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People v. Mcclure

MARCH 28, 1968.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSEPH B. MCCLURE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. L.L. RECHENMACHER, Judge, presiding. Judgment affirmed.

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 24, 1968.

Defendant was tried and convicted of burglary under section 19-1(a) of the Criminal Code (Ill Rev Stats 1965, c 38, § 19-1(a)). He was sentenced to a term of not less than two nor more than ten years in the state penitentiary. He appeals from that judgment charging that there was a fatal variance between the allegations of the information and the proofs, that irrelevant and immaterial evidence was admitted and that there was error committed in connection with the instructions presented to the jury.

The defendant was charged with the offense of burglary in that he, ". . . without authority, knowingly entered into a building owned by Schuham's Ace Hardware Store, Inc., a corporation, located at 479 Roosevelt Road, Glen Ellyn, Illinois, with intent to commit therein a theft . . ." The evidence was that the building in question was owned by one Pasquale Mazza. Mr. Mazza occupied a portion of the building and leased the remainder of the building to Schuham's Ace Hardware Store, Inc., referred to hereinafter as Schuham.

The facts of the case indicate that a burglar alarm, connected to the local police station from the building in question, sounded at three minutes past midnight on the evening of December 21-22, 1965. An alert was radio dispatched and received by a police officer in a squad car about 150 feet from the parking lot of Schuham's store. The officer entered the parking lot and, hearing sounds from the roof, climbed the wall of the building to see a person, whom he identified as the defendant, running across the roof of the building. The police officer pursued the person and fired a shot at him. The person jumped from the roof but, by this time, other officers had arrived and took up the chase. A second officer ran across the street, where he saw the person (whom he also identified as the defendant) and fired a shotgun at the person. The chase continued, with the officers sometimes losing track of the fleeing party and attempting to follow his tracks in the snow and wet ground. The party was next sighted in a parking lot a block and one-half west of the store and was finally apprehended in a field about a quarter of a mile east of the store.

An examination of the building indicated that a hole had been cut through the roof of the building and into the ceiling of the hardware store section of the building. A safe in the hardware store had been opened and a cash box from the safe, containing some $600 in money, was found on the roof.

The first question presented to us is whether there was a fatal variance between the charge and proof of ownership of the building. The statute in question provides:

"(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, house trailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law approved July 11, 1957, as amended, railroad car, or any part thereof, with intent to commit therein a felony or theft. . . ."

It has been established by case law that ownership is an essential element of a burglary charge and must be proved by competent evidence. In People v. Picard, 284 Ill. 588, 120 N.E. 546 (1918), the court said, at page 590, as follows:

"An indictment or information must allege all the facts necessary to constitute the crime with which the defendant is charged, and if it does not set forth such facts with sufficient certainty it will not support a conviction. (People v. Stoyan, 280 Ill. 300.) Except in so far as the rule may be changed by statute, an indictment for burglary, whether it comes under the common law or under a statute, must allege the ownership of the building broken or entered, if it is known, or it will be fatally defective. (6 Cyc 209.) This indictment contains no allegation of the ownership of the freight car alleged to have been entered or broken into. The allegation that the car was in the possession of and being used by the Illinois Central Railroad Company is not a sufficient allegation of ownership. Had the indictment expressly alleged that the car was owned by the Illinois Central Railroad Company, proof that it was in the possession of that corporation would have been sufficient prima facie to sustain the allegation of ownership. In an indictment for burglary the ownership of the building entered may be laid in the occupant, whose possession is rightful as against the burglar. (Smith v. People, 115 Ill. 17.) It is not sufficient, however, in the indictment to merely plead the evidence of ownership, but the ownership must be specifically alleged."

However, see, People v. Peck, 29 Ill.2d 480, 482-484, 194 N.E.2d 245 (1963).

In People v. Smith, 341 Ill. 649, 173 N.E. 814 (1930), the defendants were charged with burglary of the dwelling house of Chester Olenec and the larceny of his property. At the trial one Nellie Olenec testified that she resided at the property in question with her husband without naming him.

The Supreme Court, at page 652, pointed out that the object in naming the person injured in a criminal prosecution is identification so that the accused cannot be again tried for the same offense, and where the record shows that the identity of the person injured is completely established beyond a reasonable doubt, that will be sufficient though proof of the Christian name may not be made, as where identity is shown by proof of the deceased's occupation and he was the only one of that occupation in the town or where the injured person testified, giving for his Christian name initials or abbreviations, but the circumstances leave no doubt of his identity as the injured person. There was no proof offered here that the husband of the witness, Nellie Olenec, was Chester Olenec or that the things stolen were the property of Chester Olenec and, for that reason, the judgment was reversed and remanded.

A virtually identical situation occurred in People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182 (1955), where the defendants were charged with breaking and entering the dwelling house of Anthony Wright with intent to steal the personal goods of Anthony and Ophelia S. Wright. The only evidence bearing on the allegations was from a witness who identified herself as Mrs. Octavia S. Wright. She testified to her apartment having been burglarized and certain items belonging to her husband as having been taken. Again, the witness did not name her husband and as a result, neither the names of Anthony Wright or Ophelia Wright appear in the testimony. The court again reversed and remanded the cause and, in its opinion, pointed out that the purpose served by alleging the name of the person or property injured is to enable the accused to plead to a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. The court further pointed out that, since the requirement ...


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