Appeal from the Circuit Court of Cook County; the Hon. RUDOLPH
JANEGA, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Defendant, Rhenette Cosby, was found guilty in a bench trial of unlawful use of weapons and fined $50, having been charged with the violation of the Illinois Criminal Code of 1967, chapter 38, section 24-1(a)(4) which provides:
"(a) A person commits the offense of unlawful use of weapons when he knowingly: . . . . (4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm. . . ."
On appeal the defendant contends: (1) That he was not proven guilty beyond all reasonable doubt; (2) That he cannot be convicted of unlawful use of weapons when the weapon is not concealed and when it is found in defendant's fixed place of business; and (3) That the trial court committed prejudicial error when defendant was convicted of a crime for which he was not charged.
Defendant, a cab driver, was working for Hill Cab Company. The arresting officer observed the cab backing on Blackstone Street through an intersection at Marquette Rd., and stopped it at 6630 Blackstone Street in the City of Chicago. The driver had a valid driver's license and his Vehicle Identification Number was in order. The second officer, while looking in the front seat of the cab, saw something protruding from underneath a leather coat or jacket belonging to the defendant, which appeared to the officer to be the butt end of a gun. The officer testified that he observed about a 1/4" x 2 1/2" of the butt end of a gun. The defendant was then arrested and charged with unlawful use of weapons and failing to register a firearm within ten days of purchase.
At the trial defendant moved to suppress the evidence, which motion was denied. The trial court found defendant guilty of unlawful use of weapons and fined him $50, but dismissed the defendant as to failing to register the firearm.
Appellant contends that the weapon was not concealed. In support of this contention he cites People v. Niemoth, 322 Ill. 51, 152 N.E. 537 (1926), which is inapplicable. In Niemoth, the arresting officer noticed an automobile parked alongside the curb. Niemoth was sitting in the front seat behind the steering wheel. The guns were found on the floor of his car in back of the front seat. The court 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."
Defendant also relies on People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950). In Liss defendant drove through a red light. The arresting officer found a gun beneath the front seat of the car, at about the middle thereof, six inches under the seat. The distance between the floor board and the bottom of the seat was about three inches. The court in Liss said:
"It is not sufficient to come under this statute that a defendant be in possession of a deadly weapon, but the weapon must be concealed and be readily available for use."
The court further said, at page 424:
"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."
It might be noted herein that although the Liss case does not apply to the instant case, there was a strong dissent of two of the justices of the Illinois Supreme Court.
In People v. Gant, 84 Ill. App.2d 208, 228 N.E.2d 582 (1967) defendant was arrested while riding with another man in the back seat of a cab. One of the arresting officers heard a thud from inside the cab. This officer on cross-examination contradicted his earlier statement and testified that he did not recall if the gun was in the defendant's hand or whether he had only heard it drop to the floor. The defendant ...