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People v. Merrill

OCTOBER 28, 1966.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

EDWARD E. MERRILL, APPELLANT.



Appeal from the Fifteenth Judicial Circuit in the Circuit Court of Ogle County; the Hon. EDWARD J. TURNBAUGH, Judge, presiding. Judgment of conviction affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. The defendant, Edward E. Merrill, was charged by information with the commission of the offense of burglary "in that he did, while within the limits of Ogle County, and without authority, knowingly enter into the tavern building owned by Welcome Inn, Inc., a corporation, and did therein commit a theft by removing a safe belonging to the said corporation." After trial by jury, the defendant was found guilty as charged and, after hearings on post-trial motions, was sentenced to a term of one to five years in the penitentiary. He appealed the verdict of the jury.

The defendant first argues that the State failed to prove the corporate existence of the "Welcome Inn, Inc." in Ogle County; and that even if a corporate existence were proven, the proper corporate name was "Hillcrest Welcome Inn, Inc." and there was, hence, a fatal variance.

To establish the existence of the corporation burglarized, the State called Charles Cole, the manager of the tavern, as its witness, who testified as follows:

"Q. Mr. Cole, do you know of your own knowledge whether or not Welcome Inn is an incorporated business?

"Mr. Echeles (defense counsel): I object to the leading nature of the question.

"The Court: Reframe the question.

"Q. Do you know what kind of business organization Welcome Inn is?

"A. Yes sir, it is incorporated.

"Q. Mr. Cole, do you know who owned the safe that was removed on the 15th of August 1965 from the building?

"A. By the corporation.

"Q. Who owned the building from which the safe was removed?

"A. The corporation."

After the above questions were asked and the answers given, the defendant objected to them and moved "that they be stricken as improper questions and improper answers and for other grounds." No further basis was given for the objections, and they were overruled.

Proof of the corporate existence of the entity which was burglarized was essential to the State's case. The People v. Clavey, 355 Ill. 358, 366, 189 N.E. 364 (1934). Such proof may be made by introducing the corporate charter or a certified copy thereof, or a prima facie case as to its corporate existence may be established by user. Ill Rev Stats 1965, c 38, § 160-1. Also, it has long been held that a corporate existence may be shown by direct oral testimony if no objection is made to that method of ...


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