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People v. Stanley

OPINION FILED SEPTEMBER 7, 1976.

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

v.

JIMMIE STANLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. CONDON, Judge, presiding.

MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant, Jimmie Stanley, was charged by complaint with the offense of unlawful use of weapons in violation of section 24-1(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(10)). After a trial without jury defendant was found guilty and sentenced to one year's probation with the first 30 days to be served in the House of Correction. His sole contention on appeal is that the conviction must be reversed because the complaint is void for failure to allege a material element of the offense.

The complaint alleged: "Ptlmn. J. Siedlecki #3485 complainant, states that Jimmie Stanley has, on or about 19 October 1974, at Cook County, Illinois, committed the offense of Unlawful Use of Weapons in that he carried on or about his person a loaded firearm to wit: Colt .32 cal. revolver Ser. #69739, on property other than his own abode or other place of business in violation of Chapter 38, Section 24-1a10 Illinois Revised Statutes."

No pretrial motions were made. At the conclusion of the State's case in chief, defense counsel moved to dismiss the complaint only upon the ground that it failed to state that the offense had been committed within the corporate limits of the city of Chicago. The motion was denied. Defendant then testified in his own behalf.

The complaint alleged a violation of section 24-1(a)(10) of the Criminal Code of 1961 which provides:

"(a) A person commits the offense of unlawful use of weapons when he knowingly:

(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm." (Emphasis added.)

• 1 Section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 111-3) provides in pertinent part:

"(a) A charge shall be in writing and allege the commission of an offense by:

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;"

Both the statutory provision charged and the nature and elements of the offense must be specified in the complaint; the citation of the statutory provision allegedly violated is insufficient in itself to incorporate the statute by reference. People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437.

On appeal defendant has urged as an independent ground for dismissal the failure of the complaint to allege that defendant acted knowingly. At no time was the alleged omission urged in the trial court. Moreover, this court has previously held that a defendant is chargeable with notice that implicit within the means that he "carried on or about his person a loaded firearm" was the allegation that the act was committed with knowledge (People v. Abrams (1974), 21 Ill. App.3d 734, 316 N.E.2d 5). Therefore, the complaint is not insufficient for the foregoing ground.

However, at the conclusion of the State's case defendant did expressly move for dismissal of the complaint for failure to allege that the offense occurred within the corporate limits of a city, village, or incorporated town. Such allegation is a necessary and material element of the offense charged. The commission of ...


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