APPEAL from the Circuit Court of McHenry County; the Hon.
ALVIN LACEY WILLIAMS, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 6, 1973.
A jury found the defendant, Thomas A. Gokey, guilty of reckless driving, unlawful use of a weapon and bribery. He was sentenced to serve concurrent terms of one year for the weapons offense, 90 days for reckless driving and 2 to 5 years for bribery. His appeal was transferred here by the Supreme Court.
At 3:00 A.M., April 8, 1969, two sheriff's policemen on patrol in their squad car, observed a vehicle pass their car at a speed in excess of the limit. They stopped the auto and Sergeant Meyers recognized the driver-defendant, as a man he had known for thirty years. The driver was warned that he had been speeding and was advised to slow down, after which he drove away. Shortly thereafter, the same officers observed defendant's vehicle speeding, crossing the center line, and passing in a no-passing zone. Defendant was again stopped.
Sergeant Meyers informed defendant he was going to be arrested. Both officers testified that defendant then stepped out of his car and, as he did so, "something" was heard to hit the pavement. Looking down, a gun was observed at defendant's feet. He was placed in the squad car and transported to the police station to be charged with reckless driving and unlawful use of a weapon.
Sergeant Schalz, the shift sergeant, testified that after arriving at the station, defendant queried, "* * * you're not going to let them put me in jail, are you?"; that defendant then stated he would give Sergeant Schalz $50 to avoid being jailed; that after the sergeant's refusal, defendant offered $500, then $5,000 and that, finally, defendant offered all the money he was carrying, which totaled $7,261.
Defendant produced evidence that he suffers from diabetes and must take daily dosages of insulin; that a diabetic, taking insulin, must eat three regular meals without which he can go into insulin shock; that persons suffering from insulin shock become, in a sense, intoxicated; that their behavior is bizarre, they may have unusual ideas, faulty memory and lose touch with reality.
Defendant testified that during the morning of April 7, 1969, he received a shot of insulin from his doctor, self-administered another later in the day, but had nothing to eat during the afternoon or evening. In the early evening, he drove from Woodstock to Chicago where he met with his father and received $7,000 in cash to be used in a business venture. He stated that, anticipating the large amount of money he would be carrying, he took his gun and that on the way back from Chicago, the gun was on the floor of the driver's side of the car. Enroute home, he stopped, intending to get something to eat but found the restaurant closed; he began to feel ill, had the chills and perspired; he remembered both times he was stopped by the police but did not remember anything that happened from the time of his arrest until he woke in jail later that morning.
• 1 At the outset, the State confesses error and concedes that the complaint for reckless driving (upon which defendant was tried) was constitutionally insufficient and void. (See, People v. Griffin, 36 Ill.2d 430 (1967).) The conviction for reckless driving is therefore reversed.
The remaining contentions are (1) the State failed to prove concealment, an essential element of the weapons charge, (2) the bribery indictment was void, (3) defendant was not proven guilty of bribery beyond a reasonable doubt, and (4) the sentences should be reduced.
The unlawful use of weapons statute, Ill. Rev. Stat. 1967, ch. 38, sec. 24-1(a)(4), which defendant allegedly violated, provides:
"A person commits the offense of unlawful use of weapons when he knowingly 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."
Defendant alleges that the court erred in not directing a verdict for him at the close of the State's case because there was no evidence of concealment of the weapon.
Sergeant Meyers testified that "a gun came out of his clothing somewhere, I don't know exactly where, and it landed right by his foot." He admitted, however, that the gun first came to his attention when he heard it hit the pavement. Deputy Fair also testified that he did not observe the gun until it hit the pavement; that, when he looked down, part of the gun was "on his [defendant's] shoe, partially covered by the pants * * *" and that the gun subsequently fell out. Both ...