Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Charles M. Wilson, Judge, presiding.
MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:
Defendant, Henry Lee Smith, was found guilty by a jury in the circuit court of Peoria County of 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)).
Defendant was sentenced to a term of imprisonment of not less than three nor more than nine years. On appeal, the appellate court affirmed the judgment. (45 Ill. App.3d 66.) We granted leave to appeal pursuant to Rule 315 (58 Ill.2d R. 315) of this court.
The issues are: (1) Was the revolver, located in a locked glove compartment of defendant's vehicle, "not immediately accessible" to defendant within the meaning of the statutory exemption to the crime of unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24-2(b)(4))? and (2) Was the jury erroneously instructed?
On November 8, 1973, police officer Short of the Peoria Police Department was alerted by radio to look out for a vehicle with Illinois license plate No. UE 9281. He located the vehicle, parked and unoccupied. He was joined by Lieutenant Dyke to await its owner. Defendant was arrested when he was about to enter the vehicle, which he admittedly owned. Neither Officer Short nor Lieutenant Dyke saw the defendant in the vehicle or observed the weapon. At the station, after defendant had been advised of his rights, he signed a consent form permitting the police to search the automobile. According to Officer Poynter, the interviewing officer at the station, defendant had admitted that there was a gun in the glove compartment of the car and that he owned this weapon, which had been there for four days.
Defendant, according to the police, stated that he did not have the key to the glove compartment. Accordingly, the police employed screwdrivers to open the compartment. A fully loaded .22-caliber revolver was removed. This was received in evidence.
The State conceded that a person with a key could not have opened the glove compartment while driving the car. No identifiable fingerprints were found on the pistol.
Proof was made of defendant's prior felony conviction and his release from the penitentiary within the past five years. Absent such evidence the crime would have been a misdemeanor, not a felony. Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b).
Defendant testified on his own behalf. He admitted ownership of the automobile but denied ownership of the gun. He stated that he had not had a key to the glove compartment for a 10-month period prior to his arrest. He specifically denied statements to the contrary allegedly made to the police.
The crime for which defendant was tried does not apply where the weapon is not immediately accessible. The trial court found sufficient evidence had been received to raise the issue of nonaccessibility of the weapon.
The threshold question is whether the evidence was such as to justify a conviction under the statute (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(10)). In the present case defendant was convicted under section 24-1(a)(10) (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(10)):
"Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly:
(10) Carries or possesses in a vehicle * * * 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."
This statute further provides in section 24-2 a list of "exemptions" of which the following is at issue here.
"(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).)
Section 24-2(g) provides the following about the burden of proof in relation to this list of exemptions:
"(g) An information or indictment based 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 exemption." Ill. Rev. Stat. 1973, ch. 38, par. 24-2(g).
So long as the weapon in question is in such proximity to the accused as to lie within easy reach so that the weapon is readily available for use, it is "immediately accessible." In People v. McKnight (1968), 39 Ill.2d 577, a pistol was found six inches under the front seat of an automobile between defendant and the center hump. Since a normal understanding of the language controlled, the weapon was considered ...