Appeal from the Circuit Court of Jackson County, the Hon.
Richard E. Richman, Judge, presiding.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 6, 1981.
In the circuit court of Jackson County, a four-count information, as amended, charged defendant Colie W. Haron with one count of armed violence, two counts of aggravated battery, and one count of unlawful use of weapons. In a separate proceeding, also in the circuit court of Jackson County, defendant Robert G. Kehm was charged by information with one count of illegal delivery of cannabis and one count of armed violence. Each defendant moved to dismiss the armed-violence count on the ground that section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) was unconstitutional. Sua sponte the circuit court consolidated the cases as to the constitutional issues raised by the motions, declared article 33A of the Criminal Code of 1961 unconstitutional, and dismissed the armed-violence charges. The People appealed directly to this court. 73 Ill.2d R. 603.
The dismissed counts charged that defendant Haron, "while armed with a dangerous weapon, namely a pistol, performed acts prohibited by Chapter 38, Section 12-4(b)(1), Illinois Revised Statutes, in that he committed the felony offense of aggravated battery by causing great bodily harm to Michael Banks and Tony Carter * * *," and that defendant Kehm "while armed with a dangerous weapon, namely a .38 caliber derringer, committed the felony offense of Illegal Delivery of more than five hundred (500) grams of a substance containing cannabis by knowingly and unlawfully delivering more than five hundred (500) grams of a substance containing cannabis to Marc Oliva and James Temple * * *."
Article 33A of the Criminal Code of 1961 provides:
"Sec. 33A-1. Definitions. (a) `Armed with a dangerous weapon'. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon. (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character. (c) A category II weapon is a bludgeon, blackjack, slungshot, sand-bag, sandclub, metal knuckles, billy or other dangerous weapon of like character."
"Sec. 33A-2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law."
"Sec. 33A-3. Sentence. (a) Violation of Section 33A-2 with a Category I weapon is a Class X felony. (b) Violation of Section 33A-2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A-2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty." Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 to 33A-3.
Although the circuit court held article 33A unconstitutional on a number of grounds, defendants' attack on its validity is more limited. They contend first that it is unconstitutionally vague and overbroad because it fails to provide notice whether the dangerous weapon must be used to facilitate the commission of a nonviolent offense, and for the reason that it fails to provide notice that the severity of an offense may be doubly enhanced because a dangerous weapon was employed.
The People contend that because he was charged with a crime of violence, defendant Haron is without standing to attack the validity of the statute on the ground that it permits armed violence to be charged by reason of the commission of a nonviolent felony while armed with a dangerous weapon. Defendant Kehm, charged with armed violence predicated upon his carrying a derringer during the commission of a nonviolent crime, also contends that the statute is overbroad. Since we must decide the issue of overbreadth with regard to nonviolent crimes whether or not defendant Haron has standing, we need not further consider the question of Haron's standing.
Concerning the issue of overbreadth, defendants suggest that in keeping with the rule that a statute should be construed so as to eliminate doubts as to its validity, article 33A should be construed to "require that the weapon be utilized to facilitate an offense." They point out that there is no allegation that defendant Kehm used the weapon to facilitate delivery of cannabis or that he was not lawfully in possession of the gun.
In Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 350, the court said:
"It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports."
See also Franzese v. Trinko (1977), 66 Ill.2d 136.
Section 33A-2 prohibits the commission of any felony "while armed with a dangerous weapon." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.) Section 33A-1 defines the phrase "armed with a dangerous weapon" to include any person who "carries on or about his person or is otherwise armed with a category I or category II weapon." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-1.) The language of these sections does not require that there be a connection between the underlying felony and the fact that the felon was armed with a dangerous weapon while he committed the felony.
We note that a number of other States have weapons statutes comparable to the one here involved, in that they ostensibly require no connection between the predicate offense and the presence of a weapon. (See, e.g., Ala. Code sec. 13-6-151 (1977); Cal. Penal Code sec. 12022 (Deering 1980); Del. Code Ann. tit. 11, sec. 1447 (1979); Fla. Stat. sec. 790.07 (West Supp. 1981); Ga. Code sec. 26-9908a (1978); Mich. Comp. Laws Ann. sec. 750.227b (1980-81 Supp.); 18 Pa. Cons. Stat. Ann. sec. 6103 (Purdon 1973); R.I. Gen. Laws sec. 11-47-3 (1980 Supp.); S.C. Code sec. 16-23-490 (1977); S.D. Codified Laws Ann. sec. 22-14-13 (1979); Tenn. Code Ann. sec. 39-4923 (1980 Supp.); Vt. Stat. Ann. tit. 13, sec. 4005 (1974); Wash. Rev. Code Ann. sec. 9.41.025 (1977); Wis. Stat. Ann. sec. 939.63 (West Supp. 1981); Wyo. Stat. sec. 6-11-116 (1980 Supp.).) Several other States prohibit, inter alia, the use of firearms in certain circumstances. (See, e.g., Colo. Rev. Stat. sec. 16-11-309 (1980 Supp.); Haw. Rev. Stat. sec. 706.660.1 (1976); Md. Code Ann. art. 27, sec. 36B(d) (1976); Mass. Ann. Laws ch. 265, sec. 18B (Michie 1980); Okla. Stat. Ann. tit. 21, sec. 1287 (West Supp. 1981).) A study of these divergent statutory formulations suggests the existence of two legislative approaches to the problem of armed violence. One approach prohibits and punishes the "use" of firearms in certain contexts. Of necessity in such States, there must be a connection between the underlying criminal offense and the presence of a weapon — the weapon must be used. The other approach, however, prohibits and punishes the mere possession or carrying of a weapon during the commission of a crime. In such States, the mere physical presence of a weapon while a crime is being committed is thought to be a sufficient threat to warrant proscription. (See Wayne County Prosecutor v. Recorder's Court Judge (1979), 406 Mich. 374, 390-91, 280 N.W.2d 793, 796.) The General Assembly has clearly taken the latter approach. There is no suggestion in the statutory language that the offense proscribed requires that there be "use" of a weapon in the commission of a felony. It is clear that in amending article 33A the General Assembly intended to extend the number of circumstances in which the presence of a weapon is ...