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People v. Abrams

JULY 18, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WALTER E. ABRAMS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS P. CRAWLEY, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 27, 1974.

This is a consolidated appeal from judgments entered by the circuit court of Cook County following a bench trial finding defendant Walter E. Abrams guilty of the offenses of unlawful use of a weapon (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4)), failure to register for a State firearm owner's identification card (Ill. Rev. Stat. 1971, ch. 38, par. 83-2), and failure to register a deadly weapon with the city of Chicago (Municipal Code of Chicago, ch. 11.1, § 7). Defendant was sentenced to 6 months in the House of Correction for unlawful use of weapons and was fined $45.00 for each charging of failure to register. Defendant contends:

1) The complaint charging the unlawful use of a weapon is void for failure to allege the requisite mental state of knowledge.

2) The complaint charging the failure to register for a State firearm owner's identification card is void from uncertainty created by the use of disjunctive language to state the charge.

3) The evidence was insufficient to prove beyond a reasonable doubt that defendant had possession of the firearm in question, or had concealed such weapon on or about his person.

4) Comments of the trial judge concerning the credibility of a defense witness evidenced a prejudice requiring reversal.

5) No competent evidence was presented that defendant had not registered both himself and the weapon in accordance with the applicable State statute and city ordinance.

The facts follow.

At trial the only witness who appeared on behalf of the State was Officer Nelson, a patrolman with the Chicago Police Department. On December 23, 1971, he and his partner went to 101 South California Avenue in Chicago to investigate a reported disturbance. Arriving at the address, which was a gas station next to an apartment building, Nelson observed defendant striking Mary Hanna, who was lying on the ground near an automobile. When Nelson attempted to intercede, defendant struck him, and Nelson informed defendant that he was under arrest. There was a struggle during the attempt to handcuff the defendant, in the course of which a revolver fell to the ground from defendant's waist. Defendant was then asked to produce a State firearm owner's identification card and a city registration card for the gun. He produced neither card. In court, Nelson identified a revolver as the one he had seen fall from defendant's person.

On cross-examination Nelson testified that when he first approached him the defendant looked up at him, and at that time they were face-to-face with each other and there were no other people in the immediate area where the incident occurred. He admitted that the revolver was not checked for fingerprints. In rebuttal, Nelson testified that the gun was not loaded.

Lee Clark testified for the defense that at about 10:00 P.M. on the day in question he had gone to the gas station at 101 South California Avenue to purchase cigarettes. He saw defendant straddling a woman who was lying on the ground next to an automobile. Clark testified that he was standing 20 to 25 feet from defendant and saw another man standing near defendant slide a revolver under the automobile next to defendant. The police then arrived. Clark identified the revolver, which had previously been identified by Officer Nelson, as the same weapon he had seen the man slide under the automobile. He stated that he had not known defendant prior to the incident.

Mary Hanna testified for the defense. She and defendant had been together for some 8 hours on the evening in question, and she had not seen a revolver in his possession during that time. They were riding in defendant's automobile near 101 South California Avenue when she told defendant she felt sick and was on the verge of convulsing. He said he would try to get some help. She stated that she recalled falling to the ground and defendant holding her as she convulsed, but could recall nothing else until she arrived at the hospital. She stated that she and defendant had not been arguing and that he was trying to help her.

Defendant testified in his own behalf. As he and Mary Hanna were driving near 101 South California Avenue she told him she did not feel well and he pulled into the gas station and asked her what was wrong. Just at that time the door on her side opened and Mary Hanna fell to the ground. Defendant enlisted the aid of a passerby to carry the girl into the apartment building next to the station but they could not move her. He then asked the passerby to call the police or an ambulance. Defendant said Mary Hanna could not speak and was foaming at the mouth, and he got on top of her in an effort to hold her down. Some time later, while he was still lying on top of her, a policeman appeared in front of him. Someone else had come up behind defendant and pulled him off the girl and threw him against the building wall. Defendant denied that he had resisted the police and further denied that he had a weapon in his possession. He testified that the first time he saw the revolver in question was later at the police station. On cross-examination he stated that at the scene of the incident another man was standing there but he did not know who it was and did not see the man in possession of a weapon.

At the conclusion of closing arguments the trial judge stated, in reference to the testimony of Lee Clark: "The mystery man to me is just unbelievable. Totally and completely ridiculously suggestive to the mystery man." After pronouncing the findings of guilty the judge responded to the assertion of defense counsel that Clark's testimony was indeed believable, by saying, "I thought it was preposterous. * * * I stated for the record that I didn't believe him."

I.

• 1 Defendant's first contention is that the complaint charging the unlawful use of a weapon is void under the provisions of section 111-3 (a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 111-3(a)(3)), in that it fails to allege the requisite mental state of knowledge which is an essential element of the crime charged. The complaint charged defendant as follows:

"OFF. L. NELSON complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that WALTER ABRAMS has on or about 23 Dec 71 at 101 S. California committed the offense of UNLAWFUL USE OF A WEAPON in that he carried on or about his person concealed a S&W .32 cal revolver Ser # 32368 in violation of Chapter 38 Section 24 1 a 4 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS."

The applicable statute (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4)) provides in pertinent part:

"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." (Emphasis supplied.)

Defendant's argument is predicated upon the requirement of section 111-3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 111-3(a)(3)) that a criminal charge must set forth the nature and elements of the crime charged. Although defendant made no objection at trial to the instant complaint, a criminal charge which does not state an offense may be attacked at any time. Ill. Rev. Stat. 1971, ch. 38, par. 114-1(b).

Defendant's contention is analogous to that raised in People v. Tucker (1973), 15 Ill. App.3d 1003, 305 N.E.2d 676. There the defendant challenged the validity of a complaint charging the crime of aggravated battery in that the complaint did not allege that the offense had been committed with either intent or knowledge. The court held that by the use of the technical term "battery" within the charge of "aggravated battery," the definition of that term as set forth in section 12-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 12-3), was necessarily incorporated into the complaint. Further, the court held that not only was the defendant chargeable with notice of the implicitly alleged mental state by the use of the technical term in the complaint, but such complaint was legally sufficient to both inform the defendant of the offense alleged and enable him to plead a judgment in bar to subsequent prosecution. See also People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697.

• 2, 3 The complaint herein alleged that defendant had committed the offense of unlawful use of a weapon and as such charged an offense of a technical nature similar to that presented in Tucker. The complaint itself does not contain any allegation that the act which constituted the offense of unlawful use of a weapon was committed with knowledge. However, under the authority of the Tucker case, defendant is chargeable with notice that implicit within the means by which it was alleged that he committed the offense, "carried on or about his person concealed a S&W .32 cal revolver," was the allegation that the act was committed with knowledge. Also, the specific statutory provision alleged to have been violated is cited within the ...


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