People v. Wilson

Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Carol Wilson (defendant) was charged with unlawful use of a weapon. (Ill. Rev. Stat. 1973, ch. 38, par. 24—1(a)(4).) After a bench trial, defendant was found guilty and sentenced to 6 months’ probation. The sole issue on appeal is whether defendant was proven guilty beyond a reasonable doubt.

Chicago Police Officer Louis Brown testified that, on December 3, 1973, he responded to a call that shots were being fired in an apartment at 4947 South Federal, Chicago. Upon his arrival he met defendant at the elevator. They had a conversation and defendant then handed him a .22-caliber revolver which she took from her “left coat pocket.” Then he and defendant went upstairs and he spoke to defendant and her husband, Claude Smith. Brown testified, without objection, that he “found out” that defendant had no reason to have the gun in her possession so she was charged with the unlawful use of a weapon and Smith was charged with discharging a weapon. The witness did not see Smith fire any weapon. On cross-examination, Brown said that when defendant gave him the revolver she was in the building elevator.

Defendant testified that she was the wife of Claude Smith. She was in her apartment when she was arrested but she was in the elevator when she handed the revolver to the police officer. Defendant said she had a State identification card. Defendant’s Exhibit 1 was identified as a Firearm Owner’s Card issued by the Illinois Department of Law Enforcement. On cross-examination, defendant testified that before she handed the gun to the police officer it was in her “right dress pocket.”

Defendant argues that necessity required her to have the weapon in her pocket and to avoid a greater injury it was necessary for her to disarm her husband. Section 7 — 13 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 7—13) provides:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than tire injury which might reasonably result from his own conduct.”

This affirmative defense was not raised in the trial court in any manner. It may not be raised for the first time in a court of review. People v. Howell, 60 Ill.2d 117, 120, 121, 324 N.E.2d 403; People v. McAdrian, 52 Ill.2d 250, 253, 254, 287 N.E.2d 688; People v. Studdard, 51 Ill.2d 190, 198, 281 N.E.2d 678; People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.

However, even if the point had been properly urged in tire trial court, it would not assist defendant because the record is completely bare of evidence to support it. The officer testified that defendant told him her husband had shot a hole in the wall. The trial court sustained defendant’s objection to this testimony and ordered it stricken. Further, Smith was found not guilty of discharging a weapon. Even if the officer’s stricken testimony be considered, the fact that defendant asserted that her husband had discharged the weapon is not, by itself, sufficient to raise the issue of necessity. There is no other evidence showing how or why defendant had the gun concealed in her pocket while she was in the elevator and corridor of the apartment building where she lived.

Neither the events nor the motives upon which defendant now seeks by argument in this court to predicate the defense of necessity appear in the record. The police officer testified without objection that he “found out” that defendant had “no reason to have the gun and have it on [sic] her possession * * Defendant, by her own testimony and otherwise, has not made even a prima facie showing of necessity to carry the weapon concealed in her pocket while walking through the corridor and while in the elevator of the building. (People v. Ballard, 59 Ill.2d 580, 585, 322 N.E.2d 473. See also People v. Warlick, 13 Ill.App.3d 276, 300 N.E.2d 834 (abstract opinion), leave to appeal denied, 54 Ill.2d 599.) Hiere, defendant testified that he wrestled with and disarmed a person holding a revolver because he was afraid the weapon would be discharged and hurt someone. This court held that this evidence did not make even a prima facie case of necessity to conceal the weapon. Compare People v. Lampkim, 28 Ill.App.3d 246, 328 N.E.2d 100, where this court affirmed rejection of the defense of necessity by the trial court under far stronger testimony supported by a degree of corroboration.

Defendant also argues here that she did not intend to conceal the weapon but that the only logical inference to be drawn from her conduct was that she took the weapon from her husband and gave it to Officer Brown for safekeeping and that such conduct does not violate the language or the intent of the pertinent statute.

The statute provides (Ill. Rev. Stat. 1973, ch. 38, par. 24—1):

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm.”

The statutory exception, concealment of the weapon “on his land or in his own abode” is not applicable here. In People v. Williams, 15 Ill.App.3d 823, 305 N.E.2d 186, defendant was found guilty under the same statute for carrying a concealed weapon in the hallway of the building in which she lived. Public areas in an apartment building to which tenants and invitees have access are not the “abode” of any tenant. See White v. United States (D.C. App. 1971), 283 A.2d 21, 23, 24, 57 A. L. R. 3d 934, 957, and cases therein cited.

As regards intent, the only intent required to be shown to sustain a conviction for carrying a concealed weapon is that defendant intended to place the weapon in its place of concealment. In People v. Foster, 32 Ill.App.2d 462, 178 N.E.2d 402, leave to appeal denied, 23 Ill.2d 623, defendant was found guilty of carrying a concealed weapon which he had kept in a zipper bag upon the front seat of his car. On appeal he raised the point that the People had failed to prove his intention to conceal the weapon. This court rejected that contention and held (32 Ill.App.2d 462, 468, 469):

“The only intent required to be shown to sustain a conviction for violation of this statute is that the defendant intended to place the weapon where it was placed. This was shown, as the defendant testified that he knew the gun was in the car. There is nothing requiring a showing that the defendant placed the gun in the bag specifically intending to conceal it in violation of the statute. This is not the type of crime requiring a specific intent, but rather it is a police power type of statute similar to the statute in People v. Fernow, 286 Ill. 627, 122 N.E. 155. That case involved a statute prohibiting any person from possessing a motor vehicle from which the serial numbers had been removed. In sustaining the conviction under the statute the court dealt with the question of intent and concluded, ‘At common law a crime consisted of an unlawful act with evil intent, and in crimes created by statute a specific intent may be required so that the intent and act may constitute the crime, and in such cases the intent must be alleged and proved.
Where a specific intent is not an element of the crime it is not always necessary that a criminal intent should exist. In the exercise of the police power for the protection of the public the performance of a specified act may constitute the crime regardless of either knowledge or intent, both of which are immaterial on the question of guilt. For the effective protection of the public the burden is placed upon the individual of ascertaining at his peril whether his. act is prohibited by criminal statute.’ We believe the statute involved here is similar in that it does not require the proof of any specific intent to conceal the weapon, and the instructions given correctly set this out.”

In addition to People v. Fernoto, 286 Ill. 627, 122 N.E. 155, we find the same principle of law in People v. Player, 377 Ill. 417, 36 N.E.2d 729, involving the criminal offense of failing to file monthly returns under the Illinois Occupational Tax Act and in People v. Walker, 18 Ill.App.3d 351, 309 N.E.2d 716, involving a conviction for leaving the scene of an accident. In the case before us, the requisite intent was proved by defendant’s own statement that she had carried a weapon concealed in her pocket from her apartment to the place in a public building corridor where she surrendered it to the police officer. Defendant’s motives or her ultimate aims or plans for disposition of the weapon have no materiality here. It should also be noted that exercise of the police power by regulation of the use of weapons is a fundamental essential in our society today and its administration should be in complete accord with the letter of the law without deviation or abatement of any kind.

The trial court saw and heard these witnesses. Upon examination of the record, we cannot conclude that the evidence is so unsatisfactory as to raise a reasonable doubt of guilt and therefore the finding by the trial judge will not be disturbed. (People v. Reese, 54 Ill.2d 51, 59, 294 N.E.2d 288.) The judgment appealed from is accordingly affirmed.

Judgment affirmed.

BURKE, P. J., concurs.