Appeal from the Circuit Court of the 17th Judicial Circuit,
Winnebago County; the Hon. WILLIAM R. DUSHER, Judge, presiding.
Reversed and remanded.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
The defendant, William Borneman, along with an accomplice, was indicted on two counts for burglary and a third count for theft. He was found guilty by a jury on the first count of burglary in that he "without authority, knowingly entered into the telephone booth building . . ., with intent to commit therein a theft. . . ."
On appeal he claims that the evidence was insufficient to prove him guilty beyond a reasonable doubt, that he was not charged with a crime in that a telephone booth is not a building within the meaning of the word as used in section 19-1 of the Criminal Code of 1961, that the trial court erred in its conduct toward the defendant's chief witness, that the prosecutor presented prejudicial argument and that the trial court erred in refusing to give one of the defendant's tendered instructions.
The prosecution offered evidence which, although circumstantial, would justify the finding that the appellant and his accomplice broke into the coin box of a public telephone located in an outdoor telephone booth in Loves Park, Illinois. The evidence further disclosed that they then removed the coin receptacle and coins and later threw the receptacle away. Shortly thereafter, they were apprehended in a motel and found to be in possession of over $2,000 worth of nickels, dimes and quarters. They also possessed slugs.
The defendant did not testify in the trial. A defense witness testified that he had seen the defendant and his accomplice with two strangers involved in a card game in which a large amount of change was used, and that one of the strangers had stated to the witness that he and the other stranger were in the vending business.
We are first confronted with the question of whether or not a telephone booth is a "building" within the meaning of the word as used in section 19-1 of the Criminal Code of 1961 which provides:
"A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft."
The telephone booth in question was approximately seven feet tall, had three walls, a door and a roof. It was permanently attached to a concrete slab by four bolts. The phone booth housed a telephone which contained a coin receptacle used to collect the coins received from persons making phone calls.
Although we find no decision in this jurisdiction directly in point, we do find some early Illinois Supreme Court cases that have passed upon the question before us, namely, what constitutes a building under the burglary statute. In 1898, the court in the case of Gillock v. People, 171 Ill. 307, 49 N.E. 712, held that a chicken house, sixteen foot square with doors, windows and a tin roof, that housed chickens, was a building as used in the burglary statute. A later case spelled out the definition of what constituted a building under the statute by holding that a partially constructed tool shed met the requirements, People v. Gillespie, 344 Ill. 290, 176 N.E. 316 (1931), wherein at page 294 the court said:
"A building, within this act, has been defined as a fabric, structure or edifice, such as a house, church, shop or the like, designed for the habitation of men or animals or for the shelter of property; a structure." (Emphasis added.)
In the case of Bruen v. People, 206 Ill. 417, 69 N.E. 24 (1903), the court stated an additional element to the definition above at page 423:
"It must be permanent. . . ."
Therefore, we find that there are three elements necessary in defining what constitutes a "building" as used in the burglary statute, being Ill Rev Stats Ch 38, sec 19-1 (1961). First, that it be a structure, edifice or fabric; second, that it be designated for the habitation or shelter of men, animals or property; and third, that it be permanent. The outdoor telephone booth as shown by the evidence in this case meets the definition and requirements set forth. Having reached this conclusion, we, therefore, join other jurisdictions who have found outdoor telephone booths to be "buildings" within the purview of burglary statutes. See People v. Miller, 95 Cal.App.2d 631, 213 P.2d 534, 536; People v. Clemison, 105 Cal.App.2d 679, 233 P.2d 924, 926; Sanchez v. People, 142 Colo. 58, 349 P.2d 561; Perry v. State of Florida (Fla), 174 So.2d 55 (1965).
Notwithstanding the foregoing, we find that prejudicial error was committed during the trial requiring a reversal of the judgment and remanding the case for a new trial. The defendant, as already stated, did not testify. We find ...