WRIT OF ERROR to the Third Division of the Appellate Court for
the First District; heard in that court on writ of error to the
Municipal Court of Chicago; the Hon. HAROLD P. O'CONNELL, Judge,
MR. JUSTICE GUNN DELIVERED THE OPINION OF THE COURT:
Plaintiff in error, Walter Liss, hereafter referred to as defendant, was tried in the municipal court of Chicago upon an information charging that he unlawfully carried concealed on or about his person an automatic pistol, in violation of paragraph 155 of chapter 38 of the Illinois Revised Statutes. Upon a plea of not guilty he was tried by the court without a jury, and was found guilty, and sentenced to serve six months in the house of correction. On review, the Appellate Court for the First District affirmed the judgment. The defendant prosecutes this writ of error to reverse the judgment on the ground that the evidence was insufficient to support the conviction; that there was unsatisfactory proof that the pistol was readily accessible; that there was no proof that it belonged to him, or that he had knowledge of its existence in the car; and that, under the admitted facts disclosed by the evidence, the statute was not violated.
A police officer was the only witness for the People. He testified that on February 28, 1949, at about midnight, he observed an automobile drive through a red-light signal on the streets of Chicago, and that he pursued the automobile, and, after forcing it to the curb, found therein the defendant and one William Wilczynski, both occupying the front seat. The officer testified he searched the defendant and his companion and the automobile, and found what is described as a German Luger automatic pistol beneath the front seat of the car, at about the middle thereof, six inches back under the seat. The distance between the floor board and the bottom of the seat was about three inches.
The defendant testified that he had borrowed the car, that he never had seen the gun, did not own it, and did not put it under the front seat of the car, and never saw anybody put it under the front seat of the car. His companion testified that it was not his gun; that he did not place the pistol under the front seat, nor did he see it placed there. No testimony was offered by the People as to the ownership of the automobile, or in rebuttal of the testimony of the defendant and his companion.
Section 4 of an act revising the law relating to deadly weapons, (Ill. Rev. Stat. 1949, chap. 38, par. 155,) provides: "No person shall carry concealed on or about his person a pistol, revolver or other firearm." The statute makes certain exceptions, which are not involved here, and it is not claimed that the prosecution is brought under the last part of this section, which prohibits the carrying of any firearm with intent to use the same in the commission of a crime, or by any person who habitually associates with thieves, or other criminals. The information simply charges that the defendant unlawfully did carry concealed on or about his person an automatic pistol.
The defendant relies upon People v. Niemoth, 322 Ill. 51. In that case the defendant had in the back of the car upon the floor some loaded revolvers, and was charged with the identical offense before us in the instant case. In that case the court held that before there could be a conviction under this statute of carrying firearms concealed on or about the person there must be proof that the firearm is carried in such a manner as to give no notice of its presence and in such proximity as to be within easy reach and control, and said: "The proof in this case does not show that the guns lying on the floor of the automobile were where the accused could have reached them without moving from his position in the front seat. There was no proof that the guns belonged to the accused or that he knew they were in the automobile." The conviction was reversed without remanding.
In the present case the testimony of the officer, which is not disputed, shows that the pistol was lying under the front seat about the middle of the car, six inches back under the seat, in a space three inches wide. The defendant was driving the car. Here, the proof fails to show that the pistol lying under the seat was readily available without moving from his position on the seat. It would have been just as impossible for him to reach down and under the seat, without changing his position, as it would have been in the Niemoth case, where it was held that this was one of the essentials of the crime. It is not sufficient to come under this statute that a defendant be in the possession of a deadly weapon, but the weapon must be concealed and be readily available for use. The proof in this case simply shows the pistol was lying on the floor under the seat, which was elevated some distance from the floor. It seems to us that when the statute prohibits the concealing of a weapon "on or about the person" it means the weapon must be actually concealed on the person, or in such close proximity that it can be readily used as though on the person. This is the clear purport of the Niemoth case.
The defendant testified he did not own the car; that he had borrowed it; that he did not know the pistol was there. His companion corroborated him in the fact he did not own the pistol, and did not know it was there, and none of these statements are disputed by the People. The ownership of the car could have been readily determined from the license number on it, and if the defendant was committing perjury it was a matter that could have been clearly established by the State. The testimony of a defendant cannot be disregarded merely because he is the defendant, and in the present case there is no effort made to establish any of his statements to have been false.
In a similar case, where the same charge was made, two pistols were found in the pocket or compartment on the dash of the automobile in which the defendant was riding. In that case the defendant denied the ownership of the guns, or knowledge that they were in the car, and there was no contradiction of that testimony. He likewise denied the ownership of the car. In commenting upon the insufficiency of the evidence to support a conviction the court said: "There is no evidence that the guns were in the possession of this plaintiff in error. He did not own the car. He testified he did not know the guns were in the compartment and there is no denial of that fact. This case should have been dismissed on the evidence." (People v. Henneman, 367 Ill. 151.) In the case of People v. Lake, 332 Ill. 617, the defendant was charged with the same offense, and the proof showed the pistol was found between the cushion and the back of the seat, immediately behind the defendant, who was driving the car. In reversing the conviction the court held that it was not justified under the decision in People v. Niemoth, 322 Ill. 51.
It is to be observed that in all three of these cases, in which convictions were procured for carrying concealed weapons on or about the person of the defendant, the cases were reversed without remanding orders. It seems to have been overlooked by counsel in the present case that the offense is not carrying deadly weapons, but carrying them concealed on or about the person. If a deadly weapon on the floor, in the back of the car where the defendant can reach down from where he sits, is not violative of the statute, how can the statute be violated by having a pistol on the floor near the front of the seat where it is impossible, without changing position to get his hand to where he could reach and use it? And, if a pistol stuck in the crevice between the seat cushions and the back of the seat immediately to the back of the driver is not violative of the statute, it is impossible to perceive how the present conviction can be affirmed.
We think a reasonable construction of this statute, as indicated in the Niemoth case, is that there must be concealment of the weapon, and it must be on or about the person; and it must be so placed that it may be used without appreciable change in the position of the owner. It requires no great wisdom to know it is impossible to reach a pistol under a front seat of a car without changing position at the wheel, and it is also necessary to bend forward to reach under the seat.
In this case the People have entirely overlooked the fact that the car is claimed to be borrowed, and, according to the evidence, neither the defendant nor his companion had any knowledge of the pistol being in the car. While ownership might not be necessary, at least knowledge that the gun was in the car is essential to establish the commission of the crime charged. The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed. This, of course, does not prevent the enactment of a law against carrying concealed weapons, but it does indicate it should be kept in mind, in the construction of a statute of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime, and not against use in the protection of person or property. There is not an iota of evidence that the defendant was a criminal, or had associated with criminals, or that he came within any of the specific provisions against carrying a deadly weapon.
While ordinarily we attach great weight to the judgment of the trial court, yet, where there is a total lack of evidence to support the conviction, or where the evidence leaves grave doubt as to guilt, it is our duty to set aside the conviction. We are of the opinion that the testimony of the sole witness for the People was insufficient to establish a crime and, further, since the proof shows that the defendant did not own the automobile and did not know of the pistol being therein, which testimony is not rebutted in any way, that the conviction was wholly unwarranted.
The judgments of the Appellate Court for the First District and of the municipal court of Chicago ...