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People v. Wilson

JUNE 16, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. BOSCO, Judge, presiding.


Carol Wilson (defendant) was charged with unlawful use of a weapon. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4).) After a bench trial, defendant was found guilty and sentenced to 6 months' probation. The sole issue on appeal is whether defendant was proven guilty beyond a reasonable doubt.

Chicago Police Officer Louis Brown testified that, on December 3, 1973, he responded to a call that shots were being fired in an apartment at 4947 South Federal, Chicago. Upon his arrival he met defendant at the elevator. They had a conversation and defendant then handed him a .22-caliber revolver which she took from her "left coat pocket." Then he and defendant went upstairs and he spoke to defendant and her husband, Claude Smith. Brown testified, without objection, that he "found out" that defendant had no reason to have the gun in her possession so she was charged with the unlawful use of a weapon and Smith was charged with discharging a weapon. The witness did not see Smith fire any weapon. On cross-examination, Brown said that when defendant gave him the revolver she was in the building elevator.

Defendant testified that she was the wife of Claude Smith. She was in her apartment when she was arrested but she was in the elevator when she handed the revolver to the police officer. Defendant said she had a State identification card. Defendant's Exhibit 1 was identified as a Firearm Owner's Card issued by the Illinois Department of Law Enforcement. On cross-examination, defendant testified that before she handed the gun to the police officer it was in her "right dress pocket."

• 1 Defendant argues that necessity required her to have the weapon in her pocket and to avoid a greater injury it was necessary for her to disarm her husband. Section 7-13 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 7-13) provides:

"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."

This affirmative defense was not raised in the trial court in any manner. It may not be raised for the first time in a court of review. People v. Howell, 60 Ill.2d 117, 120, 121, 324 N.E.2d 403; People v. McAdrian, 52 Ill.2d 250, 253, 254, 287 N.E.2d 688; People v. Studdard, 51 Ill.2d 190, 198, 281 N.E.2d 678; People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353.

However, even if the point had been properly urged in the trial court, it would not assist defendant because the record is completely bare of evidence to support it. The officer testified that defendant told him her husband had shot a hole in the wall. The trial court sustained defendant's objection to this testimony and ordered it stricken. Further, Smith was found not guilty of discharging a weapon. Even if the officer's stricken testimony be considered, the fact that defendant asserted that her husband had discharged the weapon is not, by itself, sufficient to raise the issue of necessity. There is no other evidence showing how or why defendant had the gun concealed in her pocket while she was in the elevator and corridor of the apartment building where she lived.

Neither the events nor the motives upon which defendant now seeks by argument in this court to predicate the defense of necessity appear in the record. The police officer testified without objection that he "found out" that defendant had "no reason to have the gun and have it on [sic] her possession * * *." Defendant, by her own testimony and otherwise, has not made even a prima facie showing of necessity to carry the weapon concealed in her pocket while walking through the corridor and while in the elevator of the building. (People v. Ballard, 59 Ill.2d 580, 585, 322 N.E.2d 473. See also People v. Warlick, 13 Ill. App.3d 276, 300 N.E.2d 834 (abstract opinion), leave to appeal denied, 54 Ill.2d 599.) There, defendant testified that he wrestled with and disarmed a person holding a revolver because he was afraid the weapon would be discharged and hurt someone. This court held that this evidence did not make even a prima facie case of necessity to conceal the weapon. Compare People v. Lampkins, 28 Ill. App.3d 246, 328 N.E.2d 100, where this court affirmed rejection of the defense of necessity by the trial court under far stronger testimony supported by a degree of corroboration.

Defendant also argues here that she did not intend to conceal the weapon but that the only logical inference to be drawn from her conduct was that she took the weapon from her husband and gave it to Officer Brown for safekeeping and that such conduct does not violate the language or the intent of the pertinent statute.

The statute provides (Ill. Rev. Stat. 1973, ch. 38, par. 24-1):

"(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."

• 2 The statutory exception, concealment of the weapon "on his land or in his own abode" is not applicable here. In People v. Williams, 15 Ill. App.3d 823, 305 N.E.2d 186, defendant was found guilty under the same statute for carrying a concealed weapon in the hallway of the building in which she lived. Public areas in an apartment building to which tenants and invitees have access are not the "abode" of any tenant. See ...

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