APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
James Saunders was indicted for burglary "in that he, without authority, knowingly entered into the dwelling house of Clara Perkins, with the intent to commit the crime of theft * * *." He was found guilty by a jury and was sentenced to the penitentiary for a term of not less than five or more than fifteen years.
Saunders contends that the State did not prove that Clara Perkins was in lawful possession of the burglarized premises and did not prove that the person who entered the premises intended to commit theft. Saunders also complains of two trial errors: that the prosecutor insinuated that he had made prior statements inconsistent with his testimony but did not present proof of these statements; and that a letter and a photograph were admitted into evidence despite their not being disclosed by the State pursuant to his motion for the inspection of all physical evidence.
Mrs. Perkins, her daughter, sister, and a three-year-old nephew, occupied an apartment on South Michigan Avenue, Chicago. In midmorning in January 1968, she and her sister left the boy, who was asleep, alone in the apartment. When they returned a half-hour later policemen were in front of their home. After the officers spoke to her, she went inside and discovered that a camera and portable television set were missing. She was then taken to the officers' squad car where she saw Saunders and the missing articles.
On the same morning, Henrietta Goodwin, who lived on the opposite side of Michigan Avenue, heard a child crying. She went to a window and saw a small boy standing on the stairs leading to the outside door of an apartment on the west side of the street. A moment later she saw a man take the child by the hand, go up the steps and into the apartment. Mrs. Goodwin was preparing to go to work; she left her home, crossed the street and waited for a south-bound bus. As the bus approached, she saw the same man the defendant Saunders walk out of the apartment carrying a television set and a camera. He was about forty feet from her and she watched him walk down the street and turn east. She boarded the bus, rode a short distance, got off and, while the bus waited, informed two police officers seated in a squad car of what she had seen. She gave them Saunders' description and told them where he was walking.
The officers sped to the scene, saw Saunders and stopped him. He had a camera and a television set in his hands. He was put in the squad car, taken to Mrs. Perkins' home and placed under arrest when she identified the stolen articles.
At his trial, Saunders denied taking the articles from Mrs. Perkins' home. He testified that he acquired them as collateral for a twenty-dollar loan made to a man named Lee Jones, whom he met on the street. Jones, he said, was on his way to pawn the television set and camera but, instead, borrowed the money from him and gave him the articles as security. Saunders' credibility was impeached by evidence of two prior convictions for robbery.
• 1-3 To sustain a burglary conviction it is only necessary for the State to plead and prove occupancy or possession of burglarized premises in a named party whose occupancy or possession is rightful as against the alleged burglar. It is not necessary to prove ownership of, or precise legal title in, the premises. (People v. Whittaker (1970), 45 Ill.2d 491, 259 N.E.2d 787; People v. Knox (1968), 98 Ill. App.2d 270, 240 N.E.2d 426.) The indictment charged that Saunders entered the dwelling house of Clara Perkins. The State's evidence showed that Mrs. Perkins occupied the apartment and that the man who entered the apartment did so without her knowledge or consent. This was sufficient to sustain the burglary charge.
• 4-6 The defendant admits that the evidence was adequate to establish theft but contends that it was inadequate to establish burglary. The intent to commit a felony or a theft on the part of a person who knowingly enters into or remains within a building without authority is an essential element of the crime of burglary. (Ill. Rev. Stat. 1967, ch. 38, par. 19-1.) It is argued that the State did not prove that the person who entered Mrs. Perkins' apartment intended to steal her property; that the person did an act of kindness in taking the child out of the cold and that he may have observed the camera and television set lying in plain view, succumbed to temptation and formed the intent to take them at that time. Returning the child to its home was an act of kindness; going inside without authority and remaining there was not. In burglary cases, intent is seldom proved by direct testimony; it must be inferred from the circumstances surrounding the offense. Whether the required intent is proven is a question for the trier of fact. The evidence was such that the jury could have concluded that when Saunders saw the unattended child outside an open door he surmised that no one might be at home, and when he found this to be true he decided to take advantage of the situation.
• 7-10 The first alleged trial error arose after the defendant testified that he received the camera and the television set from Lee Jones. The prosecutor questioned him as follows:
"Q. Have you ever told anyone prior to today's date that Mr. Lee Ernest Jones gave you this camera as collateral for a loan?
Q. Did you tell that at the preliminary hearing * * * ?
The Court: What is your ...