Appeal from the Municipal Court of Chicago, Third Municipal
District; the Hon. HERBERT STOFFELS, Judge, presiding. Judgment
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
The defendant appeals from four convictions in which he was charged as follows:
1. Unlawful use of weapons in that he knowingly carried concealed, about his person, a .45 caliber automatic pistol while not on his land or abode, or in his fixed place of business, in violation of Ch 38, Sec 24-1(a)(4), Ill Rev Stats (1963).
2. Unlawful use of weapons in that he knowingly carried on his person a tear gas gun projector, in violation of Ch 38, Sec 24-1(a)(3), Ill Rev Stats (1963).
3. Falsely representing himself to be a public officer, knowing such was not the case, in violation of Ch 38, Sec 32-5, Ill Rev Stats (1963).
4. Resisting a police officer, in that he knowing the complainant to be a police officer legally authorized to perform his official duties did knowingly resist arrest, in violation of Ch 38, Sec 31-1, Ill Rev Stats (1963).
The four cases were consolidated on motion of the defendant. He pleaded not guilty to each charge and waived trial by jury. The trial judge found him guilty, sentenced him to 30 days in the County Jail of Cook County and fined him $100 on each charge. All of the sentences were to be concurrent.
Initially, we shall consider defendant's contentions with respect to the first two charges. He claimed that under the circumstances here he was exempt from prosecution for unlawful use of weapons. Defendant's motions to dismiss were overruled by the trial court. He relies solely upon the Statute to support his position. Chapter 38, section 24-2 (a) sets forth specific exemptions to section 24-1 (a) (3) and 24-1 (a) (4) and provides as follows:
"a. Subsections 24-1 (a) (3) and 24-1 (a) (4) shall not apply to or affect any of the following: . . . (4) . . . watchmen, while actually engaged in the performance of the duties of their employment . . ."
There is evidence in the record that the defendant wore a blue uniform with a shoulder patch; the words on the patch were "M. Susson Police"; and he was employed by Morris Susson, a general contractor. His duties consisted of patrolling, protecting and safeguarding Mr. Susson's property. His arrest occurred at a construction site of his employer. The arresting officer, John Sbarbaro, testified that "there was no confusion in my mind who he (defendant) was. He was part of the Susson patrol, a watchman over there."
There is no evidence that the defendant was not a watchman, that he was not an employee of M. Susson and that he was not on Mr. Susson's property and engaged in the performance of his duties at the time of his arrest.
The State argues that the burden of establishing an affirmative defense is on the defendant. This clearly negates a large body of case law and directly contravenes the provisions of chapter 38, section 3-2 which states:
"(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 of proving the defendant guilty is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue ...