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People v. Hutchins

JULY 20, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

SYLVESTER HUTCHINS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JOSEPH C. MOONEY, Judge, presiding. Affirmed as modified.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a bench trial defendant was found guilty of the offense of "unlawful use of weapons" in violation of chapter 38, § 24-1 (a) (1), Ill Rev Stats. Defendant was released on probation for the period of one year, with the first thirty days to be served in the Cook County House of Correction.

The determinative question presented on appeal is whether the object found in defendant's possession and admitted into evidence, without objection, as State's Exhibit 1, was a "bludgeon" within the meaning of the statute, which provides:

"24-1. § 24-1. Unlawful Use of Weapons.] (a) A person commits the offense of unlawful use of weapons when he knowingly:

"(1) Sells, manufactures, purchases, possesses or carries any bludgeon, blackjack, slungshot, sandclub, sandbag, metal knuckles or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife; or

"(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, or any other dangerous or deadly weapon or instrument of like character; . . . ."

Both sides stipulated to the following description of the object:

"Approximately forty inches long; made entirely of wood; approximately one pound; the handle is about three inches long; an inch in diameter at the bottom portion; one to two inches in diameter on one side and one to two inches in diameter on the other side; the handle is separated from the body by a series of half-inch pegs protruding from the object; there is a carved face of a goat below the pegs; the object is not straight, it is contorted in certain places; it looks like a cane from a tree limb; it looks worn at the end like a cane."

On February 11, 1969, the complaining witness, Officer Joseph Stehlik, was called to the Forrestville High School located at 4401 South St. Lawrence Avenue, Chicago, on a "disturbance" complaint. Officer Stehlik observed the defendant enter the school with an object in his hand, which Stehlik characterized as a "cane." The defendant was placed under arrest and then questioned as to why he was at the school. Over objection, Officer Stehlik testified that "he stated that his friend, Jeff Fort, may need some help — Jeff Fort being a member of the Blackstone Rangers." Defendant was holding the upper three inches of the object in his right hand, and it was pointed straight down with no part touching the ground. Defendant made no statement with respect to the object, and he told Officer Stehlik he was not a student at the school where he was arrested.

Defendant testified that he was twenty-one years of age, born in Arkansas and lived in Chicago since he was ten years old. The object was made for him at the Blackstone Youth Center at 67th and Blackstone. He used it for a walking cane and had it with him all the time. The symbol on it represented a goat. On cross-examination, defendant stated he suffered from no physical disability, and he was not a student at Forrestville.

In finding defendant guilty as charged, the court remarked, "Well, considering all of the evidence, I feel that the State has sustained its burden, and there will be a finding."

On appeal defendant contends the offense of "unlawful use of weapons" is not sustained by the record, and the State has failed to show convincing proof that the article in question was a bludgeon. Defendant asserts, "Proof of intent to use is not an ingredient of the crime charged against the defendant herein, as it is under Section 24-1(a) (2) of the Illinois Criminal Code. Mere possession of the prohibited instrument, known and voluntary, constitutes the offense. The reason for this classification is based upon the dangerous character of certain weapons and instruments, the mere possession of which is made unlawful. . . . A bludgeon is defined as `a short stick, with one end loaded, or thicker and heavier than the other, used as an offensive weapon; hence, any clublike weapon.' (Webster's New International Dictionary, 2d ed, 1960.) This description does not remotely fit the object possessed by the defendant. The description of the object fits the description of an ornamental cane."

Defendant also asserts, "The record is devoid of any testimony using the word `bludgeon.' The only mention of bludgeon is in argument of counsel. At trial, the police officer stated that he `observed the defendant enter the school with this cane in his possession.'"

Defendant further argues that the burden was upon the State to establish beyond a reasonable doubt all the essential elements necessary to constitute the crime charged. (People v. Quinn, 411 Ill. 97, 103, 103 N.E.2d 81 (1951).) If the object in question could obviously be used for no purpose other than as a weapon, such as a "sawed-off billiard cue" or a "broken baseball bat," then the object might be considered a bludgeon. Defendant further asserts there is no evidence in the record, probative or otherwise, to justify the ...


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