dissenting:
I would affirm the defendant’s convictions for aggravated assault (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 2(a)(1)) and unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a)(10)).
By reversing defendant’s conviction of aggravated assault, the majority of this court has overreached the traditional bounds of appellate review. It is the function of the trier of fact to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Zuniga, 53 Ill. 2d 550, 559, 293 N.E.2d 595,600.) Accordingly, where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. People v. Akis, 63 Ill. 2d 296, 298-99, 347 N.E.2d 733, 734.
Section 12 — 1 of the Illinois Criminal Code provides that a person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery. (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 1.) Section 12 — 2(a)(1) makes that assault aggravated when the person uses a deadly weapon. (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 2(a) (1).) I agree with the majority that the mere fact defendant was speeding and involved in an automobile accident does not render him guilty of aggravated assault. But the evidence shows more.
Victor Mladic testified that he and his brother gave chase to defendant and pulled their car in front of his. A second car, also in pursuit of defendant, subsequently pulled up behind him. Mladic and his brother then approached defendant’s car. As Mladic opened the door, he noticed that defendant was raising a gun. He knocked the gun from defendant’s hand, and along with his brother, pulled defendant from his car. Defendant then started swinging, but eventually was subdued by Mladic and his brother. Mladic picked up the gun and later gave it to the police officer who arrived at the scene. Both the gun and the cartridges it contained were admitted into evidence. Defense counsel stipulated that the gun was recovered from defendant.
As I have stated above, a person commits an aggravated assault, when, without lawful authority, he uses a deadly weapon to place another in reasonable apprehension of receiving a battery. Clearly the evidence demonstrates that by his conduct defendant placed Victor Mladic in reasonable apprehension of being shot. Apparently the majority of this court believes from the conflicting evidence that defendant’s conduct was justified under the circumstances. Again I must state that where the evidence is merely conflicting, a court of review should not substitute its judgment for that of the trier of fact. This is particularly true in a case such as this where there is no request by appellate defense counsel to do so. For these reasons I would affirm defendant’s conviction of aggravated assault.
I further believe that the defendant did not comport with all the statutory prerequisites which exempt security guards from being charged and convicted for unlawful use of weapons. According to section 24 — 2(a) (4) of the Criminal Code of 1961, an individual does not violate section 24 — 1(a) (10) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 24 — l(a)(10)) if he is a security guard who (1) is actually engaged in the perforníánce of his duties of employment or is commuting between his home and place of employment; (2) has successfully completed a 30-hour course of study approved by the Department of Registration and Education; and (3) carries, at all times in which he possesses a concealable weapon, suitable documentation from the above department that he successfully completed such course. (Ill. Rev. Stat., 1973, ch. 38, par. 24 — 2(a)(4).) Moreover, as the majority notes, the defendant has the burden of producing a quantum of evidence that sufficiently places the question of exemption in issue before the State must prove the defendant guilty of said issue beyond a reasonable doubt. People v. Williams, 28 Ill. App. 3d 67, 70, 328 N.E.2d 192, 195.
Applying the above legislative provision and legal precept to the case at bar, it is apparent that the defendant could not avail himself of section 24 — 2(a)(4) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 2(a)(4)). Besides the State’s contention on review over whether the defendant was actually engaged in the performance of his duties of employment at the time of his arrest,1 the record unequivocally demonstrated that on the night of the incident, the defendant did not possess suitable documentation from the Department of Registration and Education that he had successfully completed his course of study. While my colleagues, in reversing the defendant’s conviction for unlawful use of weapons, rely on (1) the defendant’s testimony that he had other city and State identification on the night in question, and (2) that he had, in fact, completed the 30-hour training course, it is important to note that such information merely satisfied the defendant’s burden of producing a quantum of evidence sufficient to place the exemption issue in question. (People v. Williams, 28 Ill. App. 3d 67, 71, 328 N.E.2d 192, 195.) Moreover, by eliciting from the defendant on cross-examination that he did not possess a card on January 19, 1975, showing that he had completed the training course, the State did meet its burden of proving that the defendant did not fall within the ambits of section 24 — 2(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 2(a)(4)).
Besides the majority misapprehending the purpose of the information which they believed warranted a reversal of the defendant’s conviction for unlawful use of weapons, their reliance on such factors evidently caused them to ignore the unambiguous language contained in the provision exempting security guards. Pursuant to section 24 — 2(a)(4) of the Criminal Code of 1961, it is incumbent upon a security guard to carry the documentation he received from the Department of Registration and Education “at all times when he is in possession of a concealable weapon.” (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 2(a)(4).) (Emphasis added.) Contrary to the explicit exculpatory provision regarding the failure to possess a driver’s license contained in section 112 of the Illinois Driver Licensing Law (Ill. Rev. Stat. 1973, ch. 95/2, par. 6 — 112),2 section 24 — 2(a)(4) of the Code does not delineate an exception to the above language if a particular defendant produces (1) other identification cards at the time of his arrest or (2) the required card subsequent to his arrest for such violation. Thus, the mere fact that the defendant had other city and State identification or that he had completed the 30-hour training course was of no consequence since the record evinced that he failed to carry the required documentation on January 19, 1975, while in the possession of a concealable weapon. See People v. Cahill, 37 Ill. App. 3d 361, 364, 345 N.E.2d 528, 530.
In light of the above reasoning, I therefore believe that the pertinent legislative enactments and legal tenets governing the case at bar militate against the bases adopted by my colleagues in deciding to reverse the defendant’s convictions for aggravated assault (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 2(a) (1)) and unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a)(10)). Hence, the judgment of the trial court should be affirmed.
The State takes issue in its brief with the defendant’s testimony that he was investigating a divorce case at the time of the incident. While the defendant maintained on cross-examination that he was trying to locate a man’s wife and children at 1 in the morning, the State posits that such testimony is incredible and the trial judge, sitting as trier of fact, was not obligated to believe such account.
Section 112 of the Driver Licensing Law provides in relevant part:
“Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.” (Ill. Rev. Stat. 1973, ch. 95'i, pars. 6 — 112.) (Emphasis added.)