THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v. HOWARD K. FINK, Defendant-Appellee
No. 80-326 Appellate Court of Illinois, Second District 94 Ill.
App. 3d 816; 419 N.E.2d 86; 1981 Ill. App. LEXIS 2351; 50 Ill.
Dec. 219 April 2, 1981, Filed PRIOR HISTORY: [***1]
APPEAL from the Circuit Court of Du Page County; the Hon. EDWARD
KOWAL, Judge, presiding.
DISPOSITION: Judgment affirmed.
COUNSEL: J. Michael Fitzsimmons, State's Attorney, of Wheaton
(Robert L. Thompson, Assistant State's Attorney, of counsel), for
Carl W. Kuhn and William F. Linkul, both of Glen Ellyn, for
JUDGES: Mr. JUSTICE UNVERZAGT delivered the opinion of the court.
VAN DEUSEN, J., concurs. Mr. JUSTICE REINHARD, dissenting.
OPINION: [*816] [**87] The State appeals from an order of the
circuit court of Du Page County dismissing a complaint charging
defendant, Howard K. Fink, with unlawful use of weapons (Ill. Rev.
Stat. 1979, ch. 38, par. [*817] 24 -- 1(a)(1)). The complaint
charged that defendant had "knowingly possessed a bludgeon,
commonly referred to as a nitestick [sic], which is about 2' long
in a 1977 Pontiac bearing Kentucky registration CFX-159 for 1980
within the corporate limits of the Village of Lombard, DuPage
County, Illinois." The State contends that the trial court erred
in determining that the nightstick was not a bludgeon within the
meaning of section 24 -- 1(a)(1) of the Criminal Code of 1961,
concluding [***2] therefore that the complaint failed to state an
offense, and dismissing the charge.
Shortly after the complaint was filed, defendant on April 1 moved
to dismiss the charge pursuant to section 114 -- 1(a)(8) of the
Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 114 --
1(a)(8)) for failure to state an offense. In reliance on People v.
Tate (1979), 68 Ill. App. 3d 881, the defendant contended that a
nightstick is not a bludgeon within the meaning of the above-cited
subsection of the statute. Although the record does not contain a
written answer by the State to the defendant's motion nor a
transcript of the April 1 proceedings, we believe it is reasonable
to assume that the court was confronted at that time with a
question of fact; namely, is a nightstick a bludgeon within the
meaning of section 24 -- 1(a)(1) of the Criminal Code of 1961?
Consequently, the court ordered the object to be produced in court
on April 3 and received arguments at that time. We observe that
such a procedure is specifically authorized by section 114 -- 1(d)
(Ill. Rev. Stat. 1979, ch. 38, par. 114 -- 1(d)). The nightstick
was determined to be approximately 23 inches long, between
one-half to [***3] one-inch in diameter, and to weigh "several
ounces." Neither end had been weighted, although the State argued
that one end was lighter than the other because it had been carved
or knurled so as to provide a gripping surface. Inasmuch as the
word bludgeon is not defined by the statute, the court consulted
three dictionary definitions. Although they varied somewhat, the
dictionaries generally described a bludgeon as being a short,
stout, heavy stick or club with one end thicker or heavier than
the other, used for a handle or a weapon or to attack or bully.
The court determined that the common definition of the word
"bludgeon" contemplates that one end of the object be heavier than
the other, and therefore ordered the charge dismissed.
The State contends that the trial court's determination was
erroneous, inasmuch as the object has both the physical and
functional attributes of a bludgeon. The State points out that the
carved end of the nightstick thusly has been made lighter than the
other end, and points out that there is no use for a nightstick
other than as a weapon. The State asserts further that the word
bludgeon should be defined with sufficient breadth to include any
club-like [***4] weapon, and finally the State asserts that the
potential or actual use of an instrument is vital to a
determination of whether a particular object is a bludgeon. The
trial court's determination that the [*818] nightstick was not a
bludgeon was based on the fact that it did not conform with the
dictionary definitions of a bludgeon because neither end was
heavier nor thicker than the other. The State also advances the
argument that some dictionaries state only that a bludgeon usually
has a heavier end and, as such, it is not an essential
characteristic of the weapon.
Two prior Illinois cases have considered whether a particular
object may be determined to be a bludgeon within the meaning of
section 24 -- 1(a)(1) of the Criminal Code of 1961. In People v.
Collins (1972), 6 Ill. App. 3d 616, the court affirmed a
conviction for the unlawful use of weapons predicated upon the
possession of a chain approximately three feet in length which had
been looped to form a handle and the two loose ends wrapped
together with tape. In the course of its holding, the court noted
that the definition of a bludgeon had been broadened in State
[**88] v. Witcher (1959), 58 [***5] N.J. Super. 464, 156 A.2d 709,
to include any club-like weapon. The court, noting that the taping
of the chain had resulted in the instrument becoming stiffer and
more inflexible with no apparent use other than that of a weapon,
found that the chain could be classified as a bludgeon. Collins
was later distinguished in People v. Tate (1979), 68 Ill. App. 3d
881. The Tate court found that karate sticks, two 12-inch wooden
sticks connected with a six- to seven-inch chain, did not
constitute a bludgeon for purposes of section 24 -- 1(a)(1) of the
Criminal Code of 1961. In reliance on People v. Malik (1976), 70
Mich. App. 133, 245 N.W. 2d 434, the court concluded that the
karate sticks could not be considered a bludgeon where nothing in
the record indicated that one end was loaded or thicker or heavier
than the other. Unlike the wrapped chain in Collins, the karate
sticks were determined to have a legitimate sporting use. The Tate
court, with reference to the Malik case, found that the express
mention of one thing implies the exclusion of other similar things
and cited Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69,
in support thereof. More precisely, [***6] Nelson states the rule
of construction which provides that words used in a statute are to
be given their plain meanings, and that the use by the legislature
of certain language in one instance and wholly different language
in another indicates that different results were intended. Nelson,
At this point, we wish to note that the standard of review of a
judgment dismissing a complaint because it did not state a cause
of action requires an examination of the complaint in order to
determine whether it complies with section 111 -- 3 (Ill. Rev.
Stat. 1979, ch. 38, par. 111 -- 3) which, inter alia, requires
that the nature and elements of the offense charged be set forth.
(People v. Tuczynski (1978), 62 Ill. App. 3d 644.) We think it is
of some import that the complaint charged possession of a
"bludgeon, commonly known as a nitestick [sic]"; indeed, the
object in question is readily identifiable as a nightstick.
Another name for a nightstick [*819] is a "billy" or "billy club."
One dictionary shows the term "billy" is derived from the word
"bill," meaning a medieval shafted weapon having at its head a
hook-like cutting blade with a beak at the back, [***7] plus the
hypocoristic suffix "y", which is a suffix commonly used in
creating endearing pet names and also signals the diminutive or
euphemistic use of a term. (The Random House Dictionary of the
English Language 148 (unabr. ed. 1967).) There is no doubt the
legislature was aware of the nightstick's potential use as a
weapon. Section 24 -- 1(a)(2) prohibits, inter alia, the carrying
or possession of a billy with the intent to use it unlawfully
against another. Ill. Rev. Stat. 1979, ch. 38, par. 24 --
Our reading of the various subsections of section 24 -- 1 causes
us to conclude that the legislature did not intend to prohibit the
mere possession of a nightstick but, rather, to prohibit such
possession when there is an intent to use it unlawfully against
This conclusion is an express rejection of the State's urging that
the term bludgeon be construed broadly to include any club-like
weapon. We believe such a construction would invite undue abuse.
Each case must be decided on its own particular facts.
Accordingly, the complaint charging the defendant with possession
of a nightstick fails to state a cause of action under section 24
-- 1(a)(1) of the Criminal [***8] Code of 1961, and the
defendant's motion to dismiss was properly granted by the trial
The judgment of the circuit court of Du Page County is
DISSENT: Mr. JUSTICE REINHARD, dissenting:
I dissent on the sole basis that the trial judge's dismissal of
the complaint pursuant to defendant's pretrial motion that the
complaint did not state a cause of action under section 114 --
1(a)(8) (Ill. Rev. Stat. 1979, ch. 38, par. 114 -- 1(a)(8)) was
based upon his [**89] improper consideration of evidentiary
matters beyond evaluation of the legal sufficiency of the
complaint itself. Curiously, the State acquiesced in this unusual
procedure and only contends on appeal that the trial judge was
incorrect in his factual determination.
A motion to dismiss the complaint under section 114 -- 1(a)(8)
only tests whether the charge itself states an offense. (People v.
Long (1970), 126 Ill. App. 2d 103, 107, 261 N.E.2d 437.) In
reviewing a motion to dismiss under 114 -- 1(a)(8), we may only
examine the information itself. (People v. Drake (1978), 63 Ill.
App. 3d 633, 636, 380 N.E.2d 522; People v. Long (1970), 126 Ill.
App. 2d [***9] 103, 107, 261 N.E.2d 437.) To make that [*820]
determination here the trial judge himself examined the alleged
bludgeon, considered statements by the lawyers on the length,
shape, and weight of the object and consulted several
dictionaries. This, however, is the purpose of a trial, and the
State should have an opportunity to fully present its proofs to
the trier of fact. The merits of a case were never meant to be
decided within the vacuum of a motion to dismiss. See People v.
Rose (1976), 44 Ill. App. 3d 333, 338, 357 N.E.2d 1342.
The authority of the court to dismiss an indictment, information
or complaint is limited to the grounds set out in section 114 -- 1
(People v. Grimm (1979), 74 Ill. App. 3d 514, 516, 392 N.E.2d
1138), and under its inherent authority where there has been a
clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d
449, 367 N.E.2d 1244.) Nevertheless, the majority concluded that
section 114 -- 1(d) (Ill. Rev. Stat. 1979, ch. 38, par. 114 --
1(d)) authorizes the procedure used here. I can find no authority
for use of that section in a section 114 -- 1(a)(8) motion which
tests the legal sufficiency of a charge. While it does have
[***10] applicability to other subsections of 114 -- 1 and motions
to dismiss on due process grounds pursuant to Lawson wherein
factual determination must be made (see People v. Addison (1966),
75 Ill. App. 2d 358, 361, 220 N.E.2d 511), matters of an
evidentiary nature are not properly before the court in
determining the legal sufficiency of a complaint.