commonwealth, 261 S.W.2d 807 (Ky.1953); Commonwealth v. Nunnelley, 247 Ky. 109, 56 S.W.2d 689 (1933); 43 A.L.R.2d 492, 541-44.
The State also failed to show that defendant carried the weapon from his automobile towards the home with an unlawful purpose. Jury instruction no. 16, referred to above in the majority opinion, informs the jury that no crime can be committed so long as the concealed weapon is being transported for innocent purposes. Yet the State offered not a shred of evidence concerning any unlawful purpose in defendant’s carrying his own gun from his car to his house. The arresting officer testified that defendant “just carried it [the weapon] in front of him and he just turned away from me and started walking' offNo evidence was introduced showing that defendant attempted to use the weapon during the ensuing fracas. In fact, the officer stated that the weapon had fallen to the sidewalk. My review of the record also fails to discern sufficient facts from which the jury could reasonably infer any unlawful purpose in defendant’s carrying the weapon into the house.
In short, if unlawful purpose is an element of the crime, and no direct or circumstantial evidence indicates such unlawful purpose, the conviction cannot stand. I would therefore reverse the conviction of carrying a concealed weapon.
BISTLINE, J., concurs.