People v. Niemoth
| Decision Date | 16 June 1926 |
| Docket Number | No. 17230.,17230. |
| Citation | 152 N.E. 537,322 Ill. 51 |
| Parties | PEOPLE v. NIEMOTH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Municipal Court of Chicago; George B. Holmes, Judge.
William Niemoth was convicted of carrying concealed weapons, and he brings error.
Reversed.
James M. Burke, of Chicago, for plaintiff in error.
Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Merrill F. Wehmhoff, of Decatur (Edward E. Wilson, of Chicago, of counsel), for the People.
Plaintiff in error, William Niemoth, was tried in the municipal court of Chicago upon an information charging that he carried ‘on or about his person certain concealed firearms, to wit, one automatic Winchester shotgun‘loaded,’ one automatic Colt's pistol, .32 caliber, 'loaded,' one Colt's revolver, .38 caliber, ‘loaded,’ in violation of section 4, Senate Bill 348, in force July 3, 1925 (Laws 1925, p. 339),' and was found guilty. He prosecutes this writ of error to reverse the judgment on the ground that the statute is unconstitutional, that the information is insufficient, and that the proof fails to establish the offense charged.
Harry Reford, a police officer of the city of Chicago, was the only witness called. About 2:30 a. m., August 7, 1925, he and officers O'Day and Foley noticed an automobile parked alongside the curb near the intersection of Fifty-First street and Hoyne avenue, Chicago. Plaintiff in error was sitting in the front seat of the automobile, behind the steering wheel. On the floor of the car back of the front seat they found a Winchester automatic shotgun, loaded, and a .38 caliber Colt's revolver. They did not find a gun on the person of plaintiff in error.
This prosecution is under section 4 of an act revising the law relating to deadly weapons (Smith-Hurd Rev. Stat. 1925, p. 888). It provides: ‘No person shall carry concealed on or about his person a pistol, revolver or other fire-arm.’ ‘About his person’ means sufficiently close to the person to be readily accessible for immediate use. A firearm is concealed about the person when it is pushed down behind the cushion of an automobile on which the accused is sitting (Wagner v. State, 80 Tex. Cr. R. 66, 188 S. W. 1001); when it is lying on the floor of a buggy at the feet of the accused (De Friend v. State, 69 Tex. Cr. R. 329, 153 S. W. 881); when it is concealed on the seat of a wagon on which the accused is sitting (State v. Conley, 280 Mo. 21, 217 S. W. 29); and when it is concealed in a basket carried on the arm of the accused (Diffey v. State, 86 Ala. 66, 5 So. 576). It has been held that a firearm is not concealed about the person when it is carried in a closed saddle-bag (Sutherland v. Commonwealth, 109 Va. 834, 65 S. E. 15,23 L. R. A. [N. S.] 172, 132 Am. St. Rep. 949); when it is carried in a satchel (State v. Weston, 108 S. C. 383, 94 S. E. 871); nor when it is lying on the floor of a buggy under a rug (Ladd v. State, ...
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..., 2019 IL App (3d) 170252, 435 Ill.Dec. 614, 139 N.E.3d 686 ; People v. Liss , 406 Ill. 419, 94 N.E.2d 320 (1950) ; People v. Niemoth , 322 Ill. 51, 152 N.E. 537 (1926) ; People v. Foster , 32 Ill. App. 2d 462, 178 N.E.2d 402 (1961) ; People v. Cosby , 118 Ill. App. 2d 169, 255 N.E.2d 54 (1......
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...as though on the person.’ " Id. ¶ 21 (quoting People v. Liss , 406 Ill. 419, 422, 94 N.E.2d 320 (1950), and citing People v. Niemoth , 322 Ill. 51, 52, 152 N.E. 537 (1926) (" ‘[a]bout his person’ means sufficiently close to the person to be readily accessible for immediate use")). The appel......
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...24--1(a)(4).) Therefore, cases relied upon and cited by defendant such as People v. Liss, 406 Ill. 419, 94 N.E.2d 320 and People v. Niemoth, 322 Ill. 51, 152 N.E. 537 are inapposite here. These cases were decided under a former law which did not contain the decisive language 'concealed in a......