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People v. Walker

OPINION FILED APRIL 7, 1977.

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

v.

GERALD WALKER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Gerald Walker, was indicted for the offense of burglary. (Ill. Rev. Stat. 1973, ch. 38, par. 19-1.) Following a bench trial, defendant was found guilty and was sentenced to the Department of Corrections for a term of one to seven years. On appeal, defendant contends that the indictment charging him with burglary was legally insufficient and that the State failed to prove him guilty beyond a reasonable doubt.

We affirm the trial court.

I

The indictment charged that on January 8, 1975, "he, without authority, knowingly entered into a building, to wit: store of Cavin Hudson with the intent to commit the crime of theft therein in violation of Chapter 38, Section 19-1, of the Illinois Revised Statutes 1973."

Defendant urges that the indictment was legally insufficient for the following reasons: (1) There was no allegation of ownership of the premises burglarized as required in a prosecution for burglary; (2) The proper name of the store and its address were not included; and (3) Calvin Hudson's first name was misspelled as "Cavin." Defendant asserts that since the indictment was incomplete and inaccurate, he was not fully apprised of the charge against him, he was misled in the preparation of his defense, and he was exposed to a possible subsequent prosecution for the same crime in violation of his rights against double jeopardy. U.S. Const. amend. V; Ill. Const. 1970, art. I, § 10.

• 1 In People v. Gregory (1974), 59 Ill.2d 111, 114, 319 N.E.2d 483, 485, our Supreme Court stated:

"While at one time it was necessary that an indictment for burglary identify the owner of the building concerned, if it was known, such an allegation of ownership is no longer required. [Citations.] We would point out that a majority did say in People ex rel. Ledford v. Brantley, 46 Ill.2d 419, that an indictment's failure to allege the ownership of the burglarized premises will render an indictment fatally defective. While the indictment in Ledford provided no identification whatever of the `dwelling' which was burglarized, that omission did not justify the statement that ownership must be alleged. The holding simply cannot be supported. It must be regarded as erroneous, and accordingly it is overruled."

Subsequent Illinois Appellate Court cases have followed the rule announced in Gregory. (People v. Baker (1975), 33 Ill. App.3d 898, 338 N.E.2d 565; People v. Reese (1975), 29 Ill. App.3d 568, 331 N.E.2d 316; People v. Pruden (1975), 25 Ill.3d 47, 322 N.E.2d 501.) Consequently, we find no merit in defendant's contention that the indictment is fatally defective in its failure to allege ownership of the burglarized premises.

Defendant next argues that the exclusion from the indictment of the proper name (Hudson's Record and Wig Shop) and the address of the store renders the indictment fatally defective since Calvin Hudson could own more than one store. People v. Pruden (1975), 25 Ill. App.3d 47, 322 N.E.2d 501, is dispositive of this issue. In Pruden, the court held that the identification of a burglarized building as "occupied by Williams Implement" sufficiently identified the premises, despite defendant's contention that "Williams Implement" could own both a residence and a commercial building. The court found that any doubt harbored by defendant could have been resolved by a simple oral inquiry. Further, the court held that the absence of a street address did not necessarily render the indictment defective, provided that defendant was otherwise sufficiently informed of the charges against him.

Defendant contends that the misspelling of Calvin Hudson's name as "Cavin" constitutes a fatal defect in the indictment. However, in People v. Gargano (1973), 10 Ill. App.3d 957, 295 N.E.2d 342, the court held that proof of the Christian name was unnecessary where the evidence adduced leaves no doubt as to the identity of the person involved.

The general rule applicable to any indictment governs an indictment for burglary. As noted by the court in People v. Baker (1975), 33 Ill. App.3d 898, 899, 338 N.E.2d 565, 566:

"An indictment's allegations must be set out with such specificity or particularity that the accused is informed of the offense with which he is charged and enabled to prepare his defense, and further that he is protected against being later prosecuted for the same crime. People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483. See also, People v. Pujoue, 1975, 61 Ill.2d 335, 355 N.E.2d 437."

• 2 It is evident that the due process requirements set forth in Baker were satisfied in the instant indictment. Defendant was fully apprised of the charges against him. The indictment was sufficiently particular in its allegations of the surname of the proprietor, the fact that defendant had no authority to enter the burglarized building, the possession by defendant of the requisite intent to ...


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