APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
E. DOLEZAL, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant, Cecil Lampkins, was arrested by the Chicago Police Department on March 12, 1971, and charged with unlawful use of weapons. (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(4).) Following a bench trial in the Circuit Court of Cook County, he was found guilty and, due to a prior felony conviction within the preceeding 5 years (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(b)), he was sentenced to a term in the penitentiary of 3 to 6 years. Defendant now appeals, contending as follows:
(1) The unlawful use of weapons section of the Criminal Code is unconstitutional, relating to a defendant convicted of a prior felony, as it places a defendant in double jeopardy and is a denial of equal protection of the law;
(2) He should have been found not guilty due to the exemption provided under the Criminal Code for individuals transporting weapons to jail keepers;
(3) He should have been found not guilty since he has established a defense of "necessity";
(4) The trial court erred in failing to allow testimony as to extra-judicial statements which would have corroborated the necessity defense; and
(5) The State had failed to prove that he had been convicted or released from a penitentiary within the five years so as to allow him to be convicted of unlawful use of weapons.
During the evening on March 12, 1971, two Chicago police officers on patrol noticed defendant standing near an intersection. He was adjusting his coat near a street light in a well lighted area and the handle of a revolver was visible above his belt. The officers stopped their car, approached defendant and took the gun. No resistance was offered by defendant.
At trial, defendant did not dispute that he did in fact have the gun, but he did offer an explanation of how he happened to have the weapon and where he was taking it when he was stopped. Defendant testified that at about 8 P.M. that evening he had received a telephone call from Floyd Williams, whom he had known for about a year and a half. Williams seemed to be quite agitated and explained to defendant that he had a gun and intended to shoot some people he suspected of robbing his mother's house. Defendant asked Williams to remain where he was and left his apartment to meet him. When defendant met Williams he made several attempts to convince Williams to give him the gun. After he was successful in doing this, he placed Williams on a subway train at about 10 P.M. Defendant then telephoned Joel Ayres. Mr. Ayres worked at Cook County Jail where he had met defendant. Defendant testified that Mr. Ayres instructed him to bring the weapon to his home. Joel Ayres' testimony confirmed that defendant had in fact called about the gun and stated to Ayres that he had taken it from Williams.
Defendant's first contention on this appeal is that the unlawful use of weapons provision of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24-1) is unconstitutional as applied to a defendant convicted of a prior felony since it places him in double jeopardy for the prior offense. Defendant further urges that this provision resulted in an unconstitutional denial of equal protection of the law. We find no merit in either argument.
The relevant parts of section 24-1 (of the 1971 Code) provided as follows:
"Unlawful use of weapons.
(a) A person commits the offense of unlawful use of weapons when he knowingly:
(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any ...