Error to the Circuit Court of Macon County; the Hon. DONALD W.
MORTHLAND, Judge, presiding. Affirmed.
This is an appeal from a conviction of burglary in the circuit court of Macon County. Based upon a jury verdict of guilty, the defendant, John Theodore Powell, was sentenced to a term of 5 to 20 years in the penitentiary.
The defendant alleges the following errors:
1. The indictment was defective for failure to specify the location of the offense.
2. The evidence is insufficient to establish the defendant's identity and prove felonious intent.
The facts show that on March 25, 1963, Hubert Johnson, the night watchman for Jenkins Music Co., phoned the police to report a suspected burglary. Officer Raymond King arrived on the scene shortly thereafter and together with Johnson began to search the building with flashlights. They discovered two men hiding between storage racks in the building. Both men attempted to escape. La Verne Watts was arrested in the building; the other man jumped out a window.
A short time later another officer, Harold Lindsten, apprehended the defendant in the nearby vicinity. The defendant's clothes were dirty and splattered with muddy water. The alley behind the building near the broken window was muddy.
The night watchman, Hubert Johnson, later identified the defendant at a police lineup. Johnson described the defendant to the police before the lineup as being six feet tall, no hat, with bushy hair, wearing a light tan jacket and blue denim overalls. From the testimony in the record the defendant fit this description.
The defendant testified he was with La Verne Watts from 9:00 a.m. till 8:00 p.m. the day of the crime. He stated that the car they were driving stalled and that Watts left the car to walk to the defendant's house. The defendant claimed he followed Watts about one-half block behind until he lost track of him near the scene of the crime. He testified he heard shouting and began to run until he was arrested by Officer Lindsten.
An earlier trial resulted in a hung jury. The identification by the State's witness, Hubert Johnson, was more positive at the second trial. Police Officer King stated he could not make a positive identification of the defendant as the person he confronted in the building along with La Verne Watts.
The first alleged error attacks the sufficiency of the indictment under the Illinois Constitution. The pertinent part of the indictment stated:
". . . `unlawfully, feloniously, knowingly and without authority entered a building, then and there a building of James B. Jenkins and G.C. Jenkins d/b/a G.C. Jenkins Co., there situate, with intent then and there therein to commit theft of divers goods and chattels then and there being in said building, being then and there the property of James B. Jenkins and G.C. Jenkins, d/b/a G.C. Jenkins Co. aforesaid.'"
The applicable constitutional provision states:
"In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy ...