dissenting:
I respectfully dissent from the majority’s holding that the issue of whether the broken glass bottle is a dangerous weapon as defined in section 33A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1) is a question of law and that the trial court properly instructed the jury on this question. I further disagree with the majority’s statement that, in determining whether the defendant is “armed with a dangerous weapon” under section 33A — 1, it is proper to consider that the weapon had no legitimate use and how it was used.
Approaching the latter problem first, it is important to recognize initially that we are here concerned with the crime of armed violence, which makes it a criminal offense to commit a felony while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2; People v. Donaldson (1982), 91 Ill. 2d 164, 168.) The term “armed with a dangerous weapon” for purposes of the armed violence statute is specifically defined as follows:
“§33A — 1. Definitions, (a) ‘Armed with a dangerous weapon’. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like character.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1.)
The prohibited weapons are specifically named and include “any other deadly or dangerous weapon or instrument of like character.” This inclusion of other such weapons of like character does not, in my opinion, warrant the conclusion drawn by the majority that it is proper to consider the use of the weapon to determine if it is deadly or dangerous.
The purpose of the armed violence statute and its severe Class X penalty is not only to punish the criminal and protect society from him, but also to deter his conduct — that of carrying the specified weapon while committing a felony. (People v. Alejos (1983), 97 Ill. 2d 502, 509.) It is clear that the legislature did not intend that the “use” of the weapon in the commission of a felony was necessary to commit armed violence, as the mere physical presence of a weapon while a crime is being committed is a sufficient threat to warrant proscription. People v. Haron (1981), 85 Ill. 2d 261, 268.
The fundamental problem with the majority’s reasoning in concluding that in a prosecution for armed violence it is permissible to consider whether the weapon had no legitimate use and how it was used in the particular case in determining if it is a dangerous weapon is that this approach and the cases relied on by the majority fail to observe the distinct statutory definition of “armed with a dangerous weapon” contained in section 33A — 1 and its interrelationship with the purpose of the armed violence offense to punish and deter the carrying of a dangerous weapon while committing a felony. Consequently, People v. Weger (1987), 154 Ill. App. 3d 706, and City of Pekin v. Shindledecker (1981), 99 Ill. App. 3d 571, relied on by the majority, and cases cited in those opinions, which hold that a weapon not specifically listed in section 33A — 1 can become a dangerous weapon when it is used in a manner dangerous to the well-being of the individual harmed, are incorrectly applying the dangerous weapons provisions in other sections of the Criminal Code, the armed robbery and unlawful use of weapons statutes, which are not relevant to the specific definition in section 33A — 1.
What constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified. (People v. Myers (1981), 101 Ill. App. 3d 1073, 1075; People v. Watkins (1981), 94 Ill. App. 3d 749, 753.) I further observe that the committee note under the definition for dangerous weapon in Illinois Pattern Jury Instructions, Criminal, No. 4.17 (2d ed. 1981) (hereinafter IPI Criminal 2d) states that this instruction is not to be given, inter alia, in armed violence cases. In this instruction, the manner and use of the object or instrument may be considered in determining whether it is a dangerous weapon. Thus, there is authority that the specific definition of “armed with a dangerous weapon” in the armed violence statute is distinct from the definition and use of the term “dangerous weapon” in other provisions in the Criminal Code.
For the foregoing reasons, I do not agree that, for those weapons not specifically listed in section 33A — 1 of the Criminal Code, a weapon still can become a dangerous weapon depending upon how it is used and whether it has any legitimate use. I would not follow People v. Weger, relied on by the majority.
The next issue to be addressed is whether, in a jury case, the court or the jury determines whether the broken glass bottle is a “deadly or dangerous weapon or instrument of like character” to the category I weapons, applicable hereto, of a “knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, or stiletto.” (See Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(b).) The majority concludes that the question is one to be determined as a matter of law and is not to be submitted to the jury, as occurred here when the trial judge gave an instruction based on IPI Criminal 2d No. 11.19, as follows:
“A person commits armed violence when he commits the offense of aggravated battery while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a broken glass bottle.”
Defendant objected to this instruction on the basis that whether the broken glass bottle was a dangerous weapon was a factual question for the jury. He did not offer an alternative instruction at trial, although it appears the trial judges believed he was correctly following IPI Criminal 2d No. 11.19 by inserting the words “broken glass bottle” in the second blank provided for in IPI Criminal 2d No. 11.19.
IPI Criminal 2d No. 11.19 provides as follows:
“A person commits armed violence when he commits the offense of_while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a__”
The committee note indicates that the name of the alleged dangerous weapon is to be inserted in the second blank. Thus, it would appear that the trial judge followed the direction of the IPI committee. The majority here concludes that a broken glass bottle is a dangerous weapon as a matter of law, citing three cases for this proposition. However, none of those cases involve the issue of how the jury should be instructed on the dangerous weapon question and state propositions of law premised either incorrectly on the use of the weapon (People v. Thornton (1986), 145 Ill. App. 3d 669; People v. Samier (1985), 129 Ill. App. 3d 966), or on an offense other than armed violence (People v. Hunter (1973), 14 Ill. App. 3d 879).
In my opinion, where the weapon in question in an armed violence prosecution is sought by the prosecution to be considered as a “deadly or dangerous weapon or instrument of like character,” this becomes a factual question for the trier of fact. In this situation, the second blank in IPI Criminal 2d No. 11.19 should contain the words “deadly or dangerous weapon or instrument of like character.” In this regard, the trial judge erred in inserting the words “broken glass bottle” in the second blank as that, in effect, conclusively informed the jury that a broken glass bottle is a dangerous weapon. Further, the committee note for use of IPI Criminal 2d No. 11.19 is somewhat misleading as it states the name of the alleged dangerous weapon should be inserted. This comment is correct when the weapon is one specifically enumerated in section 33A — 1 but is inaccurate where the weapon is asserted to be a dangerous weapon under the phrase “other deadly or dangerous weapon or instrument of like character.” Finally, under my analysis, the other deadly or dangerous weapon or instrument cannot just be any weapon but must be “of like character” as one of the weapons enumerated in section 33A — 1.
Having concluded that the issue of whether a weapon not enumerated in section 33A— 1 is a deadly or dangerous weapon of like character is one for the jury, I would also add that initially the judge may, in an appropriate case, have to determine whether, as a matter of law, the question should be submitted to the jury. That is to say that if the judge should conclude as a matter of law that the weapon is not a deadly or dangerous weapon or instrument of like character, there the issue would not be submitted to the jury, and, presumably, the judge would grant a defendant’s motion for a directed verdict on the charge of armed violence. As defendant only raised the issue that the jury should determine if the broken glass bottle was a deadly or dangerous weapon or instrument of like character, I need not determine whether, as a matter of law, the broken bottle was not such a weapon. On this point, however, I wish to amplify on this court’s decision in People v. Westefer (1988), 169 Ill. App. 3d 59, an armed robbery case, on which the State relies for the proposition that where the character of the weapon is such as to admit of only one conclusion, the question becomes one of law for the court. Westefer, 169 Ill. App. 3d at 61-62; see also People v. Skelton (1980), 83 Ill. 2d 58, 66.
As previously stated, a dangerous weapon in an armed robbery case is not the same as those classified in the armed violence statute. However, the citation to Westefer provides me with an opportunity to elaborate on what we stated therein. In Westefer, the narrow issue presented was whether a utility knife used in an armed robbery can be termed a dangerous weapon as a matter of law in the context of a request by defendant for an instruction on the lesser included offense of robbery. (Westefer, 169 Ill. App. 3d at 61.) In presenting the issue to this court, the parties focused only on the character of the weapon and the trial judge’s opinion that it was a dangerous weapon. Both parties only argued whether the weapon was dangerous per se, citing People v. Skelton (1980), 83 Ill. 2d 58, and People v. Dwyer (1927), 324 Ill. 363, and did not raise the broader issue of whether the court could make the determination as a matter of law. That question was not before us.
As the trial judge did not properly instruct the jury, the judgment below must be reversed and the cause remanded for a new trial. I need.not address whether the act of picking up the bottle and breaking the bottle in the course of hitting the victim with it and then stabbing the victim with it is “carrying about his person or otherwise armed with a category I or category II weapon” in order to fall within the meaning of the armed violence statute. Neither the defendant nor the majority raised or discussed this potential issue.