dissenting:
I disagree with the assertion of the majority that the sole issue is whether defendant Carol Wilson was proved guilty beyond a reasonable doubt. There are other compelling reasons for reversing Mrs. Wilson’s conviction and remanding the case for a new trial. One is that Mrs. Wilson was denied the effective assistance of counsel because she and her husband were tried together and represented by the same court-appointed public defender although they had inconsistent defenses. The second reason for reversal is that the State’s evidence raised the defense of necessity, but the public defender failed to urge it upon the court and the trial judge did not decide, as he should have, whether the State proved Mrs. Wilson guilty beyond a reasonable doubt on the issue of necessity.
Mrs. Wilson was charged with carrying a concealed weapon and her husband with discharging the weapon. The only witnesses were Police Officer Brown, the arresting officer, for the State, and Mrs. Wilson, who testified in her own behalf.
Officer Brown testified that he responded to a call of shots being fired in an apartment in the building where Mrs. Wilson lived. When he arrived in the building, he met Mrs. Wilson who had just reached the ground floor in the building elevator. She told him that her husband shot a hole in the wall of their apartment with a gun, took the gun out of the pocket of her dress and handed it to him, and he tiren arrested her.
Since her husband was not present at the conversation, the public defender objected on the ground of hearsay to Officer Brown’s testimony about his conversation with Mrs. Wilson in which she told him what her husband had done. The objection was sustained and the testimony excluded. Tire officer next testified he did not see the husband fire the weapon and the husband was then discharged.
The public defender’s interrogation of Mrs. Wilson was confined to showing she was in possession of the gun only while in her apartment and in the hallways and elevator of the building. The testimony was offered by the public defender to support the only defense he presented on Mrs. Wilson’s behalf which was that the hallways and elevator of the apartment building were part of Mrs. Wilson’s abode, and she was, therefore, exempt by the provision of section 24—1(a)(4) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 24—1(a) (4) ),1 permitting the carrying of a weapon in one’s abode. As the majority opinion correctly points out, the interpretation which has been given to the statute does not recognize hallways and elevators of an apartment building as part of a tenant’s abode, so this defense was properly rejected.
The only defense available to Mrs. Wilson was the affirmative defense of necessity.2 On appeal, Mrs. Wilson argues that this defense was raised by Officer Brown’s testimony that Mrs. Wilson told him her husband fired the gun. No evidence was presented by the public defender on the defense of necessity.
The defense of necessity required evidence showing that Mrs. Wilson’s husband fired shots in their apartment and that to prevent him from continuing to fire the gun, she took it from him and left the apartment with the gun in her possession. To win acquittal for the husband, it was necessary for the public defender to keep such evidence out of the record. Mrs. Wilson’s defense was antagonistic to that of her husband, and they should have been represented by separate counsel. The public defender’s hearsay objection to Officer Brown’s testimony demonstrates why it was inappropriate for the two defendants to be represented by the same counsel. Although hearsay when offered against her husband, the testimony was admissible as to Mrs. Wilson. Since it provided her only valid defense, counsel protecting Mrs. Wilson alone would not have moved to exclude it. By failing to provide her with separate counsel, the State deprived Mrs. Wilson of the effective assistance of counsel guaranteed by the sixth amendment. Although the need for separate counsel was not raised either at the trial or on this appeal, the facts demonstrate the deprivation of a substantial constitutional right; this court should note this defect under Supreme Court Rule 615(a).3
Glasser v. United States (1942), 315 U.S. 60, is instructive in appraising the adequacy of Mrs. Wilson’s legal representation. The Court concluded that Glasser was denied effective assistance of counsel when the attorney he employed was appointed by the trial judge to represent Glasser’s co-defendant in addition to Glasser. The codefendant had a defense inconsistent with Glasser’s, and Glasser complained on appeal that the attorney failed to object to testimony which was hearsay as to him but helpful to his co-defendant. In reversing Glasser’s conviction, the Court said:
“Even as we have held that the right to the assistance of counsel is so fundamental that the denial by a state court of a reasonable time to allow the selection of counsel of one’s own choosing, and the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment, Powell v. Alabama, 287 U.S. 45, so are we clear that the ‘assistance of counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.” 315 U.S. 60, 70.
Glasser pointed out the possibility of inconsistent defenses to the trial court and then stood silent as the trial judge proceeded to appoint his lawyer to represent his codefendant. The Court held that this silence did not constitute free acquiescence in the appointment in the face of the duty of the trial court to preserve the fundamental rights of the accused, and that Glasser, an experienced assistant United States attorney, did not waive a right known to him by failing to press the issue in tire trial court. Accordingly, it cannot be argued that Mrs. Wilson waived a similar right when she was obviously unaware of the legal subtleties giving rise to conflicting defenses between herself and her husband.4
The second reason for reversal is that the State itself placed the affirmative defense of necessity in evidence by Officer Brown’s testimony that the husband shot a hole in the apartment wall, but then failed to prove beyond a reasonable doubt that this defense was not valid. Since Officer Brown’s testimony was not hearsay as to Mrs. Wilson, there was no justification for striking it with regard to her, and it should be regarded as preserved in the record as to Mrs. Wilson.
If this testimony is preserved, the evidence, all offered by the State, shows that Mrs. Wilson’s husband fired the shots. Within the time it took a police officer to respond to the call that shots were being fired, presumably a few minutes, Mrs. Wilson obtained possession of the gun her husband had used, placed it in her pocket, left the apartment and descended in the building elevator to the ground floor. When the elevator door opened, she saw Officer Brown, explained what had happened upstairs, voluntarily removed the gun from her pocket, and handed it to him. It is true, as the majority opinion points out, that the record is barren of specific testimony as to what happened to the gun between the time Mrs. Wilson’s husband fired it and she placed it in her pocket. However, the inference that can be drawn from the record is that Mrs. Wilson took the gun away from her husband to prevent him from continuing to fire it, and this inference is sufficient to raise the affirmative defense of necessity. (Ill. Rev. Stat. 1973, ch. 38, § 7—13.) Although the evidence raised this affirmative defense, the trial judge never determined whether the State met its statutory burden of proving Mrs. Wilson guilty beyond a reasonable doubt as to the issue of necessity as the statutes require. (Ill. Rev. Stat. 1973, ch. 38, § 3—2; Ill. Rev. Stat. 1973, ch. 38, § 7—14.) 5 Reversal is required so that the court can make that determination in a new trial.
The majority opinion concludes that tire following testimony of Officer Erown defeats Mrs. Wilsons defense of necessity:
"Mr. Solganick [assistant State’s Attorney]: Q. And officer, what if anything, happened after the defendant, Carol Wilson handed you this weapon?
A. Well, we then went upstairs and talked to her and her husband and about the problem and found out that the lady did have no reason to have the gun and have it on her possession and charged her with the gun charges and him with the discharging the weapon.”
The testimony that Mrs. Wilson had no reason to have the gun is a conclusion lacking in evidentiary value; even though it was not objected to or stricken, it must be ignored since it amounts to nothing more than Officer Erown’s view on the ultimate issue in the case which was to be decided by the court and not by the police officer.
None of the causes (People v. Ballard (1975), 59 Ill.2d 580, 585, 322 N.E.2d 473; People v. Warlick (1973), 13 Ill.App.3d 276, 300 N.E.2d 834 and People v. Lampkins (1975), 28 Ill.App.3d 246, 328 N.E.2d 100) which the majority opinion relies on are relevant to the defense of necessity as it is raised in this case. No gun was discharged in any of them and the defense of necessity was predicated solely on the fear, belief or impression of the defendants in those cases that someone might get hurt or might fire a weapon. The situation which confronted Mrs. Wilson and on which she acted was that her husband had already fired the gun. In affirming Lampkins, the court concluded that the trial judge did not choose to believe the defendant’s explanation for having a gun in his possession. In this case, the trial judge did not pass upon Mrs. Wilson’s explanation because the record shows the only issue the trial court considered with respect to Mrs. Wilson’s innocence or guilt was whether the common hallways and elevator of an apartment building are part of a person’s ’own abode” as that term is used in section 24 — 1(a)(4) (Ill. Rev. Stat. 1973, ch. 38, § 24 — 1(a)(4)). In addition, in none of these cases did the defendant approach a police officer, hand him the weapon and voluntarily surrender it as Mrs. Wilson did. In those cases the arresting police officer observed the gun sticking out of the defendant’s pocket or tucked inside his belt and then placed the defendant under arrest.
This case should be reversed and remanded so that Mrs. Wilson has the opportunity to present fully her defense of necessity in a trial in which she is represented by counsel whose efforts are concentrated solely on her defense undiverted by the simultaneous defense of her husband and the court has the opportunity to decide whether the State’s evidence proves Mrs. Wilson guilty beyond a reasonable doubt as to the issue of necessity.
The statute is set forth in the majority opinion.
This defense is set forth in section 7—13 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 7—13), quoted in the majority opinion.
Rule 615(a) provides: “(a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity, or variance which does not affected substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”
Also to be noted are the Ethical Considerations set forth under Canon 5 of the Code of Professional Responsibility adopted by the Chicago and Illinois Bar Associations effective May 1, 1970, which establish the impropriety of the same lawyer representing potentially differing interests. These Considerations provide (EC 5-1) that a lawyer should not permit his loyalty to his client to be diluted by the interests of other clients and that (EC 5-15):
“If a lawyer is requested to undertake or continue representation of multiple clients having potentially differing' interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing, in- litigation multiple .clients with potentially differing interests. * * *”
Section 3—2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 3—2) provides:
“Affirmative Defense, (a) ‘Affirmative defense’ means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.”