specially concurring:
I agree with the majority that this case should be affirmed. However, I disagree with certain statements and conclusions contained in the majority opinion and feel compelled to comment thereon.
I note at the outset that the remarks and conclusions they make regarding the Illinois law on when a weapon is a “dangerous weapon” is dicta, unnecessary to the conclusion they reach. They treat the urffireable gun as a bludgeon, or at least indulge the jury’s so treating it, and affirm the conviction. Precedent calls for just such result. However, precedent does not call for, nor in my opinion does it justify, the conclusons regarding the “dangerous weapon” treatment by the Illinois cases.
The majority states, “Strictly speaking, then, the rule is not that any gun is a dangerous weapon 0 0 * as a matter of law. Illinois case law indicates that a gun is a dangerous weapon per se, unless it is shown that the particular weapon involved in the robbery was not dangerous or, in other words, that the law presumes that an object which has the outward appearance of a gun is dangerous (i.e., loaded and operable), but this presumption may be rebutted by proof that it is not. 000 Accordingly, we reject the State’s contention here that proof of the use of a firearm is, under all circumstances, sufficient evidence that defendant was armed with a dangerous weapon.”
I do not join with the majority in their rejection of the State’s contention for I believe it to be consistent with the Illinois law on the subject. In short, I would, and I believe Illinois does, apply a subjective standard in determining whether a weapon used in an armed robbery was a “dangerous weapon.” I accordingly disagree with the portions of the majority opinion which I quote above and the conclusions they draw in the language that intervenes.
The majority states that there has been a failure upon the part of the Illinois courts to decide whether a subjective or objective standard should be employed in determining whether a weapon is dangerous. I agree with them to the extent that no case in express terms has stated that a subjective standard is to be used, but it seems apparent from the cases that a subjective test has been used, save for the case of People v. Richards, 28 Ill. App. 3d 505, 328 N.E.2d 692.
The majority assert that they * ° reject the State’s contention here that proof of the use of a firearm is, under aU circumstances, sufficient evidence that defendant was armed with a dangerous weapon.” I would not categorically reject the State’s contention. While I would not want to go so far as to say that under all circumstances evidence that mere possession by a defendant of a firearm, be it operable or inoperable, is sufficient proof that he is armed with a dangerous weapon, I would say that such possession could, in all circumstances, constitute proof that defendant was armed with a dangerous weapon. In making the determination the focus should be not so much upon the firearm or the pseudo firearm itself, but upon the intention with which the alleged firearm, or other weapon, was used by the perpetrator and the belief such use instilled, or reasonably could have been expected to instill, in the victim.
Why, in determining whether the object is dangerous, focus on the object itself? The statute does not require it and the cases dealing with the matter have gone to great lengths to find weapons “dangerous” when such finding was in fact completely unsupported by the evidence. The majority cite cases in which a weapon was found to be “dangerous” when it was not produced at trial, or, indeed, even displayed to the victim. What the courts have done in these cases is follow a subjective standard, they have looked to the effect intended to be produced, and in fact produced, upon the robbery victim by the use of an alleged weapon.
By the very act of using and pointing an object similar to a firearm the accused represents it to be an operable firearm. One looking into the barrel of a gun will be strongly inclined to accept it for what it appears to be. As we stated in People v. Halley, 131 Ill. App. 2d 1070, 1073, 268 N.E.2d 449: “It is not unusual for one viewing a gun from the muzzle end to be unsure of the presence of a firing pin, bullets and an open barrel or its firing capabilities. Much sorry experience has taught members of our society to be inclined to accept such ‘objects’ for what they appear to be and what they are represented to be, firearms.”
The fear instilled in the victim brings him into subjection, not the actuality of the object as a dangerous weapon. We are essentially dealing with intent, motivation and effect. Whether the firearm used is operable or not would have no bearing on those motifs. When we consider the effect of the use of an objective standard upon the evil sought to be corrected (the use of weapons in a robbery) we find that the evil result remains (a terrorized victim) and the deterrence factor is eliminated.
An examination of the Illinois cases dealing with the subject of what constitutes a dangerous weapon that will sustain the aggravated charge of armed robbery leads to the conclusion that Illinois courts have in practice, if not expressly, adopted and followed a subjective standard. That is, the question of whether a weapon is dangerous is determined by looking to the effect the weapon had on the victim. Such treatment is not contrary to the teaching of the Dwyer case.
Following the statement of the Dwyer case the majority cites People v. Patrick; People v. Mentola; People v. Emerling; People v. Moore; and People v. Harrison for the statement that many convictions for armed robbery ensue without requiring either production of the firearm or proof that it was loaded. Their conclusion is, of course, correct, and is explainable solely upon the grounds that the courts in those cases followed a subjective standard in determining whether the weapons involved were dangerous.
In those cases the proof that defendant was armed with a dangerous weapon consisted solely of the victims’ testimony that the assailant had a gun or a knife. There was no requirement of proof that the weapons were dangerous in fact; it was presumed that they were. In the Emerling case it was stated that a sawed-off shotgun or a revolver is per se a dangerous weapon, citing People v. Dwyer. In People v. Harrison no weapon was ever seen by the victim. Proof that the defendant used a dangerous weapon consisted solely of the victim’s testimony that defendant placed a cold metallic object against his neck.
The majority assert that Illinois courts have been reluctant to apply the per se dangerous rule with full vigor when faced with evidence that the “dangerous weapon” used in an armed robbery was, in fact, unloaded or otherwise inoperable. I disagree with this statement and contend that the cases show an easy willingness on the part of the Illinois courts to find any weapon used, no matter what its condition or manner of use, to be dangerous. The sole requirement seems to be that whatever object was brandished or used was intended to and did in fact subdue the victim. That is only to say that a subjective standard has been applied. In the Trice case .22 caliber starter pistols, incapable of firing a projectile, were found to be dangerous because they were capable of causing flesh bums. In the Ratliff case a .22 caliber pistol designed to fire blanks was found to be dangerous because it could be used as a bludgeon. The court noted that the starter pistol in the Trice case and the pistol (without proof of its being loaded) in the Dwyer case were used to threaten the victim. In the Webber case, cited by the majority, the court did say that “[w] ithout proof (by the defendants) which would more clearly show that the gun was not capable of being used as a dangerous weapon * * * the defendants have not overcome the legal conclusion that the shotgun was a dangerous weapon per se,” citing People v. Emerling. Later in the opinion, however, the Webber court noted that the barrel of the unloaded shotgun was at times placed as close as one foot away from the victim. They found the evidence sufficient to support the finding of the trial judge’s determination that the shotgun was clearly capable of being used to inflict injury even if it were not loaded.
A comparatively recent supreme court case that serves as an exemplar of the attitude of the Illinois courts towards the “dangerous weapon” aspect of armed robbery, and which I believe shows the use of a subjective test, is People v. Elam, 50 Ill. 2d 214, 278 N.E.2d 76. In that case the defendant boarded a bus and stood next to the driver fumbling through his pockets. He finally dropped his hand behind the driver’s back and said: “This is a small gun but it will blow your back out.” Defendant was given money and he left the bus but was arrested a short time later and a knife with a three-inch blade was found on his person. Defendant argued at his trial that all the elements of armed robbery had not been proved because no gun was found on him nor introduced at trial. The conviction was affirmed, the court stating:
“In this case, McGarrity, the victim of the robbery, was told by his assailant, and believed, that a small gun was pointed at his back. The defendant was apprehended within minutes after the robbery, and a knife was found on his person. Under these circumstances, we reject the argument that the defendant was not armed with a dangerous weapon, even though it could not be seen.” (Emphasis added.) People v. Elam, 50 Ill. 2d 214, 220.
As noted above, the case of People v. Richards is the only Illinois case I have discovered which reversed an armed robbery conviction on the grounds that the firearm (a sawed-off .22 rifle) was inoperable and therefore not a dangerous weapon. The court did not consider the possibility that the sawed-off rifle could be used as a bludgeon as had been done in other cases. There was no question in Richards that the brandished object was capable of intimidating since it was successfully used in the robbery. Absent the use of the object there probably would have been no robbery at all since the girl could hardly take property from the husband and wife “by the use of force or by threatening the imminent use of force.” The Richards case could well have been concluded the same as the case under consideration and the other cases which treated inoperable weapons as bludgeons. The jury in Richards determined that the inoperable sawed-off rifle was a dangerous weapon and such determination should have been conclusive. People v. Webber; People v. Trice; People v. Dwyer.
We thus see that the Illinois cases which have considered the question of what constitutes a “dangerous weapon” that will serve as grounds for the aggravated charge of armed robbery have gone to great lengths to find that any object brandished or used as a weapon has been found to be “dangerous” where by its use the assailant succeeded in subduing his victim. This result has followed where the gun, knife or other weapon was not produced at trial, where there was no proof offered to show a gun was loaded or capable of being fired, where the use made of the firearm or other weapon was in a manner other than that for which it was intended, and, in the ultimate reach of the process, where the victim never even saw or felt the weapon used. The picture painted by the cases is clear. If the victim subjectively and reasonably determines that the assailant is possessed of a dangerous weapon and is subdued to the will of the assailant and suffers his property to be taken, then the weapon is, as a matter of law, dangerous within the perview of the armed robbery statute.
At the risk of undue length, I would make one further comment on the majority opinion. In a footnote they state that it is constitutionally suspect to shift to the defendant the burden of proving that his weapon is not dangerous. I adhere to the belief above expressed that whether the weapon was dangerous in fact is immaterial but nevertheless disagree that it is constitutionally improper to place upon defendant the burden of proof that his weapon is inoperable.
The Supreme Court has recently spoken on this question in Patterson v. New York,_U.S__,_, 53 L. Ed. 281, 292, 97 S. Ct. 2319, 2327:
“We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.”
In that same case, in a footnote, the court stated:
‘The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, secs. 2486, 2512 and cases cited.’ ” (_U.S_, _, 53 L. Ed. 2d 281, 288, 97 S. Ct. 2319, 2323 n. 9.)
Also see Leland v. Oregon, 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002.
In 22A C.J.S. Criminal Law §571 (1961) it is stated:
“Where the subject matter of a negative averment in the indictment, or a fact relied on by accused as a justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, the general rule is that the burden of proof as to such averment or fact is on him.”
Among the citations of authority are People v. Handzik, 410 Ill. 295, 102 N.E.2d 340 and People v. Wilson, 375 Ill. 506, 31 N.E.2d 959. Also see People v. Williams, 40 Ill. 2d 522, 240 N.E.2d 645; People v. Hammond, 1 Ill. 2d 65, 115 N.E.2d 331.
In People v. Halley we discussed several cases where the burden of proof in criminal prosecutions was shifted to the defendant. Placing the burden of proof that a weapon possessed by him is inoperable is well within the parameters drawn by these cases.