APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Fred Cook, hereinafter defendant, was charged in a two count indictment with unlawful use of weapons in that he knowingly carried a pistol concealed in a motor vehicle (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(4)), and in a second count with having committed that same offense within five years of his release from the penitentiary following a felony conviction (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b)), thus making this offense a Class 3 felony. Following a bench trial defendant was convicted on the second count and was sentenced to the penitentiary for a term of one to three years.
Defendant appeals his conviction, contending that the evidence at trial established the applicability of the statutory exemption for guns which are not immediately accessible. (Ill. Rev. Stat. 1973, ch. 38, par. 24-2(b)(4).) Defendant also contends that the trial court erred in finding him in constructive possession of the gun in issue.
For the reasons hereinafter set forth we reverse the conviction.
At trial State witness Willie Graham, on probation for manslaughter and under indictment for two separate murders, testified that at about 5 a.m. on September 30, 1975, the defendant placed a gun under the hood of a car and then gave Graham a ride in that car to the Lewis Hotel at 1155 North Milwaukee in Chicago. Graham then left defendant and entered the hotel. Chicago police officer Robert Drobniewski testified that when he approached the defendant, defendant was seated behind the wheel of the car, with the key in the ignition and the engine running. When the officer searched the car he discovered the gun in question under the hood, next to the battery.
Defendant testified that it was Graham who gave the defendant a ride. Graham stopped the car outside of the hotel, telling defendant that he wouldn't be gone long, then placed a gun under the hood of the car before entering the hotel. Defendant testified that, while he may have been sitting behind the wheel when approached by the officer, the engine was not running and the key was not in the ignition. The officer then searched the car and found the gun under the hood.
Because of evidence that Graham changed his testimony at trial from that given to defense counsel before trial, the trial judge termed Graham's testimony "suspect." In finding that defendant was in constructive possession of the gun the court apparently disregarded Graham's testimony. The court based its ruling on its finding that defendant knew that the gun was under the hood and defendant was behind the wheel of the car with the engine running when the officer approached him.
Defendant contends that the defense of inaccessibility provided in section 24-2(b) of the Criminal Code was raised and proved at trial. That section provides in relevant part:
"(b) Subsections 24-1(a)(4) and 24-1(a)(10) do not apply to or affect any of the following:
(4) Transportation of weapons * * * not immediately accessible." Ill. Rev. Stat. 1973, ch. 38, par. 24-2(b)(4).
• 1 It is clear that the gun was not immediately accessible to the defendant. In People v. Adams (1962), 73 Ill. App.2d 1, 220 N.E.2d 17, defendant's conviction for carrying a weapon on or about his person was reversed because the gun, found under the driver's seat, was inaccessible to the defendant who was stout and would have had to open the door of his compact car in order to reach the gun. More recently, in People v. Bastien (1974), 19 Ill. App.3d 773, 312 N.E.2d 795 (abstract), defendant was convicted under section 24-1(a)(4) after a gun was found in his car trunk when he was stopped for a minor traffic violation. The appellate court reversed the conviction because the gun was not immediately accessible since defendant would have had to stop his vehicle, walk to the rear of the car, unlock the trunk, and open it in order to get the gun. Similarly, in the case at bar, in order to get the gun the defendant would have had to get out of the car, walk to the front of the car, and open the hood. Under these facts it is clear that the gun was not immediately accessible. Indeed, in its brief the State does not deny this conclusion, although it does not specifically concede it.
The State relies on subsection 24-2(g) of the Criminal Code, which provides:
"(g) An information or indictment upon a violation of any Subsection of this Article need not negative any exemptions contained in this Article. The defendant shall have the burden of proving such an ...