APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant John Donald Hise was indicted for Unlawful Use of Weapons, and the indictment alleged the possession of a firearm in a place licensed to sell intoxicating beverages in violation of sec. 24-1(a) (8), Ill. Rev. Stat. 1969, ch. 38, The indictment also charged that at the time of the offense, which occurred on December 10, 1969, the defendant had been convicted previously of a felony, and had been released from the penitentiary within five years prior to the commission of the offense charged in the indictment.
The penalty imposed by the statute for violation of sec. 24-1(a) (8), supra, is a fine not to exceed $500.00 or imprisonment in a penal institution other than the penitentiary not to exceed one year or both. The significance of the charge of prior conviction and release within five years is to be found in sec. 24-1(b), supra, which provides:
"A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary . . ., violates any Subsection of this Section shall be imprisoned in the penitentiary from one to 10 years."
The case was tried before a jury, and the jury was instructed that to sustain the charge of Unlawful Use of Weapons, the People were required to prove (in addition to other elements of the offense) "That the defendant was convicted of a felony under the laws of this State" and "That the defendant was released from the penitentiary within five (5) years of said offense."
The jury returned a verdict of guilty and the trial court imposed a sentence of five to ten years.
During the course of the trial the following stipulation, made by the People and by the defendant through his attorney, was stated to the jury:
"THE COURT: While the jury was at recess, a stipulation of fact was arrived at between the People and the defendant, which is as follows: It is stipulated that the defendant, John Donald Hise, was convicted of the felony of forgery in 1962, in the Circuit Court of Macon County, and was sentenced to the Penitentiary for an indeterminate term; was the same person on parole as charged in this cause. Is that the stipulation of the People?
MR. FICHTER: Yes, Your Honor.
THE COURT: And of the defendant?
The People also introduced into evidence the record of the prosecution in the prior forgery conviction, and it disclosed that the offense was committed on December 29, 1961, and that the information, upon which he was prosecuted, was filed February 13, 1962, and that on February 14, 1962, defendant entered a plea of guilty and was sentenced one to fourteen years in the penitentiary.
Defendant urges, in this appeal, that the prior conviction for forgery was a conviction of a misdemeanor rather than for a felony and that this will not support the enhanced penalty provision of sec. 24-1(b) supra. The People argue that ...