APPEAL from the Circuit Court of Henry County; the Hon. JOSEPH
G. CARPENTIER, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 12, 1980.
Following a shooting incident at a tavern, defendant Jerry Van Winkle was charged by information with armed violence, attempt murder, and aggravated battery. After a jury trial he was convicted of those offenses and of battery and was sentenced on the armed violence conviction to a determinate term of imprisonment of 6 years.
At trial the State's evidence established that on March 16, 1979, sometime after 11 p.m., defendant entered Ann's Tavern in Kewanee accompanied by a small boy. He asked the boy, "Do you see him here?" or "Is that him?" The boy pointed at Timothy Melchouri and replied, "Yes." Defendant approached Melchouri and asked him, "Have you been fucking with my kid?" Melchouri replied in the negative, and defendant pulled a gun from his pocket and shot Melchouri in the neck. Several witnesses described defendant's speech as clear and deliberate, not slurred.
For the defense, Jerry Scott gave testimony that tended to show defendant was drunk at the time of the incident. Defendant's wife testified that on the date in question, before the incident, she told defendant that their two sons, Jerry Jr. (9 years old) and Jimmy (7 years old), told her that they had been in a house down the street earlier that day where some guys had offered them beer, and told them to cuss and to make finger gestures on a television screen there. The guys also told them there were some kids buried in the house and gave them a dollar not to tell anyone. Continuing with defendant's wife's testimony, Jerry Jr., while in tears, repeated the story to defendant. After telephoning the police, while somewhat drunk, defendant left the house with Jerry Jr.
Defendant's first two arguments on appeal concern the construction and validity of section 33A-2 of the Criminal Code of 1961, which provides:
"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.)
The felony which served as the basis for defendant's armed violence conviction was the aggravated battery of Melchouri under section 12-4(b)(1) of the Code, which provides:
"A person who, in committing a battery * * *:
(1) Uses a deadly weapon * * * commits aggravated battery." (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b).)
Defendant first argues that aggravated battery under section 12-4(b)(1), a Class 3 felony (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(d)), should not be considered a "felony" for purposes of the statute defining armed violence. He maintains the legislature did not intend the use of a pistol to be used as an aggravating factor twice, i.e., to convert battery, a Class A misdemeanor (Ill. Rev. Stat. 1979, ch. 38, par. 12-3(b)), into aggravated battery, a Class 3 felony, and then into armed violence, a Class X felony (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 and 33A-3).
• 1 We disagree. Prior to its amendment in 1977 (1977 Ill. Laws 3264, § 1), section 33A-2 provided that a person committed armed violence when, while armed with a dangerous weapon, he performed any act prohibited by certain enumerated sections of the Criminal Code, including section 12-2 (aggravated assault), but not including section 12-1 (assault) (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). In People v. Graham (1975), 25 Ill. App.3d 853, 323 N.E.2d 441, the defendant was convicted of armed violence under this statute. The offense which served as the basis for the armed violence charge was aggravated assault under section 12-2(a)(1), which provided:
"A person commits an aggravated assault, when, in committing an assault, he: (1) Uses a deadly weapon." (Ill. Rev. Stat. 1971, ch. 38, par. 12-2(a).)
Graham made essentially the same argument advanced in the instant case, that the legislature did not intend the use of a deadly weapon to be used as an aggravating factor twice to convert assault into aggravated assault and then into armed violence. This court noted that at the same time the legislature adopted the armed violence statute, it amended the aggravated assault statute to exclude section 12-2(a)(1), assault with a deadly weapon. We noted that this action seemed logical since the weapon, the aggravating factor in armed violence, was already present in section 12-2(a)(1). We pointed out, however, that the legislative action left a gap in the criminal law since assault with a deadly weapon was then only a simple assault. Finally, we concluded that ...