APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Cook County. After a bench trial, the defendant was found guilty of burglary and was sentenced to a term of not less than five nor more than twenty years in the Illinois State Penitentiary.
Jamie Sosa, the defendant, was indicted on September 18, 1968, and charged with burglary, attempted theft, and aggravated battery. On the night of August 6, 1968, at about 1:30 A.M., Mrs. Alexander Dunn, Jr., heard a noise in the garage and awakened her husband, who noticed the taillights of his car were on. He testified that both garage doors had been locked the night before. Dunn went to the garage and found the defendant, Sosa, sitting behind the wheel of his 1968 automobile. Upon being discovered, Sosa got out of the car and started swinging at Dunn with a knife. Dunn's eighteen year old son came out of the house, subdued Sosa, and held him until the police arrived. The policeman testified when he arrived he found the Dunns were holding Sosa, the garage overhead door was open, and the ignition wires of the car were cut under the dashboard.
Sosa testified he drank a pint of gin and a couple of beers before he left his house, and then went to several taverns for a few more drinks. He stated that on his way home Alexander Dunn and his son attempted to rob him and then beat him.
• 1, 2 The defendant's first assertion of error is that his intent to steal the car was not proved beyond a reasonable doubt. He cites People v. Glickman, 377 Ill. 360, and People v. Soznowski, 22 Ill.2d 540. In Glickman, the court stated:
"The gravamen of the crime of burglary is the felonious intent of the defendant at the time he enters. People v. Myler, 374 Ill. 72, 73."
In Soznowski, the court stated:
"The gravamen of the offense of burglary is the intent with which the building is entered. [Citations.] Not only must the entry be charged and proved, but also the intent to commit a felony or larceny. People v. Mendelsohn, 264 Ill. 453, 457. Although intent is a matter of fact and cannot be implied as a matter of law, criminal intent may be shown by circumstantial evidence. People v. Weiss, 367 Ill. 580, 586; People v. Martishuis, 361 Ill. 178."
This court agrees the authorities cited state the law, however they do not help the defendant. We think the circumstantial evidence strongly indicates it was the intention of the defendant to steal the car when he entered the garage. On the stand the defendant claimed he was near the garage as a result of struggling with the Dunns after he was accosted on the street.
• 3 In his brief defendant attempts to rely on a conversation with Dunn. Dunn testified that while they were waiting for the police the defendant told him he went into the garage to take a nap. On the stand the defendant testified he had no conversation with Dunn. Nevertheless, if the defendant really entered the car to take a nap, it is inconsistent that he would cut the ignition wires and sit behind the wheel rather than stretching out on one of the seats. It is also significant that the trial judge was unimpressed with the defendant's credibility:
"Your story that you told in this court is one of the most incredible stories that I've heard totally incapable of belief. This court does not believe it completely, has no reason whatsoever to doubt, for one moment, or one iota the testimony given here by three witnesses on behalf of the State of Illinois."
Sosa also points out the ignition wires were cut and infers that if he were intending to seal the car, he would not have immobilized it. It seems obvious he was attempting to jump the ignition and start the car rather than immobilizing it. He also says in his brief the garage door was down and locked, making it impossible for the car to leave the garage. On the contrary, both Dunn and the police officer stated the overhead door was raised.
The defendant next contends he was so intoxicated he could not form the requisite intent for burglary and suggests the record shows ample evidence of intoxication. But there is no evidence outside of his own testimony, which the judge deemed to be unworthy of belief. In addition, he could not name one tavern he had been to when cross-examined, and Alexander Dunn stated he could not smell alcohol on the defendant's breath, even though he was close enough to have detected it.
• 4 Finally, the defendant complains the sentence was too severe. Section 19-1(b) of the Code of Criminal Procedure provides for a sentence of imprisonment in the penitentiary for any indeterminate term within a minimum of not less than one year. The sentence in this case, five to twenty years, conformed to the statute and was imposed after a hearing in mitigation and aggravation establishing that the defendant had been convicted of attempting to commit a lewd act, tampering with an automobile, larceny of an automobile, and burglary. In view of this record it cannot be said the sentence constituted a "great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of Section 11 of Article II of the Illinois Constitution ...