APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
KAPLAN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Neal McCoy, was indicted on the charge of burglary. The cause was tried before a jury and resulted in a verdict and judgment of guilt. He was sentenced to a term of three to eight years in the Illinois State Penitentiary.
On appeal, defendant contends that (1) the court improperly instructed the jury as to the element of intent in the crime of burglary, (2) the State failed to prove him guilty beyond a reasonable doubt, (3) the court erred in admitting certain photographs without proper foundation and (4) the court erred in admitting his oral statement made while in police custody when there was no showing that he had waived his right to counsel.
Herbert Cohen, the owner of Hermel T.V. Sales, 1300 East 63rd Street, testified that on April 6, 1968, he closed the store at 4:30 or 5 P.M. because there was looting on the street. The premises had locked iron gates. The next morning he found that the gates had been opened and the glass in the door knocked out. His stock of T.V.'s was nearly gone.
Duane Hall, a photographer for the Chicago Sun-Times, testified that he was on assignment in the area at about 10:30 P.M. on the evening in question. He observed a man in the subject store, left car and walked back toward the store. He saw a woman outside the door and a man standing at the door behind a T.V. set. The man ran back to the middle of the store when he saw Hall, and he snapped some pictures of him. The witness waited in the street until a police car came along and told the officer what he had seen. He and the officer then walked to the store, where the officer arrested defendant. The witness noticed that the metal grating on the front door was down, permitting entry, and that the glass in the door was broken. Hall commented that a person would have had to climb over the set to gain entrance. He also stated that there were about five people in the street near the store and that there were no policemen or National Guardsmen in the area at the time. Three of the witness' photographs were admitted into evidence as People's Exhibits 1, 2 and 3. He identified defendant as the man in the pictures.
Officer P. Fanella testified that on the evening in question, a man stopped him on the street in front of Hermel T.V. Sales, and that he then went to the store. He observed defendant in the back of the store lying on the floor behind a T.V. There was a T.V. set balanced in the doorway, half in and half out of the store. He saw a woman who claimed she was defendant's wife standing outside. Some other officers removed the T.V. set from the doorway and defendant came out. The officer commented that to get into the store with the T.V. in the doorway, a person would have had to climb over the T.V. The store was disarrayed and the glass in the door and steel grating over the door were broken.
Defendant took the stand in his own behalf. He testified that he had served four years in the Illinois State Penitentiary for grand larceny and was released in October, 1966. On the evening in question, he was going to visit his cousin at 64th and University. Defendant parked his car at 63rd and Maryland because there were National Guard and police in the vicinity and people were running and shooting. He and his wife walked about five blocks. When he saw men running towards them, shooting and throwing rocks, and yelling "Black Stone Ranger," defendant dove into the store. He denied breaking the door or moving any T.V. sets. Defendant also denied having any intention to steal, and said he was on the floor with his hands over his head because he was scared. He identified himself as the person behind the T.V. set in People's Exhibit 1. McCoy said a police officer told him to get up off the floor. He told the officer he was glad to see him because he was scared and that he had run into the store because people were running, shooting and throwing rocks. He further testified that when he dove into the store, his wife kept running. When the police came, two or three minutes later, his wife was outside.
Officer Fanella was recalled as a rebuttal witness. He testified that after he arrested McCoy and before he had any conversation with him, he advised defendant that he was entitled to stand mute, that anything he said could be used against him, that he was entitled to have an attorney, and that if he could not afford one, one would be supplied to him. Defendant then said that he was pushed into the store by the crowd.
• 1 The defendant first contends that the court improperly instructed the jury as to the element of intent in the crime of burglary. The transcript of evidence contains the wording of the instruction complained of, which was given to the jury orally by the court as follows:
"* * * the State must prove the following propositions:
1. First, that the defendant knowingly entered a building or any part thereof.
2. That the defendant did so without authority.
3. That the defendant did so without the intent to commit the crime of theft." (Emphasis ours.)
The Supplemental Record filed by the State shows that the pertinent written instruction given to the jury without objection correctly stated that "the defendant did so with the intent ...