{ "id": 5310171, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Spain (Ralph Parrants), Defendant-Appellant", "name_abbreviation": "People v. Spain", "decision_date": "1974-11-08", "docket_number": "No. 60089", "first_page": "377", "last_page": "382", "citations": [ { "type": "official", "cite": "24 Ill. App. 3d 377" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "149 N.E. 241", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "318 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5151977 ], "opinion_index": 0, "case_paths": [ "/ill/318/0293-01" ] }, { "cite": "434 F.2d 415", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2220284 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/434/0415-01" ] }, { "cite": "97 U.S. 381", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3377051 ], "weight": 2, "year": 1878, "opinion_index": 0, "case_paths": [ "/us/97/0381-01" ] }, { "cite": "279 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 389", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2839987 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0389-01" ] }, { "cite": "320 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "23 Ill.App.3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2504802 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0810-01" ] }, { "cite": "320 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "23 Ill.App.3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2504618 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0762-01" ] }, { "cite": "213 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "67 Ill.App.2d 292", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5289735 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/67/0292-01" ] }, { "cite": "271 N.E.2d 37", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "48 Ill.2d 446", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906557 ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0446-01" ] } ], "analysis": { "cardinality": 515, "char_count": 9839, "ocr_confidence": 0.736, "pagerank": { "raw": 1.5769418174980548e-07, "percentile": 0.6796859585249951 }, "sha256": "a65edc5ad5ab53b19c828bf8e2118fe9f9260a07bc293780a3792778cb944431", "simhash": "1:b0c13da4598574e2", "word_count": 1678 }, "last_updated": "2023-07-14T15:53:16.970085+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Spain (Ralph Parrants), Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is an appeal from a misdemeanor conviction for unlawful use of weapons. On appeal, defendant challenges the sufficiency of the complaint and further contends that he was a security guard and comes within a statutory exemption for such guards commuting from home to work within one hour of employment.\nOn June 1, 1972, at approximately 5:30 P.M., Officer Bally of the Chicago Police Department observed defendant, wearing a gun and holster at his side, in front of a residence at 5710 South' Marshfield Street, Chicago. Bally requested defendant\u2019s gun registration and state gun owner\u2019s identification. Defendant produced these two cards along with a third, showing that he was an employee of the Johnson Detective Agency. Defendant was then taken into custody and charged with unlawful use of weapons.\nPrior to trial, the State\u2019s Attorney asked leave to amend the complaint both as to the offense and as to defendant\u2019s name. Permission was granted, and the amended complaint charged defendant with carrying \u201ca firearm\u201d within the corporate limits of Chicago. The court, in granting the amendment, stated:\n\u201cLeave to amend granted, that you had in your possession a loaded firearm within the corporate limits of the city of Chicago and not on your own place of business.\u201d\nThe statute does, in fact, prohibit only the carrying of loaded firearms.\nAt trial, it was established that defendant resided at 225 West 107th Street and that he was at the address on South Marshfield \u201cvisiting my kids.\u201d Defendant further testified that he was on his way to work at a Walgreen Drug Store when he was arrested at 5:30 P.M. The store is located some six or seven blocks from the South Marshfield address, and defendant stated he was scheduled to begin work at 6 P.M. that evening. He was in uniform when arrested.\nDefendant introduced into evidence an employment card from the Johnson Detective Agency, various paycheck stubs from the agency, his time sheet for the week following the arrest, and a National Detective\u2019s Association identification card. The State stipulated that defendant was an employee of the Johnson Detective Agency at the time of the arrest.\nDefendant was found guilty of the offense of unlawful use of weapons and fined $100.\nOpinion\nWe will first consider the contention that the complaint as amended was fatally defective because the word \u201cloaded\u201d was omitted from the charge of unlawful use of weapons. This offense, as defined in section 24 \u2014 1(a) (10) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 \u2014 1(a) (10)), is as follows:\n\u201cUnlawful Use of Weapons\n(a) A person commits the offense of unlawful use of weapons when he knowingly:\n* # #\n(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.\u201d\nThe State makes no contention that the adjective \u201cloaded\u201d modifies only \u201cpistol\u201d and not \u201crevolver or other firearm.\u201d\nThe Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111\u2014 3(a)(3)) provides that:\n\u201c(a) A charge shall be in writing and allege the commission of an offense by:\ntt # #\n(3) Setting forth the nature and elements of the offense charged.\u201d A complaint that does not set forth the nature and elements of the offense charged fails to allege the commission of an offense and is thus subject to dismissal under the provisions of Section 114 \u2014 1(a)(8) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114 \u2014 1 (a)(8); People v. Abrams, 48 Ill.2d 446, 271 N.E.2d 37; People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.), Such error is not waived by failure to object at trial and may be attacked at any time. People v. Graves, 23 Ill.App.3d 762, 320 N.E.2d 95; People v. Billingsley, supra.\nHere, the failure to charge in the complaint that the gun was loaded was a failure to allege an essential element of the offense. As stated on rehearing in People v. Pujoue, 23 Ill.App.3d 810, 320 N.E.2d 78, at page 2 of the slip opinion:\n\u201cIn the instant case, the complaint failed to aUege that the pistol was loaded. Inasmuch as the term \u2018a firearm to wit: 32 Cal H & R Revolver does not necessarily involve a loaded firearm in violation of the statute, we hold that the complaint failed to allege an offense.\u201d\nNor does the correct oral reading of the statute by the judge on the motion to amend mitigate the error. Section 111 \u2014 3(a)(3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111 \u2014 3(a)(3)) requires that the charge be \u201cin writing\u201d and that the written charge set forth all the essential elements of the offense.\nWe conclude that the complaint here fails to state an offense, and where a conviction rests on such a complaint we will reverse without remand. People v. Pujoue, supra; People v. Leach, 3 Ill.App.3d 389, 279 N.E.2d 450.\nIn view of this holding, it will not be necessary to discuss the remaining issue of the applicability and availability of the statutory exemption of security guards.\nFor the reasons stated, the judgment is reversed,\nReversed.\nDRUCKER and LORENZ, JJ., concur.\nSUPPLEMENTAL OPINION\nMr. PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nIn this appeal from a misdemeanor conviction for unlawful use of weapons, we filed an opinion reversing the judgment of the trial court. We. held, under the authority of People v. Pujoue, 23 Ill.App.3d 810, 320 N.E.2d 78, that the amended complaint was fatally defective in that it did not state an offense because the word \u2018loaded,\u201d a necessary element of the offense, was omitted from the charge of unlawful use of weapons. Subsequent to the filing of our opinion, a question came to our attention which was not raised in the briefs or on oral argument; namely, whether defendant may have been convicted under a statute not in effect oil the date of the offense charged.\nIn this regard, we note that defendant was originally charged with a violation of section 24 \u2014 1(a)(4) (Ill. Rev. Stat. 1971, ch. 38, par. 24\u2014 1(a)(4)), but at the commencement of his trial the State was given leave to amend the complaint both as to offense and as to defendant\u2019s name. The amended complaint under which he was tried and convicted charged a violation of section 24 \u2014 1(a) (10), which did not take effect until July 1, 1972; whereas, the acts complained of took place 1 month before, on June 1,1972.\nThe rule regarding the effective date of statutes is well-settled. As stated in 34ILP Statutes \u00a7 193 (1958):\n\u201cStatutes generally will not be construed retroactively unless it clearly appears that such was the legislative intent.\u201d\nThere is no indication of such legislative intent here, and we believe any such retroactive construction would be violative of the ex post facto rule. Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104 (1878); United States v. Casson, 434 F.2d 415 (D.C. Cir. 1970).\nConsequently, subsection (10) not being in effect on June 1, 1972, the amended complaint here failed to state an \u201coffense\u201d as defined in section 102 \u2014 15 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 102 \u2014 15), and conviction thereunder was plain error (People v. Minto, 318 Ill. 293, 149 N.E. 241; People v. Graves, 23 Ill.App.3d 762, 320 N.E.2d 95, which a reviewing court may consider even though it was not brought to the attention of the trial court (Supreme Court Rule 615(a), Ill. Rev. Stat., ch. 110A).\nThus, we may properly take note of such error here and, although in our original opinion we have already reversed the judgment of the trial comt, defendant\u2019s conviction under a statute not in effect was additional error which, in itself, requires reversal. See People v. Minto, supra; People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.\nFor this additional reason, we adhere to our original opinion reversing the judgment of the trial court.\nReversed.\nDRUCKER and LORENZ, JJ., concur.\nDefendant had been misnamed Ralph Spain, and the amendment stated his correct name, Ralph Parrants.\n\u201c(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:\n* * *\n(8) The charge does not state an offense.\u201d\n\u201c\u00a7 24 \u2014 1. \u2022 * * * (a) A person commits the offense of unlawful use of weapons when he knowingly:\n(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm.\u201d\nDefendant had been misnamed Ralph Spain, and the amendment stated his correct name, Ralph Parrants.\n\u201c\u00a7 24 \u2014 1. * 6 * (a) A person commits the offense of unlawful use of weapons when he knowingly:\n\u00bb e \u00bb\n(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.\u201d\nSection 24 \u2014 1(a) was amended by Public Act 77 \u2014 1683, effective July 1, 1972, which added subsection (10).\n\u201c\u00a7 102 \u2014 15. \u2018Offense\u2019 means a violation of any penal statute of this State.\u201d", "type": "majority", "author": "Mr. PRESIDING JUSTICE SULLIVAN Mr. PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Spain (Ralph Parrants), Defendant-Appellant.\n(No. 60089;\nFirst District (5th Division)\nNovember 8, 1974.\nSupplemental opinion filed December 13, 1974.\nRehearing denied January 3, 1975.\nJames J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0377-01", "first_page_order": 401, "last_page_order": 406 }