WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOSEPH A. POPE, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1960.
The defendant, Sam Urbana, prosecutes this writ of error to reverse the judgment of the criminal court of Cook County finding him guilty of the crime of attempted burglary. He was tried before the court and, after post-trial motions were denied, was sentenced to the penitentiary for a term of not less than one nor more than five years. The errors assigned and argued relate to the propriety of the indictment and the legal sufficiency of the evidence to sustain the judgment of conviction.
Defendant contends that he was indicted under section 1 of division 11 of the Criminal Code, (Ill. Rev. Stat. 1955, chap. 38, par. 581,) and that the crime of attempted burglary is defined and made punishable only under section 37 of division I. (Ill. Rev. Stat. 1955, chap. 38, par. 85.) He points out that section 1, the general attempt statute, provides for the punishment of an attempt to commit an offense prohibited by law where no provision is made for the punishment of such attempt. He argues that since section 37 specifically provides the punishment for attempted burglary, the charge against him could properly be made only under it; and that the judgment based upon an indictment under the general attempt statute cannot be sustained.
Section 1 provides: "Whoever attempts to commit any offense prohibited by law, and does any act towards it but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished, when the offense thus attempted is a felony, by imprisonment in the penitentiary not less than one, nor more than five years; in all other cases, by a fine not exceeding $300, or by confinement in the county jail not exceeding six months."
Section 37 provides: "Whoever shall attempt to break and enter any building, ship or vessel, with intent to commit the crime of murder, rape, robbery, larceny or other felony, shall be imprisoned in the penitentiary not less than one nor more than five years." Prior to amendment in 1953, it was restricted to attempts to break and enter "in the night time" but those words were then deleted.
Before such amendment there was no statute specifically providing for the punishment of burglary attempted in the day time. Under this posture of the statutes, we held that section 1 which provides for the punishment of attempts generally was applicable and that any person who attempted a day time burglary could be indicted and convicted thereunder. People v. Lebolt, 5 Ill.2d 399.
However, in a case decided prior to the amendment of section 37, we held that an indictment under section 1 was improper where the evidence showed that an attempt had been made to break and enter in the night time, since there was an act specifically providing punishment for an attempted night time burglary. People v. Jones, 263 Ill. 564.
Since the 1953 amendment, section 37 is applicable to attempted burglary, whether committed in the day or night time. It contains a specification for the punishment of attempted burglary, while section 1 covers the punishment of attempts only where no provision is otherwise made therefor.
Defendant's argument is based upon the assumption that the indictment in this case was drawn under section 1. In substance, the indictment provides that Sam Urbana on July 1, 1956, in Cook County, Illinois, "unlawfully * * * did attempt to break and enter a certain building, to-wit: store of the Jewel Tea Co., Inc., a corporation, there situate, with intent the personal goods, chattels, money and property of said Jewel Tea Co., Inc., in said certain building, * * * then and there feloniously and burglariously to steal, take and carry away, * * * and in said attempt did then and there do certain overt acts toward the commission of said offense, to-wit, did then and there break and cut the grill on a certain back door and did then and there drill the tumbler of the lock on a certain inner door to the end that Sam Urbana might then and there feloniously and burglariously enter said building, to-wit: store and said Sam Urbana did fail in the perpetration of said offense and was intercepted and prevented in the perpetration of the same."
While the indictment is verbose and contains language customarily employed in charging a crime under section 1, it does not follow that it is therefore bad under the provisions of section 37. An overt act, failure, interception or prevention in the execution of the crime are factors inherent in the general legal concept of an attempt. When an indictment charges an attempt it is proper to specify what acts were done and the reason for failure to execute the crime intended. Since the indictment is legally sufficient under section 37, there is no reason to assume or hold that it was improperly brought under section 1.
It is also claimed that the evidence did not establish defendant's guilt of the crime charged beyond a reasonable doubt. In this connection, defendant questions the proof concerning his identification. In a criminal case it is incumbent on the People to prove beyond a reasonable doubt not only the commission of the crime charged but also to establish by the same degree of proof the perpetration of the crime by the person accused. (People v. Davis, 14 Ill.2d 196; People v. Kidd, 410 Ill. 271.) There can be no doubt in this case that a burglary was attempted at the time and place in question. The only issue to be decided is whether it was proved beyond a reasonable doubt that the defendant was one of the persons who committed the offense.
The evidence established that on June 30, 1956, a store building owned by Jewel Tea Co., Inc., a corporation, was located at 2919 on the east side of N. Harlem Avenue in the city of Chicago. Harlem Avenue runs north and south and the store building was about 100 feet wide and extended backward from the building line on Harlem to an alley which runs north and south along the rear or east side of the premises. Wellington Street is the first street north of the store and runs in an east and west direction. The property between the north wall of the store and Wellington was vacant. A parking lot bounded on the west by Harlem Avenue and on the east by the alley, used by the patrons and employees of the store, was located south of the store building and extended to George Street, the next east and west street. Thus, the store was the only building in the entire half-block area.
North Neva Avenue is the next north and south street east of Harlem. The homes on the west side of that street abutted upon the alley at the rear of the Jewel store. At the time in question, Kenneth Nichols and his family occupied a two story residence at 2922 North Neva Avenue. The lot on which the house was located was 33 1/3 feet wide and extended to the alley. There was a small back yard and a garage at the rear of the house. The Nichols property was directly across the alley from the Jewel Tea Co. store building. An upstairs bedroom window located at the rear of the Nichols house ...