dissenting:
I agree with the majority that the defendant is relying on the exemption provided in section 24 — 2(a)(4) of the Criminal Code. I cannot, however, agree with my colleagues that the defendant has been brought within the purview of that statute or that the evidence adduced at trial establishes a “quantum of evidence” sufficient to place the exemption in issue.
The exemption provided in section 24 — 2(a)(4) is an affirmative defense. Since the State’s case did not raise such issue in the first instance, it was incumbent upon defendant to adduce evidence raising the issue. (Ill. Rev. Stat. 1975, ch. 38, pars. 3—2(a), 24—2(g).) While it may be true, as the majority suggests, that the quantum of evidence which must be adduced in order to raise an affirmative defense has been the subject of some conflict, it seems clear to me that in the instant case the defendant failed to adduce sufficient evidence raising the issue of his exemption as a security guard which would otherwise necessitate rebuttal by the State beyond a reasonable doubt. The statute cannot and should not be construed as giving security guards the right to carry weapons other than within the precise limits prescribed by the statutory language. The abuses and dangers implicit in any other interpretation are all too obvious to require delineation in this opinion.
The statutory language of the exemption for a security guard contained in section 24 — 2(a)(4) is clear: the accused must be a security guard in the actual performance of his duties or commuting between his home and place of employment. Defendant presented evidence to the trial court that he was in fact employed as a security guard, but he did not inform the officers or testify at trial that he was engaged in his duties in that regard at the time of his arrest or commuting between his place of employment and his home at that time. Rather, the record shows at the time of the arrest defendant was en route to purchase cigarettes where he had not worked. Defendant’s evidence at trial further disclosed that he was traveling in an opposite direction from his home.
The conflict in the evidence as to whether or not defendant informed the officers that he had just gotten off duty is thus immaterial, since the evidence adduced showed that he was neither actively engaged in the performance of his duties as a security guard nor commuting between his place of employment and his home. (C.f. People v. Johnson (1975), 27 Ill. App. 3d 541, 544, 327 N.E.2d 424.) Since defendant failed to properly raise the issue of his alleged exemption under section 24 — 2(a)(4) of the Criminal Code, the State was not required to prove him guilty beyond a reasonable doubt as to that issue. Ill. Rev. Stat. 1975, ch. 38, pars. 3—2(b), 24—2(g).
The cases cited in the majority opinion are distinguishable and are not supportive of that opinion. On the contrary those cases clearly support the position taken here.
In People v. Williams (1975), 28 Ill. App. 3d 67, 328 N.E.2d 192, a case exclusively relied upon by the defendant, this division of this court noted that defendant’s evidence at trial included not only documentary evidence that he was employed as a security guard, but also evidence that he was en route to work in the capacity. In People v. Randle (1975), 26 Ill. App. 3d 713, 325 N.E.2d 345 (abstract), the defendant testified he was en route home within one hour of his departure from his employment as a security guard. In People v. Johnson (1975), 27 Ill. App. 3d 541, 327 N.E.2d 424, defendant’s testimony indicated he was in the actual performance of his job as a security guard.
People v. Lofton (1976), 42 Ill. App. 3d 211, 355 N.E.2d 674, is distinguishable because in that case the defendant’s conviction was reversed based on the appellate court’s determination that another provision of the exemption, possession of documentation as to completion of a required training course, was not essential to the defense. It is true that some of the evidence as summarized in that opinion indicates that the defendant had completed his work half an hour before his arrest. But the court also cites the defendant’s contention that he was working at the time of his arrest, a contention which would eliminate the need to show that the defendant was on his way home. At any rate the case was decided on the documentation issue and thus is no support for the majority opinion in this cause.
Both Johnson and Lofton were also decided by this division of this court which noted in Johnson at page 544 that the record did not show that the defendant was on “a private jaunt of his own.” Such a claim cannot be made in the case at bar.
It is my opinion that contrary to the circumstances presented in the foregoing cases, and contrary to the State’s concession, the defendant’s evidence was clearly insufficient to have raised the security guard exception which would otherwise have necessitated rebuttal beyond a reasonable doubt by the State. I would, therefore, affirm.