APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
The defendant, Robert E. Greer, appeals from a judgment of the Circuit Court of St. Clair County entered upon a jury verdict finding him guilty of the offense of armed robbery. Ill. Rev. Stat. 1975, ch. 38, par. 18-2(a).
The evidence adduced at trial indicates that at approximately 9 p.m. on April 4, 1975, Ernest Godfrey was walking toward Martin Luther King Drive in East St. Louis when someone approached him from the rear, grabbed his arm and said, "I want your money." The assailant then put a gun to Godfrey's head and repeated his demand. Godfrey gave him nine dollars, a cigarette lighter, and a package of Kool cigarettes. Defendant was apprehended approximately 45 minutes after the robbery occurred. In his possession was a .22-caliber, gas operated pellet pistol; it was not loaded. One of the arresting officers testified that the weapon resembled a "357 trooper revolver" and a .45-caliber revolver.
At trial, the State introduced the expert testimony of Raymond Herr, a former East St. Louis police officer. He described the pistol taken from defendant as "a Crossman .22-caliber CO
gas gun with a three inch barrel." Herr said that when he received the pistol it was not loaded and its gas cylinder did not contain enough CO
to fire a projectile. In order to test fire the weapon, Herr purchased a gas cylinder and some .22-caliber pellets. Herr testified that when the pistol was fired, the pellets penetrated four layers of cardboard. Despite a general objection made by defense counsel, Herr was allowed to state that, in his opinion, the pistol was a dangerous weapon. Upon cross-examination, Herr stated that the pellet gun was dangerous when operable, but that it had been inoperable until he loaded it and replaced the gas cylinder.
The Assistant State's Attorney made the following remarks during closing argument:
"That particular weapon, as you have heard testimony from a former police officer, now investigator, Ray Herr, is in fact, an operable weapon when it is loaded. It is, in fact, a dangerous weapon even without being loaded. It is in fact a dangerous weapon by the mere fact that it was used by the defendant to take money from him. * * * You have seen the weapon and you have heard testimony from Mr. Herr concerning the capabilities of that weapon, and when, in fact, it is loaded, it is capable as he test-fired it, of penetrating * * * thicknesses of standard size cardboard. I think you can all conclude that that is a much bigger consistency than that of the human skin, and you can draw your own conclusions from that testimony.
You have got by the threat of force with a dangerous weapon; you saw that weapon, you know what the weapon looks like, what it can do, whether it is loaded or unloaded; whether the defendant had a chance to unload it or not after the armed robbery, I don't know. It could have been used to have beaten the victim to death for all I know."
Defense counsel did not object to any of the foregoing comments.
Among the instructions given to the jury were People's Instructions Nos. 7 and 8, which stated, inter alia, that in order to find the defendant guilty of armed robbery the jury had to be convinced, beyond a reasonable doubt, that defendant had been armed with a dangerous weapon at the time of the robbery. See IPI Criminal Nos. 14.01 and 14.02.
On this appeal, defendant contends that Raymond Herr should not have been allowed to state that the pellet gun was a dangerous weapon, because his opinion did not relate to the condition of the gun at the time of the robbery. Defendant also asserts that the combination of Herr's irrelevant opinion and the State's prejudicial closing argument, in effect, directed the jury to find that he was armed with a dangerous weapon at the time of the robbery. He argues that it was reversible error to "direct" a verdict on this issue because it presented a question for the trier of fact.
The State argues that a verdict was not directed, and that it was the jury which decided that the gun used in the robbery was dangerous. The State also urges us to hold, as a matter of public policy, that a gun, loaded or unloaded, operable or inoperable, is always a dangerous weapon within the purview of the armed robbery statute. Acceptance of this latter contention would clearly require us to affirm defendant's conviction. We will, therefore, consider it first.
The supreme court defined a "dangerous weapon" in People v. Dwyer, 324 Ill. 363, 155 N.E. 316 (1927). The defendant in that case was charged with robbery while "armed with a certain dangerous weapon, to-wit, a certain pistol." The defendant argued that this allegation was insufficient without the further allegation that the pistol was loaded, "because a pistol not loaded is not a dangerous weapon per se." Although the supreme court affirmed defendant's conviction, its reasoning in doing so is less than clear:
"A deadly weapon is an instrument that is used or may be used for the purpose of offense or defense and capable of producing death. Some weapons are deadly per se; others, owing to the manner in which they are used, become deadly. A gun, pistol or dirk-knife is itself deadly, while a small pocket knife, a cane, a riding whip, a club or baseball bat may be so used as to be a deadly weapon. [Citations.] A weapon with which death may be easily and readily produced is a deadly weapon; anything made for the purpose of destroying life or for another purpose, or not made by man at all, if it is a thing with which death can be easily and readily produced, the law recognizes as a deadly weapon. [Citation.] Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case. [Citations] * * * Such things as all persons of ordinary intelligence are presumed to know are not required to be proved, and an indictment which charges that the defendant was armed with a pistol charges that he was armed with a deadly weapon. If the question were one of fact to be determined by the jury it would be presumed from the verdict of guilty that there was sufficient evidence to sustain the charge that the pistol was a deadly weapon." (Emphasis added.) 324 Ill. 363, 364-65, 155 N.E. 316, 317.)
Although the supreme court's disposition of the Dwyer case might indicate that a pistol, whether loaded or unloaded, is dangerous per se, the court's definition of a dangerous weapon belies that conclusion. Leaving aside the possibility that a firearm may be used as a bludgeon (the court did not discuss that possibility in Dwyer), it can hardly be said that an unloaded gun is "a thing with which death can be easily and readily produced." Adding to the confusion is the court's rather enigmatic statement that if the question were one of fact it would be presumed that the evidence sustained the jury's determination.
Our courts> have relied upon Dwyer, often sub silentio, in affirming many armed robbery convictions without requiring either production of the firearm used or proof that it was loaded and operable at the time of the robbery. (See, e.g., People v. Patrick, 53 Ill.2d 201, 290 N.E.2d 227 (1972); People v. Mentola, 47 Ill.2d 579, 268 N.E.2d 8 (1971); People v. Emerling, 341 Ill. 424, 173 N.E. 474 (1930); People v. Moore, 14 Ill. App.3d 361, 302 N.E.2d 425 (1st Dist. 1973), and cases cited therein (use of dangerous weapon may be inferred from circumstantial evidence).) In People v. Harrison, 359 Ill. 295, 194 N.E. 518 (1935), for example, an armed robbery conviction was upheld even though the only evidence that the defendant was armed with a dangerous weapon was the testimony of the victim that a cold, metallic object, which fitted the description of a pistol or revolver barrel, was placed against his neck. See also People v. Wyatt, 23 Ill. App.3d 587, 319 N.E.2d 575 (3d Dist. 1974).
The foregoing cases strongly indicate that any firearm is a dangerous weapon as a matter of law. It must be noted, however, that in none of these cases was the particular weapon involved in the crime actually introduced into evidence. (But see People v. Estes, 37 Ill. App.3d 889, 346 N.E.2d 469 (4th Dist. 1976).) As will be seen, the courts> have been reluctant to apply this per se rule with full vigor when faced with evidence that the "dangerous weapon" used in an armed robbery was, in fact, unloaded or otherwise inoperable.
In People v. Trice, 127 Ill. App.2d 310, 262 N.E.2d 276 (1st Dist. 1970), the evidence that two defendants had committed armed robbery consisted of the victim's testimony that one of the defendants had placed a pistol to the victim's head and relieved him of some personal belongings and cash. When the defendants were apprehended, each of them had a .22-caliber starter pistol in his possession and the question arose whether a starter pistol was a dangerous weapon. The appellate court, citing the Dwyer case, held that this was a question for determination by the trier of fact because:
"There was testimony in the present case that the weapon was held to the head of the victim; there was also testimony that a charge from a shell can create a high flash and cause considerable damage. Based on such testimony the jury was entitled to conclude that the weapon was dangerous." 127 Ill. App.2d 310, 321, 262 N.E.2d 276, 282.
In People v. Ratliff, 22 Ill. App.3d 106, 317 N.E.2d 63 (4th Dist. 1974), defendant was convicted of armed robbery and contended, on appeal, that the judgment should be reduced from armed robbery to robbery since the weapon used was a .22-caliber pistol designed to fire blank cartridges and, therefore, not a dangerous weapon. The court held that this issue was for the jury to resolve, reasoning that:
"Defendant argues that there is nothing in the record upon which it may be concluded that the weapon was dangerous `as used.' We note that the `starter pistol' in Trice was used to threaten the victim; in Dwyer the weapon was a pistol but there was no allegation that it was loaded. It, too, was used to threaten the victim. We do not understand Dwyer, or Trice to stand for the proposition that injury or physical harm ...