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People v. Holmes

JULY 2, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH HOLMES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. ROBERT J. COLLINS, Judge, presiding. Judgment modified and as modified, affirmed.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Defendant Kenneth Holmes was charged with the crime of burglary. After a jury trial, he was found guilty of that charge and sentenced to a term of twelve to thirty years. He appeals, contending that he was not proved guilty of burglary beyond a reasonable doubt, and also that the sentence imposed by the court was excessive. The evidence adduced at trial was as follows.

On January 4, 1969, about 9:30 a.m. defendant was apprehended by the owner in the basement of a wholesale meat market located at 2025 West Cermak Road, Chicago. The basement of the premises was used for the storage of equipment such as handtrucks.

The owner of the meat business, Nick DiCarlo, testified that on the previous evening he had installed a new lock on the basement door, had removed a wooden stairway and had boarded up a wall. On the morning in question, he and his wife went down to the basement. He was carrying a gun and flashlight because the basement had been broken into a few days earlier. He noticed defendant sitting in a chair by the wall; he flashed his light at defendant and told his wife to call the police. Defendant was awake. Defendant's clothes were soiled and full of coal dust, and his shoes had plaster on them. There was a coal bin in the basement. The lock to the basement door was gone and there was a glove holding the door shut. DiCarlo asked defendant what he was doing there, and he replied: "None of your f____ing business." Defendant then asked DiCarlo for a cigarette, and DiCarlo gave him one. Defendant subsequently started to come at DiCarlo, but he fired a warning shot and held him at gunpoint for the police. DiCarlo testified that he informed the Grand Jury that defendant said nothing to him. He explained this by stating that he was too embarrassed to use defendant's language.

Officers Oleczkiewicz and Ross of the Chicago Police Department responded to the call made by the owner's wife and arrested defendant. A search of defendant revealed that he had a glass cutter and a pair of gloves covered with coal dust in his pockets. Officer Ross testified that the lock on the basement door had been pried off but that he did not make a thorough search of the area for the lock. He also saw a little storage area with an open door which had been pried open.

Defendant testified that he was walking on Cermak Road at about 8:30 a.m. or 9:30 a.m. It was a very cold day, and he had no place to sleep. He noticed a building in which he used to play as a child, went downstairs and found the door open. He entered the basement and laid down on a lounge chair. DiCarlo found him sleeping. Defendant also testified that he did not enter the building in order to commit a theft.

On cross-examination, defendant stated that he had written a letter to his mother from the County Jail asking her to change her story. He stated in the letter that he was sorry to ask her to lie, but asked that she testify that he did not sleep at home on the night of the incident. On redirect examination, defendant testified that he had slept at home on the evening in question, but only for an hour, and left before his father came home.

Defendant first contends that he was not proved guilty of burglary beyond a reasonable doubt, arguing that the evidence failed to establish the requisite intent on his part. The Criminal Code, Ill Rev Stats 1969, c 38, § 19-1 (a) provides in part as follows:

"A person commits burglary when without authority he knowingly enters . . . a building . . . with intent to commit therein a felony or theft."

Defendant maintains that the State failed to prove that he intended to commit a felony or theft, and that the evidence supported a hypothesis that he was attempting to sleep.

While intent must be proved beyond a reasonable doubt, it may be inferred from the facts and circumstances. People v. Gooch, 70 Ill. App.2d 124, 217 N.E.2d 523 (1966). In People v. Jackson, 98 Ill. App.2d 296, 240 N.E.2d 482 (1968), the court held at p 300:

"Defendants argue that there was reasonable doubt that a crime was committed because nothing was taken from the station and there was no testimony that anything had been disturbed or removed. However, the crime of burglary is complete upon the entering with intent to steal, and it is not essential to allege or prove that anything was taken."

In People v. Rossi, 112 Ill. App.2d 208, 250 N.E.2d 528 (1969), the court held at pp 211-12:

"In the absence of inconsistent circumstances, proof of unlawful entry into a building which contains personal property that could be the subject of larceny gives rise to an ...


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