APPEAL from the Circuit Court of McHenry County; the Hon.
CHARLES S. PARKER, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Defendants were charged with three counts of burglary and three counts of theft in a six-count information. Both defendants filed motions to dismiss the burglary counts in the trial court and these motions were granted. The State appeals pursuant to Supreme Court Rule 604(a) (1) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)).
Section 4-102 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 4-102) provides, as pertinent to this appeal:
"It is a violation of this Chapter for:
(a) A person, without authority to do so, to damage a vehicle or to damage or remove any part or component of a vehicle; * * *."
Section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 19-1(a)) provides, as pertinent to this appeal:
"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." (Emphasis added.)
Both defendants were charged in the information with three counts of burglary "in that they did without authority knowingly enter a motor vehicle * * * with intent to commit a theft" by entering a motor vehicle and taking, on three separate occasions, a citizen's band radio. In the trial court defendants individually presented motions to strike alleging that counts I, III, and V of the information (the burglary counts) should be stricken on the basis that the offenses with which defendants were charged fell under the provisions of section 4-102(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 4-102(a)) as set forth above and thus were, in accordance with the language of section 19-1(a) of the Criminal Code of 1961 "not included" within the reach of that statute. It was argued, as to each count of burglary, that the citizen's band radio taken must be construed to be a "part or component" of the vehicles in question, within section 4-102(a) of the Illinois Vehicle Code, although some of them were not factory-installed, because to do otherwise would result in a violation of due process and equal protection in that the taking of one type of citizen's band radio (factory-installed) would not be an offense under section 19-1(a) of the Criminal Code of 1961, while the taking of another type of citizen's band radio (after-acquired) would be such an offense.
After hearing arguments of the parties the trial court, in a written order, concluded:
"1. That Counts I, III and V charging Burglary against these defendants, purport to be brought under Section 19-2(a), Chapter 38, Illinois Revised Statutes, and charge the theft of certain citizen band radios from three motor vehicles.
2. That Section 19-1(a), Chapter 38, Illinois Revised Statutes, provides that, `This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code.'
3. That the aforesaid legislation and certain other provisions of Section 4-102 of the Illinois Motor Vehicle Code supplementing the above mentioned quoted portion, in substance, make it a misdemeanor to damage or take a component part of a motor vehicle.
4. That any citizen band radio attached to an automobile whether originally at time of purchase of car, or subsequently installed, necessarily has to be treated as a `component part,' and the offense of taking one, a theft and/or criminal trespass to a motor vehicle.
5. That it would be a violation of due process and equal protection under the laws of Illinois and the United States to charge one with the crime of burglary for taking a citizen band radio out of a car merely because that radio did not come with the car at the time of original purchase and to make it a misdemeanor to remove a citizen ...