APPEAL from the Circuit Court of Cook County; the Hon. ERWIN
COHEN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of the charge of unlawful use of a weapon in the City of Chicago in violation of section 24-1(a) (10) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a) (10)) and was given a 1-year sentence.
On appeal, defendant does not dispute the commission of the act charged but challenges only the validity of the statute under which he was convicted. Specifically, he contends the statute is unconstitutional in that (1) it violates article IV, section 13, of the Illinois Constitution because it applies only to incorporated cities, villages and towns; and (2) having this limited application, it also violates the equal protection clause of the United States Constitution.
The State objects to the introduction at the appellate stage of these contentions. It argues that the constitutional avenue of attack has been waived by failure to preserve the point by timely objection in the trial court.
In support of its position that constitutional questions are improperly raised when first presented in the appellate court, the State invites our attention to two cases which it contends are controlling, People v. Reese, 14 Ill. App.3d 1049, 303 N.E.2d 814, and People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353. In Reese, this court stated at page 1055:
"Concerning the question of the constitutionality of the applicable statute, we have examined the entire record and find this issue was not raised in the trial court and is being raised here for the first time. Since this is the first point at which the constitutionality issue has been raised, we will not consider the question here."
However, it is to be noted that this language is obiter dicta since the court proceeded to reverse the trial court's decision on other grounds.
In Amerman, defendant was convicted of possessing a pistol without registering it as required by the provisions of the Firearm Owner's Identification Act. Then, for the first time on appeal, he contended the Act was unconstitutional in that it deprived him of due process and equal protection rights. In dismissing his appeal, the court stated at page 197:
"We cannot entertain this appeal. The rule is familiar that a non-jurisdictional question which has not been properly presented in the trial court and preserved for review will not be considered on appeal. [Citation.] This rule is, of course, applicable to constitutional questions. `It is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. [Citations.]'"
In his dissent in Amerman, Mr. Justice Goldenhersh examines the history of legal gyrations which produced the result determined by the majority. He then proceeds to state at page 200:
"The Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, par. 100-1 et seq.) enumerates the grounds upon which a pre-trial motion to dismiss an indictment may be made (par. 114-1) and provides that all are waived by failure to file a motion except * * * 114-1(a)(8) which provide respectively:
`(8) The charge does not state an offense.'
The Committee Comments (S.H.A. ch. 38, sec. 114-1, p. 123) state: `Subsection (a)(8) permits the motion to dismiss where the charge does not state an offense. In accordance with Article III, `charge' refers to the complaint, indictment or information. Since a charge which does not state an offense does not give defendant a full notice of why he is being tried, and the charge will not support a ...