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People v. Preston

OPINION FILED JULY 7, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BILLY J. PRESTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, Judge, presiding.

MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

After trial by jury in the circuit court of Adams County, defendant Billy J. Preston was convicted of the offenses of aggravated assault and unlawful use of weapons and sentenced to 3 1/3 to 10 years' imprisonment. On appeal he contends that his guilt was not proved beyond a reasonable doubt and that the court erred in: (1) failing to sua sponte give an instruction to the jury that informed the jury of all of the elements of the offense, (2) refusing defendant's instruction with reference to circumstantial evidence, and (3) permitting impeachment of defendant by evidence of a stale conviction.

The evidence showed that at about 1:30 a.m. on July 28, 1977, defendant was leaving a nightclub in Quincy known as Cannon's. As he left he had an altercation with Jim Marshall. Defendant testified that as he left, Marshall grabbed him by a sore arm whereupon he, defendant, left walking north and then east down an alley. Marshall testified that he bumped into defendant and then defendant pointed a handgun at him causing him to fear defendant would shoot him. Gary Parrish, a police officer, testified that he saw some pushing and shoving in front of Cannon's and then saw defendant run north from Cannon's and then east down an alley. The officer chased defendant. The evidence was undisputed that while defendant was in the alley, a shot was fired. Defendant denied firing the shot and denied possession of a gun at any time in question. Officer Parrish, who was then at the entrance to the alley, testified that he could not tell if defendant fired the shot. The officer did say that no one else was in the alley at the time.

The evidence of subsequent events was undisputed. Defendant turned left and ran in a northerly direction. The officer saw defendant again as he ran across a street into a park. The officer ordered defendant to stop and defendant did so. The officer arrested defendant, handcuffed him and searched him finding no weapon on him. Meanwhile a garbage truck passed through the alley, after which another police officer searched the alley and found a pistol in the alley near a trash barrel. A shell casing was found 17 feet south of the pistol and a projectile was also found in the alley. A State's expert criminalist testified that in his opinion, the shell casing and the projectile had been fired from the pistol.

Section 24-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)) states in part:

"(a) A person commits the offense of unlawful use of weapons when he knowingly:

(10) Carries or possesses in a vehicle or on or about his person 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."

Section 12-2(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 12-2(a)(1)) states in part:

"A person commits an aggravated assault, when, in committing an assault, he:

(1) Uses a deadly weapon."

Defendant's contention that the evidence failed to support the verdict is based upon his theory that the evidence of the possession of the pistol was too weak and that no evidence was presented to negate the statutory exception to the offense of illegal possession of a dangerous weapon that the offense does not occur if the possession takes place on the accused's "own land or in his own abode or fixed place of business."

Defendant emphasizes that Marshall's testimony was the only direct evidence that defendant possessed the pistol. Although Marshall claimed to have drunk only a few beers, two customers testified to his having been rowdy earlier at a bar at the St. Jude Hotel. Marshall was unable to remember having been in that establishment with others and having looked for a person named Ray Ellis as those witnesses claimed. He was also unable to describe in detail the occurrence where the defendant pointed the pistol at him. Officer Parrish and another officer who saw part of the scuffle between defendant and Marshall did not see defendant have a gun in his possession. The evidence indicated that the officers were across the street from Cannon's and although they used a searchlight, they would not necessarily have seen a pistol, had defendant pointed one at Marshall.

• 1 The issue thus was a question of comparing the credibility of Marshall against that of the defendant; a matter in which the jury's determination is entitled to great weight (People v. Daily (1968), 41 Ill.2d 116, 242 N.E.2d 170, cert. denied (1969), 395 U.S. 966, 89 S.Ct. 2112, 23 L.Ed.2d 752). The existence of a discharged pistol in the alley shortly after defendant left and the evidence of defendant's flight are circumstances corroborating Marshall's testimony. The evidence was sufficient for the jury to find beyond a reasonable doubt that defendant had possessed a loaded pistol at the time in question.

• 2 It was a material element of the charge of unlawful use of weapons that the possession occurred while defendant was not `"on his own land or in his own abode or fixed place of business.'" (People v. Chmilenko (1976), 44 Ill. App.3d 1060, 1062, 358 N.E.2d 1247.) The confrontation with Marshall took place in the entryway of Cannon's and then defendant walked down a public sidewalk and then down an alley. Circumstantial evidence indicated that he fired the pistol in the alley and threw it down, thus possessing the gun while on public land. Furthermore, he testified that he was a construction worker who lived at the St. Jude Hotel. When ...


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