People v. Skelton

Mr. PRESIDING JUSTICE JONES,

dissenting:

Our supreme court has recently held that a fingernail clipper could be a dangerous weapon within the purview of the armed robbery statute. (People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.) In so doing they reaffirmed the following rule from People v. Dwyer (1927), 324 Ill. 363, 155 N.E. 316:

“ ‘Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.’ ” 73 Ill. 2d 192, 202, 383 N.E.2d 164, 169.

If an instrument as small and innocuous as a fingernail clipper can support a jury finding of “dangerous weapon” then the majority is surely in error in setting aside the finding of the jury in this case that a heavy plastic, realistic, toy gun is, as a matter of law, not a dangerous weapon. So surely are they in error that I respectfully dissent.

The defendant here stood close to the victim and could have easily used the heavy plastic pistol to strike or bludgeon her, or to jab her in an eye or elsewhere. It easily constituted a threat far more dangerous than the use of strong-arm force and comprised a danger at least equal to, if not greater than, a fingernail clipper.

To paraphrase Robinson and Dwyer, the character of the weapon was doubtful, or, the question of dangerousness depended upon the manner of its use, and it was for the jury to determine from a description of the weapon, the manner of its use, and the circumstances of the case whether it was dangerous. This the jury has done, and the majority is unwarranted in setting aside its finding in that regard.

My disagreement with the majority is based upon the purely objective standard for determining whether a weapon is dangerous within the purview of the armed robbery statute, a standard which they advocate. However, the advent today of the majority opinion in this case marks what apparently is only the second instance in Illinois in which a toy or inoperable weapon has been held not to be a dangerous weapon within the purview of our armed robbery statute. The first instance was the Fifth District case of People v. Richards (1975), 28 Ill. App. 3d 505, 328 N.E.2d 692. Both cases are at odds with Robinson and Dwyer.