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People v. Davis

ILLINOIS APPELLATE COURT — FIFTH DISTRICT


JUNE 29, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH DAVIS, DEFENDANT-APPELLANT.

APPEAL from the Circuit Court of Union County; the Hon. WILLIAM A. LEWIS, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant entered a plea of guilty to an information charging him with the offense of burglary and was sentenced to one to three years imprisonment. The sole issue raised by defendant in this appeal is whether the information sufficiently alleges the ownership of the building burglarized.

The information in question reads: "That on October 30, 1971 in Union County, Kenneth Davis and Owen Birdsong, Jr. committed the offense of burglary in that defendants, when without authority, knowingly entered a building, namely The Anna Junior High School building located at 301 South Green Street in Anna, Illinois, with intent to commit therein a Theft, in violation of Paragraph 19-1(a), Chapter 38, Illinois Revised Statutes."

Defendant argues that the information is void for its failure to allege that the ownership of the building was in an entity other than the defendant. The ownership of the building could have been shown by the addition "District Number 37" after the "Anna Junior High School."

At one time an allegation of ownership of the premises was an indispensable part of an indictment for the crime of burglary (see People v. Picard, 284 Ill. 588, 120 N.E. 546) but in People v. Stewart (1961), 23 Ill.2d 161, 177 N.E.2d 237, the requirement of an allegation of ownership was termed an "empty formality," the court stating:

"Our opinions have emphasized that the purpose of the requirement that the ownership of the building be stated is to enable the accused to prepare for trial, and to plead former acquittal or conviction under the indictment in bar of another prosecution for the same offense. * * * It has also sometimes been said that such an allegation is required in order to show that the building was not the property of the accused and to negative his right to enter it. * * * When an allegation of ownership may be established, not by proof of ownership but by proof of occupancy and possession, a requirement that ownership must be alleged has become an empty formality. The premises involved are effectively identified, and the rights of the accused are fully protected by an indictment that charges the unlawful entry of a building in the possession of another. We hold, therefore, that the indictment in this case is sufficient."

This position was reaffirmed in People v. Peck (1963), 29 Ill.2d 480, 194 N.E.2d 245 and People v. Whittaker (June 1970), 45 Ill.2d 491, 259 N.E.2d 787. These Supreme Court decisions have been followed by Appellate decisions. People v. Springs, 2 Ill. App.3d 817, 277 N.E.2d 764 (1972) and cases cited. Approximately four months after the decision in Whittaker the Supreme Court decided People ex rel. Ledford v. Brantley (October 1970), 46 Ill.2d 419, 263 N.E.2d 27, in which the majority completely omitted any mention of or reference to the Stewart, Peck and Whittaker cases and returned to the rule followed prior to the Stewart case, holding, "In view of the fact that there is no allegation of ownership of the dwelling burglarized this indictment is fatally defective." The Brantley case was followed by this court in the case of People v. George, 130 Ill. App.2d 820, 264 N.E.2d 273 which was a case where the indictment was identical to that in the Brantley case except for the name of the defendant.

The indictment in the Brantley case was as follows: "That on August 29, 1968, in Saline County, Larry Ledford committed the offense of burglary in that he did then and there knowingly and without lawful authority enter into a dwelling in Harrisburg, Illinois, with intent to commit therein a theft, and did take without authority from is (sic) rightful owner, H.H. Barter, in violation of Paragraph 19-1, Chapter 38, Illinois Revised Statutes." We think it noteworthy that the indictment not only fails to allege ownership of the premises it also failed to allege either its location or possession. The indictment in the case under consideration stands in sharp contrast to that of the Brantley case. Not only was the name of the building properly stated (a public school building with no possibility of confusion or duplication of name), it also listed the street address of the building. It is difficult to see how the identity and location of the building could be more specifically stated. Certainty would not be enlarged by the allegation that the school building in question was the property "of District Number 37." To require such an addition would indeed be an "empty formality." The building described in the information is clearly in possession of another than defendant, clearly not the property of defendant and effectively identified as to location. These factors are more than adequate advise to defendant to enable him to know the crime with which he is charged, to enable him to prepare a defense and to plead the judgment in bar of a future prosecution.

Since on the basis of the wording of the indictment the instant case is closely aligned with Stewart, Peck and Whittaker and disparate with the wording of the indictment in Brantley, we feel compelled to hold the indictment sufficient. Under strikingly similar circumstances the same result was reached in People v. Springs, supra.

Judgment affirmed.

G. MORAN, P.J., and CREBS, J., concur.

19720629

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