Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. JOHN S. GHENT, JR., Judge, presiding.
Affirmed in part, reversed in part.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Defendant was found guilty of the offenses of Burglary and Theft after a jury trial, and sentenced to the penitentiary for a term of not less than one year nor more than five years on each of the charges.
Appealing from the judgment, defendant contends: that the indictment is insufficient to confer jurisdiction on the court; that there is a failure of proof of entry of the building with intent to commit a theft or felony; that the corporate existence of the owner of the property in which the alleged offenses occurred was not established; that the proof of the identity of the defendant was insufficient; that the evidence is insufficient to sustain the conviction; that the court erred in the giving of a certain instruction; and that the verdict, signed only by the foreman, was void.
The indictment was in two counts. *fn1
Directed to the indictment, defendant's arguments are that the indictment is void because it fails to recite that the grand jury, which returned it, was duly organized at a court then in session, fails to recite that the grand jury was duly chosen, selected and sworn, fails to recite that the grand jury, upon oath, presented the indictment and fails to recite its own commencement for each charge; that it does not set forth the nature and elements of the offense and fails to state the time and place of the offense; and that it does not commence "In the name and by the authority of the People of the State of Illinois," and does not conclude "Against the peace and dignity of the same." All of these contentions have been previously ruled on contrary to defendant's position. Recitation of the organization, selection and swearing of the grand jury is not required. People v. Sellers, 30 Ill.2d 221, 223, 196 N.E.2d 481 (1964); People v. Shockey, 66 Ill. App.2d 245, 248, 213 N.E.2d 107 (1966).
The body of the indictment framed in the language of the burglary and theft statutes has been held to properly set forth the nature and elements of the crime charged. People v. Reed, 33 Ill.2d 535, 538-9, 213 N.E.2d 278 (1965); the failure to specify the time and place in the indictment does not make the indictment insufficient if the date and county are set forth in the charge. People v. Blanchett, 33 Ill.2d 527, 533, 212 N.E.2d 97 (1965).
The commencement and conclusion required under the former constitution no longer applies. People v. Petruso, 35 Ill.2d 578, 583, 221 N.E.2d 276 (1966); People v. Marks, 63 Ill. App.2d 384, 387, 211 N.E.2d 548 (1965).
We find also that the chattels were sufficiently described in the indictment. People v. Graves, 331 Ill. 268, 272, 273, 162 N.E.2d 839 (1928). We find, additionally, that the allegation of value in the indictment is sufficient. People v. Kelly, 66 Ill. App.2d 204, 210, 214 N.E.2d 290 (1965).
On a separate trial of this defendant there was the testimony of Donald Smith, a police officer, that at approximately 12:45 a.m. on November 4th, 1966, in response to a call he drove with officer Lindquist to an area on Sixth Street. He observed a 1954 blue Oldsmobile backing out from the alley on the east side of the street with no headlights on. This was approximately a block and a half from the Johnson-Guler Appliance Store on Seventh Street. As the car backed out he noticed that it had two white taillights (also described as absent the red lens), as the car stopped after pulling out of the alley. There was one subject in the front seat and one in the back. The headlights were lighted after turning on Third Avenue. The officers followed the car while it turned on Third Avenue and they pulled it over just west of Fifth Street. Both subjects got out of the car and approached the squad car defendant from the driver's side, Hobson from the rear. Both officers got out and approached the Oldsmobile and the witness saw a television set upside down between the front and back seat on the floor. In addition to the portable T.V. set, he found two Sony Tape Recorders and a Saturday Evening Post magazine dated October 8th, 1966, in the car. William Hobson admitted breaking the window and taking the stolen items, but denied that defendant was involved, stating that he stopped the defendant, who was driving down the street, and paid him some money to take him home with the items.
Officer Lindquist testified substantially to the same effect as Officer Smith. In addition, he testified that he recognized the defendant and told him what he was looking for and asked him if he had a television set in his car, and that the defendant said he did not. About that time Officer Smith told him that he had seen the television set in the car. At the station Hobson told the witness that he lived at 319 Wall Street and that he had never seen the defendant before, but later he said he lived at 319 Walnut Street, which is where the defendant lives.
Detective Joe Brown testified that he was sent to investigate the incident in the early morning hours of November 4th and he found three torn pages of a magazine inside the broken window of the appliance store along with a large limestone rock lying on the floor. (Both the magazine and the torn pages went to the jury to compare.)
Andrew Guler, owner of Johnson-Guler Appliance Company, Inc., testified that he was called by the police to come to his store at 227 Seventh Street, Rockford, Illinois, at 1:30 or 2:00 a.m. on November 4th, 1966. He observed that the front window of the store in front of the T.V. section had been broken out, and later identified a 19" General Electric Portable Television set and two Sony Tape Recorders as being in the store window when he closed that day and missing when he was called by the police.
The defendant testified that about 1:00 a.m. he went to a liquor store across the street from the appliance store and bought a bottle of wine; that after leaving the store he saw a man walking down the street with a T.V. in his hand near Fifth Street. The man waved him down and asked him for a ride to the Dolwin Hotel; that the man got in the front seat and just as they were pulling away the police came. He denied backing out of an alley. He testified that his car had extra large springs so that the rear was high, and that it was not possible to stand at the rear of the car and look at the floor; that there were three lights in operation, two headlights and a right rear taillight which was red, and only the left rear taillight was not in operation. He testified that he did not know the name of the man who flagged him down until after he got out of jail on bond, and that no one lived with him at his address. The defendant denied that the magazine was in his car and testified to a search of his apartment in his absence.
Rose Sartino, a partner in the liquor store, called as a rebuttal witness for the State, testified that on November 3rd, 1966, she worked at the store until closing time and that it closed at 11:00 p.m. every Thursday night. This was not based on any ...