APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
A two-count indictment charged defendant with (1) unlawful use of weapons in violation of section 24-1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(7), in that he possessed a shotgun with a barrel less than 18 inches in length, and (2) unlawful use of weapons within 5 years of his release from the penitentiary. Our Criminal Code currently provides that while ordinarily a violation of section 24-1(a)(7) is punishable as a Class 4 felony, if such offense occurs within 5 years of the accused's release from the penitentiary, it is punishable as a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b)) *fn1. Defendant was tried by a jury and found guilty as indicted. Pursuant to the enhanced penalty provisions of section 24-1(b) he was sentenced to a term of from 4 to 10 years. *fn2
Defendant contends that (1) the State failed to prove he had been released from the penitentiary within 5 years of the commission of the current offense, (2) the use of a single-stage procedure in his prosecution on an enhanced penalty indictment for unlawful use of weapons deprived him of a fair trial, (3) his conviction under Count I of the indictment must be vacated due to the supreme court's holding in People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, and (4) his sentence is violative of the Unified Code of Corrections.
Since there is no contention on this appeal that the evidence was insufficient to establish that defendant was in possession of a "sawed-off" shotgun, we need only summarize those facts relevant to the enhanced penalty charge. Following a shooting incident on the West Side of Chicago on January 2, 1972, defendant was taken into custody and indicted for the offense of unlawful use of weapons. Count II of the indictment alleged that on July 19, 1968, he was found guilty of robbery, sentenced to a term of from 1 to 5 years and released from the penitentiary on June 8, 1970, i.e., within 5 years of the commission of the current offense.
Prior to voir dire the trial judge read the indictment to the veniremen. He admonished them that the indictment was not to be considered as evidence or as an inference of guilt.
During the State's case in chief the assistant State's attorney attempted to introduce into evidence an authenticated copy of defendant's "Conviction Statement." Defense counsel objected on the ground, inter alia, that the document did not identify the "Henry Johnson" named therein as defendant. Subject to the condition that the State present evidence that defendant and the subject of the "Conviction Statement" were the same person, the objection was overruled.
The State called Chicago Police Officer John O'Mara who testified that in May 1965 he arrested defendant for robbery. Defendant was indicted for this crime in Indictment No. 65-1754. On cross-examination he testified that he remembered defendant because of his "unique face" and the fact that the victim of the robbery, a 54-year-old woman, died shortly after the crime. The court directed the jury to disregard this answer because it was not responsive to the question put to the witness.
Defendant's "Conviction Statement" was read into evidence. It stated that in Indictment No. 65-1754 Henry Lee Johnson was indicted for robbery, that on November 19, 1965, he entered a guilty plea to that charge, and that on July 19, 1968, he was "sentenced to imprisonment in the Illinois State Penitentiary at Joliet, Illinois, for a term of years not less than one year, and no more than five years for violation of probation."
During closing argument the assistant State's attorney reminded the jury that defendant was charged with unlawful use of weapons within 5 years of his release from the penitentiary, and that this constituted a separate charge in the indictment. He further argued that there must have been something unusual about defendant's 1965 arrest since Officer O'Mara was able to remember it so clearly. The court thereupon advised counsel to "be circumspect" in arguing this matter. In rebutting a defense argument that defendant was law abiding, the assistant State's attorney argued, "the evidence is in the record and we must prove that the man was convicted of a crime in 1965. I submit to you if that is a law-abiding citizen."
The jury was instructed that in order to prove the charge of unlawful use of weapons, the State was required to prove the following propositions:
"First: That the defendant Henry L. Johnson otherwise called Henry Lee Johnson, knowingly possessed a shotgun with a barrel less than 18 inches in length; and
Second: That the defendant was released from the penitentiary within five years from January 2, 1972."
In addition, at the request of defendant, they were instructed:
"* * * the burden of proof rests with the State not only to offer in evidence the former convictions, but to prove beyond a reasonable doubt that the defendant Henry L. Johnson, otherwise called Henry Lee Johnson was the same person as the one ...