APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 10, 1974.
The defendant, William Tisley, was charged in three separate indictments with the offense of arson in connection with fires at an apartment building at 612 and 614 North Spaulding on July 9, 1971, August 6, 1971, and September 4, 1971. He was also charged with the murder of four persons who were killed in the September 4, 1971, fire. After a bench trial, he was found guilty of the August 6, 1971, arson and acquitted on the other charges.
The indictment on which he was found guilty alleged that he, "by means of fire knowingly damaged the building of Uglee Hopson, in violation of Chapter 38, Section 20-1, of the Illinois Revised Statutes 1969."
Uglee Hopson executed a contract to purchase the building at 612 and 614 North Spaulding from Roy Walker for $20,000 in April, 1971. There were nine tenants in the building, and May 1 was the first time that he collected the monthly rents. Mrs. Tisley, the mother of the defendant, paid only $90 of her $125 monthly rent. In June, Hopson again collected rents and the Tisleys failed to pay anything. Hopson gave Mrs. Tisley 5 days' notice, but she did not move out. In July, he again collected rents, and Mrs. Tisley did not pay. She moved out sometime that month.
There was a fire in the building on July 9, 1971, which started on the second floor of the building east of the Tisley apartment. On August 6, 1971, there was another fire in the building. The area burned was from the basement to the third floor. On September 4, 1971, there was a fire which rendered the building unhabitable. Hopson testified that he was trying to get the people to move from the building, but he had given up going to the building because the people were so rough. He filed 5-day notices against the tenants and collected no rents after July. He wanted the people out of the building so that he could board it up and get it repaired.
Walker, the contract seller, showed no interest in taking the building back, and Hopson never executed any document conveying the interest back to Walker. Before the fires he made several improvements to the building including a new hot water heater and provision for garbage collection. He had fire insurance but never made a claim because he was interested in the building and not the insurance. He continued to provide garbage collection, light, water and heat.
Isaac Johnson, Sr., lived at 614 North Spaulding until July 9, 1971, on which date he saw the defendant around the building several times. The fire occurred late in the evening, and Johnson entered the building after the fire was out. He noticed that in the Tisley's apartment everything was burned, and he testified that the steam "sort of smelled like gasoline."
Isaac Johnson, Jr., 14 years old, saw the fire coming out of the second floor. He went up to his apartment and took his younger brothers and sister downstairs. He went through the gangway leading to the back of the building and saw the defendant and his brother running toward him. When he reached the back of the building, he heard the defendant say: "I got that house and I am going to get Ida Well's house next."
Hattie Rucker lived at 612 North Spaulding from January of 1971 until the fire in September. She knew the defendant by his nickname, Baby. On July 9, 1971, while she was standing at an open front window in her living room, she saw the defendant and heard him say to the others who were standing with him: "If we couldn't live in the building it was no other going to live there [sic]." She left home and discovered there had been a fire when she returned that evening. The Tisley family did not live in the building between July 9, 1971, and August 6, 1971, but Mrs. Rucker saw the defendant in the area several times. In the early morning of August 6, 1971, Mrs. Rucker testified she was again standing near her front window when she saw a man whom she identified as the defendant go into the entrance at 614 North Spaulding. She could see his face. He was carrying a bottle about 10 inches long and 4 inches in diameter which was burning at the small end at the top. After 4 or 5 minutes had elapsed, the defendant came out, and Mrs. Rucker heard "a big explosion."
After that evening Mrs. Rucker saw the defendant about a week later. She was again standing at the front window of her second floor apartment when she saw the defendant standing outside with two other persons. She heard the defendant tell them: "If we can't stay in the building, nobody else is going to stay because we are going to burn it down."
On cross-examination Mrs. Rucker testified that at the times in question she was not employed and she happened to be near her windows. Around August 6 she was sleeping during the day and staying up most of the night. On that date she saw the defendant holding a burning bottle containing some type of liquid and walking into the gangway. Somebody ran out of the building in front of the defendant. It wasn't anyone she knew.
After the September 4, 1971, fire she talked to a Detective Keating, who questioned her about that fire. She told him she knew nothing. He subsequently questioned her about the August 6 fire, and she told him what she had seen.
There were no street lights on in front of her building, but the light was shining in from the school across the street. The light was sufficient to permit her to see that the defendant was wearing purple clothing of some kind.
Annie Rucker, 12 years old, testified that on September 4, 1971, at about 2 A.M. she saw the defendant standing outside her window and then running through the gangway. Shortly thereafter she went to bed and was later awakened by her sister who told her there was a fire. They jumped out the window to avoid the fire.
• 1 The defendant first contends that the indictment is defective because the evidence showed that the person specified in the indictment as the owner of the building actually had no ownership interest at the time of the fire. Judging from the cases cited by the defendant, we believe the defendant means to say that there is a fatal variance between the allegation of ownership in the indictment and the proof. In any event, we judge that the indictment on its face alleges ownership sufficiently to apprise the defendant of the nature of the charge against him and that it would provide a bar to any subsequent prosecution for arson of the same building. We further judge that there is no variance between the proof and the indictment. The evidence shows that Hopson was a contract purchaser of the building, and there is nothing to show that he had been relieved of his legal obligation under that agreement to purchase. The Criminal Code defines property of another under the arson statute to mean "a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." Ill. Rev. Stat. 1971, ch. 38, par. 20-1.
• 2 In a case where an arson indictment alleged that the building was the property of a certain individual and the proof showed the individual was a lessee, the conviction was upheld. (People v. Gaither, 103 Ill. App.2d 47, 243 N.E.2d 388.) And in People v. Ross, 41 Ill.2d 455, 244 N.E.2d 608, a conviction was affirmed where the indictment alleged that the property was the building of a savings and loan association and the proof showed the association was a mortgagee. The reasoning of those cases is applicable here; and we hold that a contract purchaser "has an interest which the [defendant] has no authority to defeat or impair."
Ida Mae West testified that she saw the defendant and his brother Leroy walking across the street from 612 and 614 Spaulding on July 9, 1971. She also testified that she saw both of them around 612 Spaulding quite often between July 9 and ...