APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was found guilty of the crime of attempt burglary and sentenced to a term of 2 years to 2 years and 1 day. On appeal, he asserts that the State failed to prove beyond a reasonable doubt that he intended to commit a theft.
It appears from the testimony that a neighbor of Ruth Garvey heard his dog barking and momentarily thereafter heard glass breaking. He looked out toward the Garvey house and saw defendant striking her rear door with what appeared to be a duffel bag. He watched defendant for approximately 10 or 15 seconds from a distance of about 30 or 40 feet and could see him clearly from the illumination of a light bulb directly above Garvey's rear door. He called the police, and after they came he noticed that the glass was shattered in her outer storm door, and its aluminum frame was bent. In addition, the inner wood door was chipped and scratched, but its windows were not broken.
One of the police officers who came to the scene observed a shattered outer door and marks on the inner wood door which had not been opened. He found defendant sitting in the bushes, about 10 feet from the door, with a duffel bag in his hands. Defendant explained that it was his house and that he had broken the door because Ruth Garvey would not let him in. He was arrested and taken to the station where he repeated his statement to the police officer that he broke the door while trying to get in the house and that "he wanted to kill that bitch."
The police officer thought the last statement was made "out of heat of anger." At the station, the police officer saw his partner take toilet articles, shaving cream and talcum powder from defendant's duffel bag. He saw no evidence of prying, jimmying or striations on the inner door of the Garvey house, and he was unable to state whether defendant had been drinking. However, it was stipulated that a police report prepared by another officer showed defendant "had been drinking."
Ruth Garvey testified that at the rear of her house the outer door was aluminum with a glass panel, while the inner wood door had windows at the top and two key locks. At about 3 A.M. on the morning in question, she heard glass breaking and went to her kitchen, where she opened the shutters and looked outside. She saw defendant standing a few feet from her back door. She could not remember the police telephone number, so she called her neighbor, who told her the police were on their way. After the police arrived, she noticed the glass in the outer door was shattered and that the glass windows and the door "were all broken" in her garage. She first met defendant in December of 1969, and she stated that he lived at her house from October, 1970, until January, 1971, but that he had no personal belongings inside her house. She did not see defendant enter either her house or her garage.
The indictment charges defendant with the offense of attempt:
"[I]n that he, with the intent to commit the offense of burglary, without authority knowingly attempted to enter into a building, to wit: dwelling house of Ruth Garvey, with the intent to commit therein a theft, * * *."
A person commits the crime of attempt when with the intent to commit a specific offense he does any act which constitutes a substantial step toward the commission of that offense. Ill. Rev. Stat. 1971, ch. 38, par. 8-4.
Defendant contends that the state failed to establish that his attempt to enter the Garvey house was with the intent to commit theft. The burden is on the state to submit proof beyond a reasonable doubt to support that allegation. People v. Perry, 133 Ill. App.2d 230, 272 N.E.2d 766.
The state maintains that in light of the facts and circumstances and the natural and probable inferences that arise therefrom, defendant's intent to commit a theft has been clearly established. It refers us to People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864, where the court stated at page 443:
"Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose."
The State argues that the record supports an inference of an intent on defendant's part here to commit theft because of defendant's attempted unauthorized entry into Ruth Garvey's home, where there were articles of value. Any indication that defendant was interested in resuming his prior relationship with Ruth Garvey, the State says, is negated (a) by the fact that he had not ...