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People v. Davis





APPEAL from the Circuit Court of Champaign County; the Hon. JOSEPH C. MUNCH, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."

— Mr. Justice Holmes in Roschen v. Ward (1929), 279 U.S. 337, 339, 73 L.Ed. 722, 728, 49 S.Ct. 336.

The central issue to this appeal: what constitutes burglary in Illinois?

But first, some facts.

An information against Mr. Davis was filed charging him with the burglary of Consolidated Construction Co. in Champaign in that he knowingly and without authority "enter[ed] into part of" the building where its offices were located with the intent to commit a theft. At trial, Willie Gordon, Jr., owner and operator of Consolidated, stated that during the afternoon of May 4, 1976, he typed an estimate for a customer and left his offices at 3:20 p.m. to deliver it. The building had only one public entrance and he locked it when he left. He returned to his office at 4:05 p.m. and found the door open and his typewriter missing. Gordon left the building and, in a store two doors down, found John Lee Johnson. Johnson, who used part of the building for the Community Action Depot, was asked by Gordon if he took the typewriter. Johnson told Gordon he had unlocked the outside door about 3:55 p.m. and had left the building about 10 minutes before Gordon's return. Gordon returned to the office, called the police and then went out to where five or six people were standing behind a nearby store. Gordon asked if any of them had seen anyone go into the office and get the typewriter or if any of them had taken it. Defendant was the only one of the group who replied, stating he "didn't know anything about the typewriter," and that he had not seen anyone go into the office and take the typewriter. Neither defendant nor the general public had authority to be in Consolidated's office or to take the typewriter.

Owen Fabert owns Trader's World Pawn Shop. About 4 p.m. on May 4, 1976, Fabert purchased a typewriter from defendant for $25. Defendant Davis' signature appeared on the bill of sale. Defendant was alone, didn't bargain over a price (Davis suggested $25) and the transaction took a very short time. Trader's World is two blocks from Consolidated's office. The typewriter was Consolidated's.

Defendant testified that he had been convicted of burglary in 1968 and 1972. He had been drinking alcohol all day on May 4 and about 4 p.m. he was near the train station when a man his height wearing sunglasses asked him to take a typewriter to a pawn shop. Of the $25 the man wanted for the typewriter, he would give defendant $7. Defendant made the transaction, received the $7 and purchased some whiskey. Defendant didn't know who the man was. Defendant stated he was never in Consolidated's office. Certified copies of defendant's prior convictions were admitted.

The floorplan of the building is as follows:

The connecting doorway to the area occupied by Consolidated Construction is somewhere between 5 and 15 feet wide. There is no door. Johnson and Terry Townsend, both of whom work in the front part of the building, have free access to Gordon's office. Gordon has seen members of the public come into the front part of the building. He never saw defendant with the typewriter. The front door showed no signs of forced entry.

Davis was found guilty by the jury and was sentenced to 6 2/3 to 20 years' imprisonment. He first argues that the evidence adduced was insufficient to prove his entry into the building, his lack of authority, or his intent to commit theft. He also contends that his explanation of the day's events denying guilt, even if incredible, can't be used as an admission of guilt.

However, both parties argue positions based on what they think burglary means, as distinguished from what the statute states and comprehends.

• 1 At common law, burglary was a crime against habitation. (People v. Powell (1972), 9 Ill. App.3d 54, 291 N.E.2d 669.) As described by the Committee Comments to our Criminal Code, the elements of burglary were "the breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony therein." (Ill. Ann. Stat., ch. 38, par. 19-1, Committee Comments, at 307 (Smith-Hurd (1970).) The rather strict interpretation by those courts> of the individual elements resulted not only from normal rules of penal construction, but also from the terminal sentence waiting for those convicted (see, e.g., State v. Wilson (1793), 1 N.J.L. (Coxe) 439). Illinois' legislature has shaped what is now called "burglary" into a form unrecognizable to our common law ancestors. Gone is the element of "breaking," from which word such fine distinctions sprang. Gone too are the elements of "nighttime" and "dwelling house"; burglary is now a 24-hour crime which may be practiced upon a number of designated man-made cubicles. Section 19-1(a) of the Criminal Code of 1961 now states:

"A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code." (Ill. Rev. Stat. 1975, ch. 38, par. 19-1(a).)

The essence of the crime is entry into the designated areas with the requisite intent (see People v. Urbana (1959), 18 Ill.2d 81, 163 N.E.2d 511; People v. Rossi (1969), 112 Ill. App.2d 208, 250 N.E.2d 528). Naturally, the State has the burden of proving the necessary intent at the time entry was made. (Rossi.) Where a window has been broken or a door jimmied, intent is easily shown. However, since no breaking is now required, proof of an unforced entry by a ...

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