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People v. Johnson

OPINION FILED MARCH 9, 1976.

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

v.

ARNOLD E. JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, JR., Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Arnold Johnson, was indicted for burglary and found guilty of attempt burglary. He was sentenced to imprisonment for a period of one to five years.

Defendant submits the following contentions in seeking a reversal, or in the alternative a reversal and remandment for a new trial: (1) the allegation contained in the indictment that defendant "* * * entered into a building, to wit: office of the Social Security Administration of the United States Government * * *" is unconstitutionally vague and uncertain, thus rendering the indictment void; and (2) the trial court erred in not conducting a hearing to determine defendant's mental fitness to stand trial.

Although the sufficiency of the evidence supporting the conviction is not questioned, a brief summation of the facts will lead to a better understanding of defendant's contentions. On December 31, 1973, pursuant to a "burglary in process" radio message, two Chicago police officers proceeded in separate vehicles to the social security office located at 2306 W. Lawrence Avenue, Chicago. The first officer to arrive at the scene knew that the office was closed for the holidays. Upon inspecting the premises, he observed a broken window and a person inside the office going through the file cabinets. The officer entered the building, placed the person under arrest, and advised him of his constitutional rights. The arrestee was subsequently identified as defendant. Defendant related to the officer that he had borrowed a tire iron in order to break the window, and that he had entered the building for the purpose of looking for a card and his car keys.

A representative of the Social Security Administration testified that he had observed defendant in the office during business hours on several occasions to receive his disability insurance checks. It was necessary for defendant to receive his checks in this manner since he did not have a mailing address. The witness further stated that defendant was neither employed in, nor authorized to enter, the office on the date this incident occurred.

Defendant testified that he had previously been a patient in a mental institution. It was his belief that the checks he received at this office were payments for a mental disability. According to his testimony, defendant broke the window and entered the building in order to escape the cold weather and in anticipation of discerning the whereabouts of his car which he had parked in an adjoining lot the previous day. He did not have any money, and his car provided him with his only means of shelter. He had no intention of removing any property or money from the office or of looking through the file cabinets. He denied telling the police officer that he was looking for his car keys and a card and suggested that he had been misunderstood by the officer. Defendant had been drinking on the date of the occurrence.

• 1 Defendant's first contention is that the indictment was void because the street address of the office he was charged with burglarizing was not indicated. *fn1 Defendant concedes that an address is not ordinarily required in an indictment (People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97), but since at least ten social security offices are located in Chicago, defendant argues that the omission of an address in this indictment created confusion as to which of the numerous offices he was charged with burglarizing. Implicit in this argument is the contention that defendant, due to a lack of specificity in the indictment, was deprived of his constitutional right to know the nature of the charges brought against him so that he could fully prepare his defense and plead any judgment in bar of a subsequent prosecution for the same offense.

This same contention was considered and rejected on similar facts in People v. McKinney, 126 Ill. App.2d 339, 261 N.E.2d 797. In McKinney, the court held that the failure to allege in a burglary indictment the street address of the burglarized retail store which had more than one Chicago outlet was not a jurisdictional defect. As a result, such a defect could not be raised for the first time in a court of review, and the failure of the accused to file and argue in the trial court a motion to dismiss the indictment resulted in the waiver of this contention for purposes of appeal. 126 Ill. App.2d 339, 345, 261 N.E.2d 797, 800.

Likewise, in the instant case, the record reveals that defendant neglected to either make a motion to dismiss the indictment or to file a post-trial motion on the grounds raised here. Consequently, defendant is barred from presenting this issue on appeal.

• 2 Furthermore, there is nothing in the record to suggest that defendant was prejudiced by this allegedly defective indictment. The defense defendant asserted at trial (namely, that he had no intent to commit the crime of theft in the building) indicates that he was fully aware of the nature of the charges brought against him. Moreover, defendant is in no danger of double jeopardy since the street address of the office he was charged with burglarizing is contained in the record which may be introduced as evidence in any subsequent prosecution for the same offense. People v. McKinney; People v. Bremer, 57 Ill. App.2d 436, 206 N.E.2d 795.

Defendant next contends that the record reflects a bona fide doubt of his mental competence to stand trial, and that it was reversible error for the trial court to deny his motion for a reexamination to determine his fitness to stand trial.

On April 1, 1974, upon defense counsel's motion, the trial court ordered a psychiatric examination of defendant. The report filed pursuant to this order declared defendant fit to stand trial. Thereafter on June 10, a request for a second examination was denied.

Defendant argues that the trial court erred by not conducting a competency hearing either before trial or after the evidence had been elicited in light of his prior mental difficulties, his demeanor in the presence of the court, and the court's observation immediately after sentencing that "He doesn't react as the usual defendant * * *." In maintaining that a bona fide doubt of his competency should have been evident to the trial court, defendant relies upon two brief colloquies prior to trial between his counsel, the court, and himself, and a more extended conference among the same parties during the sentencing hearing.

In Withers v. People, 23 Ill.2d 131, 177 N.E.2d 203, the Supreme Court set forth the test ...


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