People v. Borgeson

• Decision Date: 06 June 1929
• Docket Number: No. 18330.,18330.
• Citation: 335 Ill. 136,166 N.E. 451
• Parties: PEOPLE v. BORGESON.
• Court: Illinois Supreme Court

335 Ill. 136

166 N.E. 451

PEOPLE

v.BORGESON.

No. 18330.

Supreme Court of Illinois.

April 20, 1929.

Rehearing Denied June 6, 1929.

Error to Municipal Court of Chicago; Edgar A. Jonas, Judge.

John Borgeson was convicted of carrying a pistol concealed on or about his person, and he brings error.

Affirmed.

W. W. O'Brien, of Chicago (Louis Greenberg, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Robert E. Crowe, State's Atty., of Chicago, and

James B. Searcy, of Springfield (Edward E. Wilson, and Lee R. La Rochelle, both of Chicago, of counsel), for the People.

DUNCAN, J.

The plaintiff in error, John Borgeson (hereinafter referred to as defendant), was sentenced in the municipal court of Chicago to confinement in the house of correction of the city of Chicago for the period of six months, and was adjudged to pay a fine of $100 and costs of prosecution, on an information charging him with carrying concealed on or about his person a pistol, in violation of section 4 of ‘An act to revise the law in relation to deadly weapons.’ Laws 1925, p. 340. The specific finding of the court recited in the judgment is that the defendant was guilty of unlawfully having on his person a concealed weapon, ‘to-wit, a loaded revolver, without a written permit to do so, on said plea of guilty.’ He prosecutes this writ of error for a reversal of the judgment.

Plaintiff in error contends: (1) That he should have been punished under section 56 of the Criminal Code (Smith-Hurd Rev. St. 1927, c. 38, § 160) for carrying concealed weapons, providing for a fine not exceeding $100; (2) that the statute under which he was sentenced is unconstitutional; (3) the finding of the court that he carried concealed on his person a loaded revolver will not support a conviction under an information charging him with unlawfully carrying concealed on or about his person a pistol, in violation of said section 4.

The record in this case shows: (1) That defendant was arraigned and pleaded guilty in manner and form as charged in the information, and that the court heard evidence of the witnesses as to aggravation and mitigation of said offense; (2) that defendant, being duly advised by the court as to his right of trial by jury, elected to waive a trial by jury, and that, by agreement of the parties, the cause was submitted to the court for trial without a jury, and there was a trial before the court without a jury, and the court heard the evidence of the witnesses, and found as aforesaid, and entered the judgment and sentence ‘on said plea of guilty.’ In the brief and argument for defendant these anomalous showings in the record are referred to, but there is no attempt whatever to explain the same or to inform us which of the showings in the record is correct. No reference whatever is made by the state in its brief and argument with reference to these contradictory showings in the record, but in the latter part of its argument there are these statements: ‘There was a trial, but what the evidence was does not appear, since defendant did not think it worth while to bring the evidence to this court. Hence we must assume that the evidence was amply sufficient to justify the court in finding defendant guilty.’ We will assume that defendant pleaded guilty and that the court heard evidence on such plea to determine the penalty that should be imposed upon him in accordance with the provisions of the statute on such a plea, as, in addition to said recitals, the record shows that the court explained to defendant the consequence of such plea, and that he still persisted in pleading guilty, and that such plea was received and entered of record.

Section 56 of the Criminal Code is in this language: ‘Whoever willfully disturbs the peace and quiet of any neighborhood or family, by loud or unusual noises, or by tumultuous or offensive carriage, threatening, traducing, quarreling, challenging to fight or fighting, or whoever shall carry concealed weapons, or in a threatening manner display any pistol, knife, slung-shot, brass, steel or iron knuckles, or other deadly weapon, shall be fined not exceeding $100.’

‘An act to regulate the traffic in deadly weapons, and to prevent the sale of them to minors,’ was approved April 16, 1881. Laws of 1881, p. 73. Section 1 of that act forbade the possession or sale of slung shots or knuckles, or other deadly weapons of that character, under penalty of not less than $10 nor more than $200. Section 2 forbade the sale, loan, or gift of firearms or other deadly weapons to minors, under penalty. Section 3 provided for register of sales by dealers in deadly weaspons, the form of register, and the penalty for failure to keep the same. Section 4 provided a penalty of not less than $25 or more than $200 for carrying concealed weapons upon or about the person of the character in the act specified, or a razor as a weapon, or for displaying or flourishing any deadly weapon. Section 7 provided that all acts and parts of acts in conflict with that act were thereby repealed. Section 4 of the act was held unconstitutional by this court in the case of People v. Horan, 293 Ill. 314, 127 N. E. 673, on the ground that its provisions were not within the title of the act. The entire act was expressly repealed by ‘An act to revise the law in relation to deadly weapons,’ passed in July, 1919. Laws of 1919, p. 431. The act under which the defendant was prosecuted was passed in 1925, and by the express provisions of section 9 of that act the act of 1919 was repealed. Laws of 1925, p. 339.

The acts of 1925 and 1919 are acts to revise the law in relation to deadly weapons. Section 1 of each act contains the same provisions, to wit: ‘It shall be unlawful for any person to carry or possess or sell, loan or give to any person, any black-jack, slungshot, sand-club, sand-bag, metal knuckles, bludgeon, or to carry or possess, with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stilleto or any other dangerous or deadly weapon or instrument of like character.’ Section 2 of the act of 1925 contains provisions requiring the register of sales at retail within this state of firearms of a size which may be concealed upon the person. Section 3 of the act of 1919 contained a similar provision with reference to registering sales of deadly weapons, not confining it to firearms of the character aforesaid. Section 3 of the act of 1925 prohibits the sale to aliens and to minors under the age of 18 years any firearms of a size which may be concealed upon the person. Section 2 of the act of 1919 prohibited the selling, or giving, loaning, hiring, or bartering in any manner, to any minor, any pistol, revolver, derringer, bowie knife, dirk, or other deadly weapon of like character capable of being secreted on the person. Section 4 of the act of 1925 prohibits any person from carrying concealed on or about his person a pistol, revolver, or other firearm, except certain officers therein named and other persons engaged in certain employments as agents, etc. Section 4 of the act of 1919 made it unlawful for any person to carry concealed upon his person any pistol, revolver, or other firearm without a written license therefor, issued as prescribed in that section. Section 5 of the act of 1925 prescribes a penalty by fine of not more than $300 or imprisonment in the county jail for a period of not more than one year, or both such fine and imprisonment, for the violation of any of the provisions of sections 1 and 4 of that act. Section 6 of the act of 1919 provided for a penalty of not less than $100 nor more that $1,000, or imprisonment in the county jail for not more than one year, or both such fine and imprisonment, for the violation of sections 1 and 4 of that act. The act of 1925 also imposes penalties for the violation of sections 2 and 3 of that act, and the act of 1919 imposed penalties for the violation of sections 2 and 3 of that act. Section 6 of the 1925 act provides, in substance, that any person having been convicted of murder, robbery, burglary, or assault with intent to commit a felony, who shall within five years thereafter violate the provisions of either section 1 or section 4 of that act, shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than one year nor more than ten years. Section 7 of the act of 1919 contained a provision similar to that of section 6 of the act of 1925. Section 7 of the act of 1925 provides that the act shall never be construed as depriving any citizen of the right to keep in his home or place of business any firearm reasonably necessary for the protection thereof, and section 8 provides that nothing contained in section 2 of the act shall be construed as in any way negativing or altering the effect of the provisions of section 3 thereof.

It was the intention of the Legislature by the act of 1881 to repeal all of the provisions of section 56 of the Criminal Code that were in conflict with the act of 1881, but the provisions of section 56 all came into full force again when said section 4 was declared void by this court. The evident intention of the Legislature in passing the act of 1881 was to substitute section 4 of the act in place of the provisions of section 56 with reference to carrying and flourishing deadly weapons and to enact other provisions on the subject of deadly weapons, but it was not the intent of the Legislature to repeal the provisions of section 56 with reference to the subject of deadly weapons and to leave no law in force with reference to carrying concealed or for flourishing deadly weapons. There was therefore no repeal of the provisions of section 56 either by implication or otherwise, as it was not the intention of the Legislature that the repealing clause should be valid, unless section 4 of the act should be valid. People v. Fox, 294 Ill. 263, 128 N. E. 505...