APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After trial by jury in Will County the defendant Robert Chapman was convicted of the offense of armed robbery and sentenced to a term of imprisonment of not less than 4 nor more than 5 years.
The facts pertinent to this appeal establish that the defendant, along with James Livsey, on June 16, 1977, attempted to perpetrate an armed robbery of the office of the Farmers Insurance Group located at New Lenox, Illinois. Upon entering the office the defendant and Livsey first encountered an employee, Janet Dutter. Livsey was armed with a gun which he first pointed at Mrs. Dutter and subsequently put against her back as he moved her towards and into a closet. While in the closet Mrs. Dutter heard Livsey asking another employee, Mr. Englert, where the money was, and then, in reply to a question by Livsey, another voice replied, "I have both barrels cocked." Livsey then came to the closet and took $467 plus various identification cards from Mrs. Dutter's wallet.
Livsey and his companion, who was later established as being the defendant, left the scene of the crime. A chase ensued which resulted in the arrest of both individuals.
On the same day a search by the sheriff's department resulted in the finding of Mrs. Dutter's identification cards and a .38-caliber revolver along the side of the road where the law enforcement officials had pursued Livsey and the defendant as they attempted to make their escape. The question as to the identification of Livsey and the defendant being the individuals who were present at the scene of the robbery is not an issue in this appeal. During the course of the defendant's trial, which had been severed from that of Livsey, it was the testimony of Mrs. Dutter that the gun found by the roadside looked like the gun used by Livsey.
The single issue presented in this appeal is whether in an armed robbery case where it is clear that the weapon used was an unloaded revolver, was the trial court in error in instructing the jury that a person is considered armed with a dangerous weapon when he possesses a handgun.
More succinctly stated, it is the contention of the defendant that the trial court erred in removing from the province of the jury the question as to whether the revolver was or was not a dangerous weapon.
This issue is presented as the result of various actions on the part of the trial court and counsel during the trial of the defendant. The trial court instructed the jury that the State had to prove the following propositions beyond reasonable doubt:
"That James Livsey took United States Currency from the person or presence of Janet Dutter; and
That James Livsey did so by the use of force or by threatening the imminent use of force; and
That James Livsey was armed with a dangerous weapon.
That Robert Chapman, during the commission of the crime of armed robbery by James Livsey, with the intent to promote and facilitate the commission of the crime of armed robbery by James Livsey, aided the said James Livsey in the commission of the said offense of armed robbery."
The above instruction directed the jury to determine as one of the elements of the crime as to whether or not the State had proved beyond a reasonable doubt that the accomplice Livsey was armed with a dangerous weapon.
The trial court, in defining for the jury a dangerous weapon and apparently in reliance upon the definition of such term in the armed violence statute (Ill. Rev. Stat. 1975, ...