APPEAL from the Circuit Court of Cook County; the Hon. DAVID
J. SHIELDS, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial, Charlie Francis, defendant, was found guilty of unlawful use of weapons, in violation of section 24-1(a)(10) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10).) He was sentenced to 1-year conditional discharge on the condition that he serve 2 days in custody, time considered served, and fined the amount of his bail bond deposit. The weapon involved was confiscated. The record indicates that defendant was also found guilty of a municipal charge of unlawful use of weapons, in violation of section 11.2-1 of the Municipal Code of the city of Chicago, Illinois, and that he was found not guilty of failure to possess a firearm owner's identification card. (Ill. Rev. Stat. 1975, ch. 38, par. 83-2(a).) The record also indicates that no sentence was imposed upon the conviction of the municipal charge.
The only issue presented for review is whether the State failed to rebut beyond a reasonable doubt the defendant's affirmative defense of his exemption from the unlawful use of weapons statute on the ground that he was employed as a security guard at the time of his arrest. Ill. Rev. Stat. 1975, ch. 38, par. 24-2(a)(4).
At the outset of the trial, the parties entered a stipulation that the State's evidence would show defendant was arrested in Chicago on February 19, 1976, for possession of a loaded handgun while not in his home or on his property. Police Officer O'Connor testified for the State that he and his partner arrested defendant at 1:15 p.m. on that date near 47th Street and Kimbark Avenue, in the city of Chicago. This was the second time they had stopped defendant that day. Defendant was asked by the officers whether he was carrying a firearm owner's identification card and defendant responded that he possessed such card but did not have it on his person at that time.
Defendant testified in his own behalf that he was a security agent and supervisor employed by the W.L. Lillard Bureau of Investigation. He had worked in such capacity at Provident Hospital from 4 p.m. to midnight on the evening preceding his arrest. He related that he was assigned to service the A & P food store at 4646 Drexel at 9 a.m. the following morning as a replacement for a newly hired agent who had not shown up for work. Defendant stated that the new agent arrived at the store about 10:30 a.m., but that he (defendant) remained on duty at the store to supervise the work of the new employee which was normal agency procedure.
Defendant further testified that he was first approached by the arresting officers about 12:30 p.m. while seated in an automobile parked near 51st Street and Woodlawn Avenue; that he then related to the officers that he was on his lunch break and was waiting for a woman to return to the car with food. The officers asked for his driver's license, which he did not have, but he did give them identification in the form of a State Firearm card, and Illinois State registration and identification card, commonly known as a blue card, and a W.L. Lillard Bureau of Investigation card. The three cards were admitted into evidence at trial without objection.
Defendant also testified that the officers issued a traffic citation for failure to possess a driver's license and told him they would arrest him if they saw him again. Following the first encounter with the police officers, defendant related that he returned to the A & P store on Drexel Avenue, where he remained for about 10 minutes. He claimed that he then "went off duty," left the store, and as he was driving in an easterly direction away from the store, he was again stopped and arrested by the same officers near 47th and Woodlawn Avenue. He was stopped within 4 to 5 minutes after his departure from the store. Defendant testified that he told the officers he had "just taken off" and was on his way to purchase cigarettes at a location where the price was lower than at the A & P where he was stationed. Defendant also related that his normal work assignment covered 8 hours, that he had worked additional periods as a backup "plenty of times," but that he received the "same money" whenever he worked backup hours. On the date of his arrest, defendant resided in the 7100 block of South Bell Avenue, in Chicago.
Police Officer Larson, one of the arresting officers, was initially called as a defense witness but was later questioned as an adverse witness. He related that the officers approached defendant on the first occasion because he was seated in a car parked in a no-parking zone. While being questioned regarding his purpose at that location, defendant was unable to produce a driver's license. Defendant told the officers that he did not have a firearm owner's identification card with him, but when defendant produced his "blue card" and the Lillard security agency card, the officers "assumed" that he had proper identification to carry a gun. The witness' report recited that defendant exhibited "proper identification to carry a firearm" and that he was released after he told the officers that he was on his lunch break. The officer further testified that he and his partner "did not pursue" the matter after defendant revealed the foregoing matters to them, but that defendant was told to "go back on it" after he was finished eating.
Officer O'Connor testified for the State in rebuttal. He related that when defendant was stopped the first time at 12:30 p.m., he told the officers that he had worked the 4 p.m. to midnight security shift at Provident Hospital and was presently filling in for another security guard at the A & P store. The witness testified that when defendant was stopped 45 minutes later, he told the officers that he was on his way to purchase cigarettes and that he had been relieved from duty at the store about 10:30 a.m. However, the arrest report did not show that defendant told the officers he had been relieved at 10:30 a.m. The officer stated defendant did not say he had just left work.
Section 24-1(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10)) provides in pertinent part that a person commits the offense of unlawful use of weapons when he knowingly carries or possesses a loaded firearm on or about his person within the corporate limits of a city, except when on his land or in his abode or fixed place of business. The State's evidence established the elements of that offense.
• 1 Defendant argues that possession of the weapon was justified on the ground that he was a security guard at the time of the arrest, and was traveling within 1 hour from the time of his departure from his assignment, thereby coming within the exemption provided in section 24-2(a)(4) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 24-2(a)(4).) The section provides in pertinent part that section 24-1(a)(10) does not apply to
"* * * security guards while actually engaged in the performance of the duties of their employment or commuting between their homes and places of employment, provided that such commuting is accomplished within one hour from departure from home or place of employment, as the case may be, * * *."
Section 24-2(a)(4) is known as the security guard exemption and it constitutes an affirmative defense to the offense of unlawful use of weapons.
In support of his argument, defendant relies on People v. Williams (1975), 28 Ill. App.3d 67, 328 N.E.2d 192. Defendant contends that he virtually offered the same proof as in Williams, that the State failed to prove beyond a reasonable doubt that he was not covered by the security guard ...