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People v. Benton

JUNE 18, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MITCHELL BENTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

The defendant, Mitchell Benton, was indicted for the unlawful use of a weapon in violation of Ill Rev Stats 1965, c 38, § 24-1(a)(7). After a non-jury trial he was found guilty and sentenced to a term of three to five years in the penitentiary.

At the time of his arrest on July 14, 1966, Benton was standing on a street corner holding a 12-ounce soft drink bottle which a companion was attempting to ignite. Two Chicago police officers, assigned to a major civil disorder on Chicago's west side, saw the men and approached them from the rear. There was an odor of gasoline in the immediate vicinity. Benton, startled by the officers, threw the bottle to the ground. The bottle was half-filled with a fluid that smelled like gasoline; a rag protruding from its neck was saturated with the fluid. Benton's hands smelled of gasoline. As he was arrested he exclaimed, "We almost got that wagon." He was referring to a police vehicle, occupied by seven policemen, parked across the street. A subsequent chemical analysis established that the fluid was gasoline.

No question is raised concerning the sufficiency of the evidence. The issue is whether the possession of a device such as Benton had in his hand — which is known as a Molotov cocktail — was a criminal offense in July 1966. The indictment alleged:

". . . that on July 14, 1966, . . . Mitchell Benton committed the offense of unlawful use of weapon, in that he, knowingly possessed and carried a bomb containing an explosive substance, to wit: a Molotov cocktail, in violation of Chapter 38, Section 24-1, (a) (7), of the Amended Illinois Statutes, 1965."

The defendant contends that the indictment was faulty in that it charged him with committing an offense which was not in violation of Illinois law. The State contends that the indictment charged an offense in conformity with the applicable statute. The difficulty arises from the fact that the 74th General Assembly passed three acts which amended the existent statute on the unlawful use of weapons. The defendant relies upon one, the State upon another.

At the time the 74th General Assembly convened, the law was as follows:

"(a) A person commits the offense of unlawful use of weapons when he knowingly:

"(7) Sells, manufactures, purchases, possesses or carries any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device." Ill Rev Stats, 1963, c 38, § 24-1, (a) (7).

The first of the acts (House Bill 146) amending this statute was passed in March 1965. The act amended subsections (1) and (7) of section 24-1(a). Subsection (7) was amended by the addition of the following words:

". . ., any shotgun with a barrel less than 18 inches in length, or any bomb, bombshell, grenade, bottle or other container containing an explosive substance, such as but not limited to black powder bombs and Molotov cocktails."

This is the amendment upon which the State relies and under which the defendant was indicted.

The second amendatory act (Senate Bill 454) was passed on June 8, 1965. This act amended subsection (2) of section 24-1(a). The act omitted the Molotov cocktail amendment to subsection (7) which had been adopted in March. The act repeated ...


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