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People v. Musselman

APRIL 11, 1966.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PAUL H. MUSSELMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. CARL W. McGEHEE, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 21, 1966.

In a complaint defendant was charged with the statutory offense of "unlawful use of weapons." In a bench trial he was found guilty as charged and was fined $200 and costs. The fine and costs were suspended and his "gun confiscated."

The complaint alleged that on or about November 24, 1964, at Burger King parking lot, 180th and Halsted, Glenwood, Illinois, Cook County, defendant "knowingly carried and possessed a dangerous or deadly weapon (J.C. Higgins 22 cal. rifle), with intent to use the said weapon unlawfully against another," in violation of Chapter 38, Section 24-1(2), Illinois Revised Statutes. This section provides:

"Unlawful Use of Weapons.] (a) A person commits the offense of unlawful use of weapons when he knowingly: . . . (2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto or any other dangerous or deadly weapon or instrument of like character; . . . ."

On appeal, defendant contends that "the judgment of the court is contrary to the evidence inasmuch as the State failed to prove beyond a reasonable doubt that defendant had the requisite state of mind (intent) to commit the crime charged."

A police officer, the only witness for the State, testified that on November 24, 1964, at approximately 10:00 p.m., he saw the defendant "in a kneeling position with a '22 rifle with a telescope sight aiming directly at a group of people at the Burger King Restaurant at 185th and Halsted Street. . . . There was a line there and he had the weapon pointed directly at the line" — people "waiting to be served."

The officer further testified that the defendant was approximately 50 to 75 feet from the restaurant when he was pointing his rifle, and after he was arrested, defendant told him he was with a lot of people, although the officer saw no one else there at the time.

On cross-examination, the officer testified that he did not ascertain "whether the weapon was loaded at the time it was pointed," and as far as he knew, "it was not loaded." No ammunition was found in the weapon after the arrest.

Defendant testified, "We were going hunting the next day and they have a shot gun too which isn't present and I had those over there. I hadn't fired the 22 in over a year. I was looking at it and looking through the chamber as far as firing. As far as a line, I didn't see any line. There's a little thing on top of the building which I was aiming at." He denied that he was aiming at any people or personnel. He volunteered a statement, "Your honor, he keeps saying I pointed it at a line of people. No one can say I was pointing at a line of people. No one looked down the sight with me. . . . I can't recall whether a line was there. I am there every night. It is just a meeting place."

Defendant argues, "all that the State has proved directly is that the Defendant pointed an empty rifle at a restaurant seventy-five feet away from him." Defendant asserts that the statute requires proof of the specific intent to use the weapon unlawfully against another, and intent must be proved in order to obtain a conviction. Cited in support is section 4-4 of the new Criminal Code, which defines "intent" as follows:

"A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct."

Cases cited include People v. Fernow, 286 Ill. 627, 122 N.E. 155 (1919), and People v. Murff, 29 Ill.2d 303, 194 N.E.2d 226 (1963).

Defendant further argues "that the means employed by defendant would not result in any unlawful use of the weapon against other persons; he could not shoot them, the gun was not loaded, he could not strike them, he was too far away, he did not assault anyone, because there is no testimony demonstrating that he did. Clearly, the State must prove his guilt, he need not prove his innocence. The defendant's only conscious objective, from the ...


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