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People v. Myers

OPINION FILED NOVEMBER 19, 1981.

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

v.

ERNEST MYERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. ANGELO F. PISTILLI, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The defendant, Ernest Myers, appeals from the judgment of conviction for armed robbery entered against him in the Circuit Court of Will County following a jury trial. In his appeal, the defendant raises but one issue: Whether the trial court erred by giving the jury a non-IPI instruction as to when a person is armed with a dangerous weapon.

At the trial, the defendant conceded he was guilty of robbery but, testifying the gun was not loaded, contested the question of whether he was armed with a dangerous weapon at the time of the robbery. The trial court instructed the jury as follows:

"A person commits the crime of armed robbery who, while armed with a dangerous weapon, takes property from the person or presence of another by the use of force or by threatening the imminent use of force." Illinois Pattern Jury Instructions, Criminal, No. 14.01 (1968) (hereinafter IPI).

"To sustain the charge of armed robbery, the State must prove the following propositions;

That the defendant took United States Currency from the person or presence of Diane Campbell; and

That the defendant did so by the use of force or by threatening the imminent use of force; and

That the defendant was armed with a dangerous weapon.

If you believe from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty." (IPI Criminal No. 14.02.)

The trial court also gave the following non-IPI instruction over defense objection:

"A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwised [sic] armed with a bludgeon, or other weapon of like character."

We agree with the defendant that a non-IPI instruction should not be given unless the relevant IPI instructions fail to accurately state the law. (Ill. Rev. Stat. 1979, ch. 110A, par. 451(a).) We also agree that what constitutes a dangerous weapon for armed robbery does not necessarily constitute a dangerous weapon under the armed violence statute, wherein categories of dangerous weapons are specified. People v. Watkins (1981), 94 Ill. App.3d 749, 419 N.E.2d 54.

• 1 Therefore, we agree that it was improper for the trial court to instruct the jury as it did. A comparison of the new IPI Criminal Nos. 4.17 and 11.19 will demonstrate this error. No. 4.17 is the definition for a dangerous ...


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