APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was tried before a jury for the offenses of unlawful use of weapons (Ill. Rev. Stat. 1969, ch. 38, par. 24-1(a)(4)) *fn1 and battery. (Ill. Rev. Stat. 1969, ch. 38, par. 12-3.) Defendant was acquitted on the battery charge but found guilty on the charge of unlawful use of weapons (carrying a concealed weapon). He was placed on three years probation, the first six months to be served in the County Jail.
On appeal defendant contends: (1) that the trial court erred in failing to direct a verdict after the State's case in chief as to the charge of carrying a concealed weapon; and (2) that his right against self-incrimination was violated when he was cross-examined as to the charge of carrying a concealed weapon.
At 8:30 P.M. on April 10, 1970, William Lewis was standing in front of a hot dog stand near 56th and Ashland Avenue. He had just left a group of friends across the street. Lewis saw the defendant leave a laundromat which was a few feet from the hot dog stand. Defendant was with his girl friend. She was walking on his right side. When defendant had walked about five feet past Lewis, defendant turned around and fired about four or five shots at Lewis, one of which struck him in the thigh. On direct examination Lewis stated that he saw defendant remove the pistol from his right pocket. On cross-examination Lewis testified that he never saw defendant "draw the gun." He could only see defendant's left side.
Richard Haggart was standing near a group of people across the street from the hot dog stand and laundromat during the relevant time. He knew William Lewis and had seen the defendant around the neighborhood. He saw defendant standing by the laundromat with his girl friend. He saw Lewis cross the street to the hot dog stand. Defendant walked past Lewis and then turned and pulled something out of his pocket. Haggart couldn't tell what this thing was until defendant shot it. He saw the gunfire flash. It was nighttime but it wasn't dark on the street. On cross-examination Haggart stated that if the defendant had the gun in his hand at all times, his hand would have been in his pocket. When asked if defendant could have been holding the gun alongside of him, Haggart responded, "I would have seen it; I would have seen something."
Chicago police officer Ralph Bell testified that Ashland Avenue has four lanes. At 8:30 P.M. on the night in question it was dark outside but "there is plenty of lighting on Ashland because of the new lighting there, and the stores were well lighted."
After the court denied defendant's motion for a directed verdict on the charge of carrying a concealed weapon, defendant called Ardenna Allan as his witness. She testified that she was planning to marry defendant; that when they came out of her house to go to the laundromat she did not know defendant had a gun on him nor did she see a gun in his hand at the laundromat; that she was walking at his side; and that the first time she saw the gun was after defendant shot it. Defendant testified that he was carrying a pistol in his pocket that night; that he carried it in order to protect himself and his girl friend from Lewis and others in the area; "the area had been the subject of racial problems and fighting." Defendant further testified that he removed the pistol from his pocket at the time he left the laundromat. When he walked past Lewis, Lewis drew back a stick he was holding. Defendant fired at Lewis because Lewis tried to hit him with the stick. Lewis denied carrying a stick.
• 1 Defendant first contends that the court erred in failing to direct a verdict at the end of the State's case on the charge of carrying a concealed weapon. Defendant acknowledges the general rule that such error is waived by presenting a defense after the motion is denied. (People v. Cross, 40 Ill.2d 85, 90, 237 N.E.2d 437.) He argues, however, that an exception should be made where two offenses are joined for trial, and the defendant deems it necessary to present evidence to rebut the State's case as to one of the joined offenses (the battery charge here) but still wishes to contest the ruling on the motion for a directed verdict as to the other offense (carrying a concealed weapon here).
• 2 We feel it is unnecessary to address ourselves to this argument because it is clear that there was sufficient evidence to justify the trial court's denial of defendant's motion for a directed verdict on the concealed weapons charge.
Defendant states in his brief that "there was no testimony whatsoever [in the State's case] directly relating to the issue of carrying a concealed weapon." But the contrary is true.
Richard Haggart gave the following testimony:
"[Defendant] started walking towards 55th, and then he [defendant] turned around and pulled something out of his pocket. I couldn't tell [what this article was] until he shot."
Later the following testimony was given:
"Q: He couldn't have had a gun in ...