APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant entered a plea of guilty to the crime of Attempt Burglary. Probation was denied and defendant was sentenced to one to three years in the penitentiary. The defendant contends that the judgment of conviction is invalid because the indictment failed to charge an offense. The indictment charged that:
"Mercy Santiago and Larry Woodward on the 30th day of November, 1970 at and in the county of Madison, in the State of Illinois, committed the offense of attempt, in that they knowingly, with the intent to commit the offense of burglary, did use a tire tool in attempting to open the front door of the building of Robert L. Rust, known as Rusty's Service Station and located at 2700 Brown Street, Alton, Illinois, which act constituted a substantial step toward the commission of the offense of burglary."
• 1 The crime of Attempt (Ill. Rev. Stat. 1971, ch. 38, sec. 8-4(a), requires the intent to commit a specific offense and a substantial step in that direction. (People v. Matthews (1970), 122 Ill. App.2d 264, 258 N.E.2d 379.) "A person commits burglary where without authority he knowingly enters or without authority remains within a building * * * with intent to commit therein a felony or theft." Ill. Rev. Stat. 1970, ch. 38, sec. 19-1.
• 2 Defendant contends that since an attempt must be committed with the intent to accomplish some specific offense, it is necessary that the State allege all essential elements of the principal offense, including any specific intent required for that offense, as well as alleging that a substantial step was taken towards the commission of that offense. Since the essence of the crime of burglary is the entry of a building with intent to commit therein a felony or theft (People v. Stanton (1959), 16 Ill.2d 459, 158 N.E.2d 47; People v. Hansen (1955), 5 Ill.2d 535, 126 N.E.2d 243), the issue is whether this specific intent must be charged in the indictment for attempt burglary.
• 3 The general rule in Illinois is that all elements essential to the proof of a crime must be alleged in an indictment and that, where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. People v. Billingsley (1966), 67 Ill. App.2d 292, 213 N.E.2d 765; People v. Smith (1965), 57 Ill. App.2d 74, 206 N.E.2d 463; People v. Pronger (1964), 48 Ill. App.2d 477, 199 N.E.2d 239.
There do not appear to be any cases in Illinois which have dealt with the specific issue raised in this case. However, in People v. Matthews (1970), 122 Ill. App.2d 264, 258 N.E.2d 378, defendant appealed his conviction of Attempt Theft, and Possession of Burglary Tools. One of his contentions on appeal was that the count of the indictment charging Attempt Theft was insufficient on the grounds that, while it charged defendant with intending to deprive the owners of the benefit of the property, it failed to allege the intention of depriving the owners permanently. The Appellate Court agreed with defendant by holding, at 382:
"Ill. Rev. Stat. 1967, Ch. 38 16-1 requires that the particular act and the requisite mental state must coincide to constitute the offense of theft * * *. In each of the described mental states the word deprive is qualified with the word permanently. `Permanently deprive' is defined in Chapter 38, supra, section 15-3, and clearly cannot be included within the definition of the term `deprive'.
An indictment which fails to allege the requisite mental state or to describe acts which indicate such mental state is fatally defective. See People v. Hayn, 116 Ill. App.2d 241, 245, 253 N.E.2d 575 (1969); People v. Slaughter, 67 Ill. App.2d 314, 214 N.E.2d 20 (1966) (Abst.)."
• 4 The Matthews case is cited with approval in the LaFave and Scott, Handbook on Criminal Law 429 (1972), wherein the authors emphasize: "If the charge is attempt theft and theft is defined as requiring an intent to permanently deprive the owner of his property, then that same intent must be established to prove the attempt". Since burglary requires an intent to commit felony or theft within the building in addition to the intent to break and enter, it would follow from this reasoning, then, that the further intent to commit a felony or theft must be charged in the indictment for attempt burglary since said intent is an essential element of the offense of burglary.
• 5 That the intent to commit a felony or theft is an essential element of Attempt Burglary is emphasized in People v. Ray (1972), 3 Ill. App.3d 517, 278 N.E.2d 170, a case in which the court held that the evidence was insufficient to sustain a conviction for attempt burglary. In discussing the elements of the offense, the court stated, at 172:
"[I]t was incumbent upon the prosecution to prove the following elements: (1) that the accused intended to knowingly and without authorization to enter the building; (2) while concurrently intending to commit therein either a felony or a theft; and (3) that a substantial step was taken towards making such an entrance."
Furthermore, in People v. Whittles (1968), 93 Ill. App.2d 419, 235 N.E.2d 876, the defendants appealed from convictions of attempt burglary. The indictment charged that defendants "pried a hole in the roof of a building with intent to commit the offense of burglary by entering the building with the intent to commit a theft therein". Upholding the convictions, the court emphasized, at 878:
"The first part of the charge refers to an attempt to commit a specific offense: Burglary. The second part adds facts, which, if they took place, would constitute the offense of burglary. When they were not completed but a formal step was taken for that purpose, the offense is attempted burglary. The indictment is ...