{ "id": 2501785, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. William House, Defendant-Appellant", "name_abbreviation": "People v. House", "decision_date": "1975-06-13", "docket_number": "No. 60454", "first_page": "994", "last_page": "997", "citations": [ { "type": "official", "cite": "29 Ill. App. 3d 994" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "161 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill.App.2d 10", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5206135 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/23/0010-01" ] }, { "cite": "220 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill.App.2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2583829 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/73/0001-01" ] }, { "cite": "94 N.E.2d 320", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "406 Ill. 419", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635026 ], "opinion_index": 0, "case_paths": [ "/ill/406/0419-01" ] }, { "cite": "43 A.L.R.2d 492", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "pin_cites": [ { "page": "504" } ], "opinion_index": 0 }, { "cite": "164 N.E. 167", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "332 Ill. 617", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5214294 ], "opinion_index": 0, "case_paths": [ "/ill/332/0617-01" ] }, { "cite": "152 N.E. 537", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "322 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5174448 ], "opinion_index": 0, "case_paths": [ "/ill/322/0051-01" ] }, { "cite": "97 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "342 Ill.App. 621", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5062048 ], "opinion_index": 0, "case_paths": [ "/ill-app/342/0621-01" ] } ], "analysis": { "cardinality": 527, "char_count": 8881, "ocr_confidence": 0.72, "pagerank": { "raw": 2.2301949311262715e-07, "percentile": 0.7789116276663234 }, "sha256": "8afa59d027c7645f3239470891e1d83da162c84454e119de17db43dcc8ea6a7f", "simhash": "1:160e69ef668721bb", "word_count": 1526 }, "last_updated": "2023-07-14T17:27:57.823802+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. William House, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nDefendant was charged in an indictment with carrying \u201cconcealed on his person a revolver\u201d within 5 years of his conviction for a felony (Ill. Rev. Stat. 1973, ch. 38, pars. 24 \u2014 1(a)(4)). Following a bench trial he was found guilty as charged and sentenced to a term in the penitentiary of 1 year and 1 day. On appeal he contends that (1) there was a \u201cfatal variance\u201d between the allegations in the indictment and the evidence adduced at trial, (2) the indictment failed to charge an offense, and (3) the court erred in failing to hold a hearing to determine his competency to stand trial.\nBy stipulation the evidence at trial consisted in large part of the testimony taken at the preliminary hearing and at the hearing on a s'uppression-of-evidence motion.\nAt the preliminary hearing Chicago Police Officer Roger Wilson testified that at 9:30 P.M. on March 1, 1973, he received a radio call to proceed to 4307 West Van Bur\u00e9n Street. On Iris arrival he observed a group of people gathered at the corner of Van Bur\u00e9n and Kildare. They told him that a man wearing a green hat had fired a gun in the alley behind the 4300 block of Van Bur\u00e9n. Wilson and his partner entered the alley where they observed defendant, who was wearing a green construction helmet, throw something into a garbage can. Defendant was standing approximately four paces from the garbage can when he tossed the object into it. Defendant then moved into the center of tire alley to a position beside their squad car approximately 12 feet from the garbage can. Wilson\u2019s partner reached into the can and recovered a chrome-plated .38-caliber revolver. They then placed defendant under arrest for unlawful use of weapons. Wilson subsequently learned that defendant had been convicted of a felony \u201cwithin the last 5 years.\u201d In addition to defendant there were two other men and a woman in the alley. Defendant was the only man standing close to the garbage can.\nOfficer Wilson was called by defendant at the hearing on the suppression motion and testified that defendant was standing within 6 to 8 feet of a street light. He had been informed that gunshots had been fired. He had not heard any gunshots. After arresting defendant and advising him of his rights, Wilson asked him why he had fired the gun. Defendant, in response, identified the gun as his and said that he dropped it.\nOfficer Hans Heitman was called by defendant at the suppression hearing and testified that he was Officer Wilson\u2019s partner. When they entered the alley, his attention was drawn to defendant because he dropped an object, which appeared to be a gun, into a trash can. He was 5 feet from defendant when he saw him drop the gun. Heitman retrieved the gun by reaching \u201cnot too much\u201d into the can, and defendant was placed under arrest. After being taken into custody, defendant \u201cadmitted to having the gun.\u201d\nRobert Williams was called by defendant at the suppression hearing and testified that he is a friend of defendant. On March 1, 1973, he accompanied defendant to a building at 4307 West Van Bur\u00e9n which defendant was remodeling. They found that someone had broken into the building and stolen four or five bathtubs. They found the bathtubs next door and, with the help of a boy, carried them back to defendant\u2019s building. He did not hear any shots in the alley. When the police arrived, there were 30 or 40 people at the scene. He saw defendant throw a liquor bottle into a trash can. Williams testified that he was wearing his brother-in-law\u2019s green construction helmet.\nIt was stipulated that defendant had been found guilty of burglary on September 27, 1968.\nAt trial defendant testified that he lives at 4907 South Princeton and is in the barbecue business at 2155 West Warren. On March 1, 1973, he went to a building which he is remodeling at 4307 West Van Bur\u00e9n because he heard it had been burglarized. He discovered that four bathtubs had been taken. He found them in a garage down the alley from his building. After notifying the owner of the garage, he got two men to help him return the bathtubs to his building. To show his appreciation for their assistance he gave one of them money to buy liquor. When the man returned, they remained in the alley and drank. He noticed police officers approaching and threw a half-pint bottle of Scotch into a garbage can. A police officer reached into the garbage can and removed a pistol. He made no statements to the police after he was arrested.\nThe trial judge found him guilty as charged, stating:\n\u201c* * * it appears that prior to the arrival of the officers on the scene this weapon was concealed. * * It appears to this court if a person has a weapon concealed on or about his person, and if he then withdraws the weapon from concealment for whatever purpose, the fact that he then displayed the weapon does not remove him from the sanction of the criminal code.\u201d\nThe court then ordered a presentence investigation, feeling it inappropriate to immediately proceed with a hearing on aggravation and mitigation. Defendant protested his innocence and pointed to inconsistencies in the State\u2019s case. The court responded that it realized defendant was \u201cupset\u201d due to the fact that his daughter recently died. The court further stated that in order to impose an \u201cintelligent sentence\u201d it would be best to proceed at a time when defendant was \u201csober\u201d and \u201cin condition to cooperate with me or counsel.\u201d\nOpinion\nThe trial court found that the circumstances surrounding defendant\u2019s encounter with Officers Wilson and Heitman led to the inference that he had been carrying a concealed weapon prior to the arrival of the police on the scene. Defendant initially contends that his conviction arising from this finding must be reversed because it is erroneous as a matter of law.\nTire State concedes that a court may not infer the prior concealment of a weapon from an individual\u2019s plain view possession of it. (See People v. Beason, 342 Ill.App. 621, 97 N.E.2d 603.) It argues, however, that defendant\u2019s conviction may be grounded on the theory that by throwing the revolver into the garbage can he concealed the weapon after the police entered the alley.\nIn order to secure defendant\u2019s conviction for a violation of section 24\u20141(a)(4), the State was required to prove that the revolver was readily accessible to him for his immediate use. (People v. Niemoth, 322 Ill. 51, 152 N.E. 537; People v. Lake, 332 Ill. 617, 164 N.E. 167.) The essence of this element of the offense is that the weapon must be concealed within the accused\u2019s convenient control so that he or she could promptly use it if driven to do so by any violent motive. (See 43 A.L.R.2d 492, 504.) Applying this rule, the supreme court in People v. Liss, 406 Ill. 419, 94 N.E.2d 320, held the proof insufficient to convict where undisputed police testimony showed that a pistol was discovered \u201clying under the front seat about the middle of the car,\u201d and the defendant was driving the car. The court stated that the pistol was not readily accessible to the defendant since it would have required an appreciable change in position by the defendant to reach it. See also People v. Adams, 73 Ill.App.2d 1, 220 N.E.2d 17; People v. McClendon, 23 Ill.App.2d 10, 161 N.E.2d 584.\nIn the instant case the record reveals that defendant was standing at the rear of his property, a building on the West Side which he was rehabilitating. He was there due to reports that the building had been burglarized. As the two police officers approached, defendant threw a revolver which he had been openly holding into a garbage can standing several paces from him. Defendant then moved further away from the garbage can to a position in the center of the aUey beside the police car. Officer Heitman walked to the partiaUy fuU receptacle, reached into it and retrieved the gun. Prior to defendant\u2019s act of throwing the gun, it had not been concealed. After defendant had thrown it into the garbage can, the gun was not accessible for immediate use. Clearly, to retrieve the weapon lying in a partiaUy full garbage can a dozen feet away would have required a change of position much more appreciable than that required of the defendant in Liss. We believe that the State failed in its proof of this element, and therefore defendant\u2019s conviction must be overturned.\nDue to our disposition of this issue, we need not discuss the other contentions raised by defendant. The judgment entered below is reversed.\nReversed.\nLORENZ and SULLIVAN, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE DRUCKER" } ], "attorneys": [ "Francis E. Andrew, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Donald M. Devlin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. William House, Defendant-Appellant.\n(No. 60454;\nFirst District (5th Division)\nJune 13, 1975.\nFrancis E. Andrew, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Donald M. Devlin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0994-01", "first_page_order": 1018, "last_page_order": 1021 }