APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendants, Glenn Kimmel, Paul E. Gillingham and Carey Koba, were each charged in three counts with possession and transportation of explosives without a valid license, unlawful use of weapons and possession of explosives and incendiary devices. (Ill. Rev. Stat. 1973, ch. 93, pars. 152.1 and 152.2; ch. 38, pars. 24-1(a)(7) and 20-2.) After a bench trial, Kimmel and Koba were found guilty of all counts, and Gillingham was found guilty of a single count of unlawful use of weapons. Gillingham was sentenced to a term of 5 years probation, Kimmel was sentenced to a term of 3 1/2 to 10 1/2 years, and Koba was sentenced to a term of 4 1/2 to 13 1/2 years. Koba has not pursued an appeal of his conviction.
The issues presented for review are: (1) whether section 24-1(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(c)) is unconstitutional; (2) whether finding Gillingham guilty under a statute containing a presumption but not guilty of other crimes without the statutory presumption based on the same facts, violated due process; and (3) whether Kimmel's sentence of 3 1/2 to 10 1/2 years is excessive.
We reverse the Gillingham conviction. We affirm the Kimmel sentence.
Two youths, Eddie Martinez and Danny Negron, each testified that on August 10, 1975, defendants pulled up in a brown Thunderbird with a black vinyl top and Kimmel and Koba got out of the car. Kimmel stated that if they wanted to buy dynamite, the price would be $10 per stick. Later that afternoon Martinez, Negron and Louis Rivera talked to Officer Johnson and told him what had happened. Negron gave him a general description of the men in the car, and the officer asked if they could get a license number.
The boys saw all three defendants in the Thunderbird again the next day while driving in Negron's car, and Rivera wrote down the license number. Negron signaled the Thunderbird to stop, and Rivera went to the driver's side of the Thunderbird. Kimmel was driving, Koba was in the passenger side of the front seat and Gillingham was standing up listening to the conversation while Rivera and Kimmel talked. When Rivera returned to his own car, Kimmel followed him and stated he would trade the dynamite for electronic equipment or guns. The parties arranged a meeting for 8 p.m. that evening at 2844 North Clybourn.
The boys once again found Officer Johnson and gave him a better description of defendants as well as the license plate number. Later, they talked with members of a police tactical unit and still later met with defendants. When the Thunderbird arrived that evening, only Koba and Kimmel were visible in the car. The boys asked if they had the dynamite, and they answered they did. When the police car arrived, Gillingham could also be seen in the car.
Officer Richard A. Johnson testified that on August 10, 1975, he had a conversation with Negron at about 5:30 p.m., and Negron told him some people were attempting to sell dynamite. He said they were driving an older model Thunderbird, and Johnson asked Negron to get more information. He saw Negron between 5 and 5:30 p.m. the next day, and Negron gave him the license number and also a description of the men in the car.
Officer Patrick Keane testified that on August 11, 1975, he had a conversation with Officer Johnson at about 7:30 p.m. He then drove to the corner of Clybourn and Diversey and parked his unmarked police car. At 8:30 or 8:45 p.m., he pulled his car behind the Thunderbird. He testified that Kimmel was driving, Koba was in the front passenger seat and Gillingham, who appeared to be asleep, was in the back seat. He opened the trunk of the Thunderbird and found 76 sticks of dynamite and 29 blasting caps.
It was stipulated that none of the defendants had a valid license to possess or sell dynamite or blasting caps. It was also stipulated Kimmel was 29 years old, Koba 24, and Gillingham 21. Each defendant rested without calling any witnesses.
Defendant Gillingham first contends he was improperly convicted of unlawful use of weapons. He argues the presumption contained in section 24-1(c) of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(c)) is unconstitutional because it allowed him to be convicted on a quantum of evidence less than that allowed by the reasonable doubt standard, or in the alternative, he argues the presumption fails under the more-likely-than-not standard set forth in Leary v. United States (1969), 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532.
The relevant portions of the unlawful use of weapons statute, section 24-1, provide as follows:
"(a) A person commits the offense of unlawful use of weapons when he knowingly:
(7) * * * possesses * * * any bomb * * * or other container containing an explosive substance of ...