APPEAL from the Circuit Court of Pike County; the Hon. LYLE E.
LIPE, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 20, 1974.
The defendants were charged in a two-count indictment with burglary and possession of burglary tools. The first indictment contained no allegation of ownership of the burglarized telephone booth here involved and for that reason that indictment was nolled and another indictment returned.
Following a jury trial, the defendants were found guilty of both charges. A post-trial motion as to the defendant Nora E. Hammond asked that the jury's verdict be set aside or, in the alternative, that a new trial be granted. This motion asserted that the trial court committed error in denying a motion for directed verdict; that the jury's verdict was contrary to the evidence; that the State failed to prove essential elements of the charge and other technical errors. A motion in arrest of judgment on behalf of Donald J. Hammond was filed and by that motion he sought to have the jury's verdict set aside, or in the alternative, a new trial. He specifically alleged that the State failed to prove ownership of the telephone booth and other technical errors. A separate motion for a new trial was filed on the same day and it asserted error in failure to direct a verdict; that the proof was not sufficient to convict; errors in instruction; and other technical errors. Nothing in that motion expressly related to failure of the State to prove ownership of the telephone booth.
Upon hearing of the post-trial motions, the trial court made a specific finding that there was absolutely no evidence showing ownership of the burglarized telephone booth and by reason of this deficiency the evidence was insufficient to sustain a conviction. The trial court ordered a new trial. He denied the motions for acquittal. The trial court denied any relief sought in the post-trial motion with reference to Count II and entered judgments thereon. Defendant Donald Hammond was sentenced to not less than 1 nor more than 2 years in the penitentiary and the defendant Nora Hammond was granted probation. This appeal is from that action of the trial court.
• 1 The parties in their original briefs did not raise nor discuss the issue of whether or not this court has jurisdiction to review the order of the circuit court ordering a new trial as to the burglary charge. This court has a duty to inquire as to its own jurisdiction. Since the order for a new trial is not a final judgment, we did raise the question of jurisdiction, and supplemental authority was requested and filed upon the issue.
• 2, 3 The final judgment in a criminal case is a sentence. (People ex rel. Filkin v. Flessner, 48 Ill.2d 54, 268 N.E.2d 376.) Obviously, the order for a new trial in this case is not a final judgment in that no sentence was imposed. We do have jurisdiction, however, to review the trial court proceedings as they relate to the offense of possession of burglary tools. Furthermore, it is our studied conclusion that we have jurisdiction to review the order providing for a new trial as part and parcel of the total case pending before this court upon appeal. Supreme Court Rule 615 (Ill. Rev. Stat., ch. 110A, par. 615(b)(2)) provides that this court on appeal may set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken. The present supreme court rule is former section 121-9 of the Criminal Code of 1963 (Ill. Rev. Stat., ch. 38, par. 121-9) without any change in substance. The Committee Comments as to the original section state:
"In view of the purpose of this entire article to provide one complete, full and adequate review, and to do justice to the defendant and the People, this subsection is necessary and consistent with the provisions of subsection (b) enlarging the power of the reviewing court on appeal.
Subsection (b) is, again, consistent with the philosophy of the entire article that, in the interests of fairness and justice to both the defendant and People when the defendant appeals (or the State in those situations authorized by Article 121), and in the interest of reducing the number of appeals and re-trials and delays in each case, the reviewing court should have the power to do complete justice when the case is before it. Of course, the reviewing court is limited by law and the record before it in each case, but within the scope of these limitations it should be empowered to act."
To ignore the order providing for a new trial and to review the conviction for possession of burglary tools upon the facts of this case would effectively emasculate the purpose of review as set forth in the quoted Committee Comments.
The supplemental brief filed by the appellants relates to the application of Supreme Court Rule 366 and Supreme Court Rule 304, neither of which are expressly applicable to criminal proceedings. (See Supreme Court Rule 612.) We note, however, that in People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, the supreme court acting under Rule 366 noted that if a case is properly before the court upon one issue, the court would have jurisdiction with reference to the other issues although the order as to those issues was not final and appealable.
The order of the circuit court providing for a new trial upon the specific finding by that court that the evidence was insufficient to convict by reason of the failure to prove ownership of the burglarized premises is in error. In People v. Brown, 99 Ill. App.2d 281, 241 N.E.2d 653, this issue was discussed in much detail. The conclusion reached in Brown was that when the evidence is insufficient to convict, a new trial is not ordered but a conviction would be reversed. In People v. Darling, 7 Ill. App.3d 687, 288 N.E.2d 502, in a supplemental opinion filed upon rehearing we specifically approved the decision in People v. Brown and stated:
"A successful prosecution for a criminal act requires an indictment, information or complaint charging the defendant with every essential element of the precise crime charged with proof beyond a reasonable doubt supporting every material element of that crime. The consequences of a failure to meet this test was ably and thoroughly discussed in People v. Brown, 99 Ill. App.2d 281, 241 N.E.2d 653. In that case there was failure on the part of the State to prove an essential element of the offense and the court there held that on appeal the State was not entitled to a second chance to rehabilitate its case at the expense of the defendant's right to acquittal on the evidence which the State did see fit to present."
In People v. McCoy, 44 Ill.2d 458, 256 N.E.2d 449, the Illinois Supreme Court stated: "Since the trial placed defendant in jeopardy and the error is the failure of the evidence to support the ...