People v. Bartimo1/15/2004
gree, however, that defendant was properly convicted of the offense of unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 2002)). I would reverse that conviction and vacate that sentence.
The evidence is clear that the handgun in question was unloaded, in a snap-closed nylon holster, located in the passenger-side backseat. Section 24-1(a)(4) does not apply to weapons that "are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card." 720 ILCS 5/24-1(a)(4)(iii) (West 2002). A "holster" is a "case." Merriam-Webster's Collegiate Dictionary 554 (10th ed. 2000). "Enclose" means
"1 a (1): to close in: SURROUND (
"Enclosed" means "held in" or "confined," such as cattle that are enclosed in a pen. The handgun here was clearly held in or confined in the snap-closed nylon holster, and accordingly there can be no violation of section 24-1(a)(4).
The State argues that "By using this holster which left parts of the gun exposed, the defendant failed to bring himself within the exemption," citing a definition of "case" found in the Wildlife Code (520 ILCS 5/1.2b-1 (West 2002)):
"[']Case['] means a container specifically designed for the purpose of housing a gun or bow and arrow device which completely encloses such gun or bow and arrow device by being zipped, snapped, buckled, tied[,] or otherwise fastened with no portion of the gun or bow and arrow device exposed." (Emphasis added.)
The legislature chose to employ an unusual definition of "enclosed case" in the Wildlife Code. The legislature, however, did not choose to employ that definition in the Criminal Code.
The Criminal Code is broader than the Wildlife Code. The Criminal Code does not just provide an exemption for cases, it provides an exemption for cases, firearm carrying boxes, shipping boxes, and "other container ." Even if the words from the Wildlife Code, "no portion of the gun * exposed," were held to apply to the word "case" in section 24-1(a)(4), there is no justification for applying them to the word "container."
The words, however, should not even be applied to the word "case." The words are simply not contained in or referred to in section 24-1(a)(4). As the majority points out:
" courts 'cannot read words into a statute that are not there.' Chicago Tribune Co. v. Board of Education of the City of Chicago, 332 Ill. App. 3d 60, 67, 773 N.E.2d 674, 680 (2002). Further, '" nder the doctrine of separation of powers, courts may not legislate, rewrite[,] or extend legislation. If the statute as enacted seems to operate in certain cases unjustly or inappropriately, the appeal must be to the General Assembly, and not to the court."' Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 522, 732 N.E.2d 528, 544 (2000), quoting People v. Garner, 147 Ill. 2d 467, 475-76, 590 N.E.2d 470, 474 (1992)." Slip op. at 19.
The proscriptions of a criminal statute must be clearly defined. The statute must provide a person of ordinary intelligence a reasonable opportunity to distinguish between lawful and unlawful conduct so that he or she may act accordingly. People v. Maness, 191 Ill. 2d 478, 483-84, 732 N.E.2d 545, 549 (2000). No one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. "'All are entitled to be informed as to what the State commands or forbids.'" City of Chicago v. Morales, 177 Ill. 2d 440, 450, 687 N.E.2d 53, 60 (1997), aff'd, 527 U.S. 41, 144 L. Ed. 2d 67, 119 S. Ct. 1849, (1999), quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S.
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