APPEAL from the Circuit Court of McHenry County; the Hon.
CONRAD FLOETER, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant, William A. Green, was charged with unlawful use of weapons in violation of section 24-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)). Evidence introduced at the bench trial established that defendant was carrying a concealed pellet gun in his vehicle at the time he was apprehended.
Officer Robert Zujewski testified that the gun was a .177-caliber pellet gun, which the officer said the defendant told him was used for hunting rabbits. The gun fired .177-caliber pellets of a "round tubular" configuration, by expulsion of pumped up air. The officer testified that he test fired the gun into a piece of fiberboard at the police station.
At the close of this evidence, defense counsel moved for a directed verdict on the basis of his contention that the weapon in question was not a "firearm" within the definition of section 1.1(1) of "An Act relating to the acquisition, possession * * * of firearms * * *" (Ill. Rev. Stat. 1975, ch. 38, par. 83-1.1(1)). This motion was denied and the defendant found guilty. The court found that since the projectile expelled by the gun was not "globular," but was, in fact, "tubular" and flat headed, the gun was a firearm under the meaning of section 24-1(a)(4). The defendant was fined $100 and a notice of appeal was filed. The pertinent statutory provisions are as follows:
"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." Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)
Section 1.1 of "An Act relating to the acquisition, possession * * * of firearms * * *" (Ill. Rev. Stat. 1975, ch. 38, par. 83-1.1(1)) states:
"For purposes of this Act:
`Firearm' means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however:
(1) any pneumatic gun, spring gun, or B-B gun which expels a single globular projectile not exceeding .18 inch in diameter."
Section 1 of "An Act * * * regulating * * * air rifles" (Ill. Rev. Stat. 1975, ch. 38, par. 82-1(1)) defines an air rifle as follows:
(1) `Air rifle' means and includes any air gun, air pistol, spring gun, spring pistol, B-B gun, pellet gun or any implement that is not a firearm which impels a pellet constructed of hard plastic, steel, lead or other hard materials with a force that reasonably is expected to cause bodily harm."
While it is acknowledged by defendant that the pellet gun involved in this case does not discharge a "globular" projectile, defendant nonetheless argues that the pellet gun here was not a firearm within the meaning of section 24-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)). In support of this contention defendant makes two points: (1) the pellet gun involved in this case is an air rifle as described in section 1 of "An Act * * * regulating * * * air rifles * * *" (Ill. Rev. Stat. 1975, ch. 38, par. 82-1(1) and not a firearm as described in section 24-1(a)(4) (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)); and (2) that the construction urged by the State, that would permit the pellet gun in this case to be a ...