THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HOWARD G. FINK,
No. 55013 Supreme Court of Illinois 91 Ill. 2d 237; 437
N.E.2d 623; 1982 Ill. LEXIS 280; 62 Ill. Dec. 935
June 1, 1982, Filed PRIOR HISTORY: [***1]
Appeal from the Appellate Court for the Second District; heard in
that court on 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
(Barbara A. Preiner, Assistant State's Attorney, and Nancie S.
Hudell, law student, of counsel), for the People.
Carl W. Kuhn and William F. Linkul, of Glen Ellyn, for appellee.
JUDGES: JUSTICE WARD delivered the opinion of the court.
OPINION: [*238] [**624] On February 13, 1980, the defendant,
Howard G. Fink, was arrested and charged in the circuit court of
Du Page County with unlawful use of weapons under section 24 --
1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch.
38, par. 24 -- 1(a)(1)). The complaint charged that he "knowingly
possessed a bludgeon, commonly referred to as a nitestick [sic] *
* * in a 1977 Pontiac * * * within the corporate limits of the
Village of Lombard, Du Page County, Illinois." On April 1, 1980,
the defendant filed a pretrial motion to dismiss the complaint
under section 114 -- 1(a)(8) of the Code of Criminal Procedure of
1963 (Ill. Rev. Stat. 1979, [***2] ch. 38, par. 114 -- 1(a)(8)),
alleging a failure to charge an offense. After a hearing, at which
the nightstick was examined, the court held that it was not a
bludgeon within the intendment of section 24 -- 1(a)(1) and
dismissed the complaint. The People [*239] appealed under Supreme
Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), and the appellate
court affirmed (94 Ill. App. 3d 816). We granted the People's
petition for leave to appeal (73 Ill. 2d R. 315).
The People make two contentions on this appeal: that a nightstick
is a "bludgeon" within the intendment of section 24 -- 1(a)(1),
and that the circuit court, in considering the pretrial motion to
dismiss the complaint, improperly went outside the face of the
complaint and considered evidence in reaching its decision.
At the pretrial hearing, the defendant argued that a nightstick is
not a bludgeon, which is referred to in section 24 -- 1(a)(1) of
the Criminal Code of 1961, but is a billy to which section 24 --
1(a)(2) refers. Section 24 -- 1(a)(1), inter alia, makes it an
offense simply to possess a bludgeon. Section 24 -- 1(a)(2), inter
alia, makes it criminal to possess a billy with the intent to use
it unlawfully [***3] against another. The pertinent parts of the
statute read: "(a) A person commits the offense of unlawful use of
weapons when he knowingly: (1) Sells, manufactures, purchases,
possesses or carries any bludgeon, black-jack, slung-shot,
sand-club, sand-bag, metal knuckles or any knife, commonly
referred to as a switchblade knife, which has a blade that opens
automatically by hand pressure applied to a button, spring or
other device in the handle of the knife; or
(2) Carries or possesses with intent to use the same unlawfully
against another, a dagger, dirk, billy, dangerous knife, razor,
stiletto, broken bottle or other piece of glass, stun gun or taser
or any other dangerous or deadly weapon or instrument of like
character." (Ill. Rev. Stat. 1979, ch. 38, par. 24 -- 1(a).)
"Bludgeon" is not defined in the statute, and the trial court
examined definitions provided in various dictionaries. They
generally define a "bludgeon" as a short, heavy stick or club with
one end loaded or thicker or heavier than the other. The court
observed that the nightstick [*240] taken from the defendant's
car, though having a carved or knurled gripping surface on one
end, did not [***4] have an end that was heavier or thicker than
the other. The court dismissed the complaint.
Where the terms of a statute are not defined by the legislature,
courts will assume that they were intended to have their ordinary
and popularly understood meanings, unless to do so would defeat
the perceived legislative intent. (Droste v. Kerner (1966), 34
Ill. 2d 495.) Applying this to the terms "bludgeon" and [**625]
"billy," we consider that a nightstick comes within the
classification "billy" in section 24 -- 1(a)(2). Webster's Third
New International Dictionary 240 (1971) defines "bludgeon" as "a
short stick used as a weapon usu. having one thick, heavy or
loaded end: billy." "Billy" is defined as "a heavy usu. wooden
weapon for delivering blows: club; esp.: a policeman's club."
(Page 216.) "Nightstick" is defined as "a policeman's club." (Page
1528.) Thus, though "nightstick" is within a broad definition of
"bludgeon," the term comes within the specific definition of
"billy." In construing a statute, specific words in their commonly
understood sense best indicate the legislative intendment. (People
v. Holleman (1980), 82 Ill. App. 3d 409.) The specific reference
[***5] to a "billy" (or a nightstick) in section 24 -- 1(a)(2)
makes it unnecessary to determine whether section 24 -- 1(a)(1)
can be broadly construed so as to include a nightstick. Possession
of a billy or a nightstick would be criminal only if accompanied
by an intent to use it unlawfully against another. This was not
charged. The appellate court correctly affirmed the dismissal of
The specific inclusion of a billy in the weapons covered under
section 24 -- 1(a)(2) would hardly make sense if simple possession
of a nightstick had been covered under the term "bludgeon" in the
prohibitions of section 24 -- 1(a)(1). The People suggest that the
legislature, in using the term "billy," was referring to a weapon
which they [*241] describe as a "bill." The suggestion is not
convincing. Bills were used only "up to the 18th" century. See
Webster's Third New International Dictionary 215 (1971).
The People's contention that the trial court erred in going beyond
the face of the complaint and considering evidence at the pretrial
hearing on the motion to dismiss was not argued in the People's
brief in the appellate court. Thus, the point has been waived (73
Ill. 2d R. 341(e)(7)) [***6] and will not be considered. (People
v. Caldwell (1968), 39 Ill. 2d 346; see Mueller v. Elm Park Hotel
Co. (1945), 391 Ill. 391.) In People v. Caldwell this court said:
"The failure of a party to present an alleged error to the
appellate court precludes him from now asserting that ground for
our consideration in all matters which are not jurisdictional."
(39 Ill. 2d 346, 354.) Under the circumstances here, the fact that
the question was discussed in the dissent (94 Ill. App. 3d 816,
819-20 (Reinhard, J., dissenting)) does not affect the waiver of
the contention by the People.
In any event, even if the court had improperly received evidence
in weighing the defendant's motion, that fact could not validate a
complaint that failed to charge an offense.
For the reasons given, the judgment of the appellate court is