Appeal from the Circuit Court of McLean County; the Hon. Keith
E. Campbell, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On April 3, 1982, after a trial by jury in the circuit court of McLean County, the court entered judgment on a verdict finding defendant, Moses Free, guilty of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, par. 24-1(a)(10)). The indictment charged a Class 3 felony, because it was alleged defendant committed the offense within five years of his release from the penitentiary after a conviction for murder. On April 29, 1982, the court sentenced defendant to two years' imprisonment which was to be served concurrently with a sentence defendant was then serving.
On appeal, defendant asserts: (1) his guilt was not proved beyond a reasonable doubt; (2) the trial court abused its discretion by denying him a continuance; (3) his conviction should be reduced to a misdemeanor; (4) the court failed to consider the possibility of placing defendant on probation; and (5) the mittimus should be amended to give him credit for time incarcerated prior to trial.
Section 24-1(a)(10) of the Criminal Code of 1961 states that a person commits the offense of unlawful use of weapons when he knowingly:
"Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 24-1(a)(10).
The evidence relied upon to support defendant's conviction is undisputed. On November 21, 1981, defendant was employed as a dishwasher at Maxwell's restaurant in Bloomington. While working there that evening, defendant was engaged in an argument with another employee who, in the course of the argument, cut defendant's arm with a knife. Defendant then left the restaurant but later returned and was seen in the back of the kitchen carrying a pistol. Defendant approached the employee who had knifed him, whereupon the latter ran from the kitchen into the front of the restaurant. Defendant followed but returned to the kitchen and then went out the back door into the restaurant parking lot. He entered his car and started to leave, but he was stopped by police before his car left the parking lot.
The issue as to whether the jury could have properly found defendant's guilt to have been proved beyond a reasonable doubt, turns upon the legal question of whether, when defendant carried a pistol in the restaurant of his employment and its adjacent parking lot, he was in his "fixed place of business" within the exception of section 24-1(a)(10) of the Criminal Code of 1961. We conclude that he was not and hold that the proof of his guilt was sufficient.
In People v. Cosby (1969), 118 Ill. App.2d 169, 255 N.E.2d 54, the only reported case interpreting the meaning of the phrase "fixed place of business" in section 24-1(a)(10), the court held that a cabdriver while driving a taxicab was not in his "fixed place of business," noting that the vehicle would move about rather than being fixed to one place. However, cases from other jurisdictions have held that similar language does not create an exception which would permit the carrying of a dangerous weapon by an employee who is at his place of work but has no proprietary interest in the business.
In Berkley v. United States (D.C. App. 1977), 370 A.2d 1331, the defendant was found guilty of violating a weapons statute similar to Illinois' and argued that he was on his place of business. The defendant was a lab technician in the blood unit of a local hospital and was in possession of a hand gun in the hospital when he was arrested. The court of appeals affirmed his conviction stating, "it cannot be assumed that [Congress] intended, in a jurisdiction where there are countless numbers of employees reporting every day to governmental agencies, to write in an exception permitting every employee to carry a loaded pistol while working." (370 A.2d 1331, 1333.) The court stated that the fixed place of business exemption was applicable only to those who have a controlling, proprietary or possessory interest in the business premises in question. Since the defendant had no such interest in the hospital's blood unit the defendant's conviction was affirmed.
In State v. Valentine (1973), 124 N.J. Super. 425, 307 A.2d 617, the defendant was convicted of carrying a weapon in a public place without a permit. Defendant was the manager of a bar and had complete control of the business from 6 p.m. to 2 a.m. when the owner was not present. He had a loaded revolver in his pocket when the police searched him while he was working behind the bar. The defendant argued that he was about his place of business and therefore was exempted from the weapons statute. The appellate court noted that the defendant had no proprietary interest in the bar and there was no evidence that the revolver had been acquired by the owner of the bar and in the possession of the defendant in connection with the operation of the business. The defendant's conviction was affirmed.
In People v. Francis (1974), 45 App. Div.2d 431, 358 N.Y.S.2d 148, the defendant pleaded guilty to attempted possession of a weapon. Defendant was arrested while on his job in the United States Post Office attached to John F. Kennedy Airport. The court stated that defendant had no authority or delegation to carry the revolver and the possession of the gun was not in any way in furtherance of any function or duty being performed by him for the postal service. His conviction was affirmed.
• 1 Unless the employee carrying the weapon needs to use the weapon in his employment, such as is the case with a guard or night-watchman, little authority supports the view that the employee comes within statutory exemptions similar to that in section 24-1(a)(10) (Annot., 57 A.L.R.3d 938, 942, 960 (1974)). The logic for this is much as stated in Berkley, that legislative bodies cannot be assumed to have intended to permit all employees to carry weapons while at work. The drafting committee for the Criminal Code of 1961 stated, in reference to the rationale for article XXIV of the Code, that:
"The possession and use of weapons inherently dangerous to human life constitutes a sufficient hazard to society to call for prohibition unless there appears appropriate justification created by special circumstances." (Ill. Ann. Stat., ch. 38, par. 24-1, Committee Comments, at 83 (Smith-Hurd 1977).)
We conclude that neither the drafting committee nor the legislature intended that each employee, while at his place of work, should be entitled to possess a weapon. No "special circumstances" would have required that. Rather, we deem the committee and the legislature to have intended that a ...