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People v. Blakeney

OPINION FILED APRIL 4, 1978.

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

v.

ROY C. BLAKENEY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 2, 1978.

In a bench trial, defendants were convicted of attempt (burglary) (Ill. Rev. Stat. 1975, ch. 38, par. 8-4) and possession of burglary tools (Ill. Rev. Stat. 1975, ch. 38, par. 19-2). Each received a single sentence of one to three years in the Illinois State Penitentiary. They appeal from their convictions, raising issues of whether there was a fatal variance between the offense alleged in the information and the proof at trial, and whether their convictions for both attempt and possession of burglary tools were proper. The State has not filed a cross-appeal under Supreme Court Rule 604(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)), but requests that the case be remanded for imposition of a separate sentence for each offense.

Defendants' convictions arose from an aborted burglary of the Lampert Jewelry store in a shopping center at 8800 W. Dempster Street in Niles, Illinois. One door to the east of the jewelry store is a barber shop called the House of Capelli. Just east of the barber shop is a beauty shop, the Hair Styling and Wig Salon. The rear portion of the beauty shop extends behind the barber shop. Thus, Lampert's share a common wall with the barber shop and the beauty shop.

On Sunday evening, October 19, 1975, defendants, who had been under police surveillance for nearly a week, were followed by Chicago police investigators to the area of the Lampert store. For the next several hours, the police observed the defendants' movements in and about the shopping center, including their entry into the front door of the barber shop and into the rear door of the beauty shop.

At 9:42 p.m., the burglar alarm system in the Lampert store was activated. The defendants fled the scene in a car, followed by the police. They were arrested a short distance away. On the front seat of defendants' car was found a black, leather-like case containing a number of walkie-talkies, a police radio scanner, a flashlight, a black box with gauges and wires protruding from it, an ohmmeter, and other electronic equipment. In the trunk of the car were found: a radio crystal case; a plastic hard hat; a pair of welder's goggles; a Uniweld igniter; a ten-inch adjustable wrench; four "burning bars," approximately 60 inches long; a metal cylinder stamped "acetylene"; a green metal cylinder possibly containing oxygen; acetylene-oxygen gauges and hoses with a control nozzle; an oxygen tank, complete with gauges, regulator, hoses, and valves; a number of chisels; two "channel" locks; screwdrivers; a crowbar; punches; an automotive ignition lock puller; an offset screwdriver; three bags, one containing torch equipment; a pair of "Bell System crimpers"; and a claw hammer.

Defendants were charged in a four-count information with burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) of the Lampert Jewelry store, possession of burglary tools (Ill. Rev. Stat. 1975, ch. 38, par. 19-2), and two counts of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(a)(1)).

Expert testimony at the trial established that a burning bar is a device which, when attached to acetylene and oxygen tanks and ignited, is capable of heating up to ten thousand degrees, sufficient to burn a hole through one-half inch thick plate steel in eight seconds. The expert testified that the burning bars found in the trunk of the defendants' car were capable of penetrating the vault on the premises at Lampert's.

Another expert witness testified that the black electronic box found on the front seat of the car was suitable only for use in preventing the activation of an electronic burglar alarm system. The wiring in the box contained one loose connection, which possibly accounted for the activation of the burglar alarm at 9:42 p.m., just prior to defendants' arrest.

Defendants presented no evidence at their trial. The court found them not guilty of the two counts of theft, but guilty of possession of burglary tools. Apparently the trial court was persuaded by defense counsels' arguments that the State had failed to present evidence of an entry into Lampert's, and thus found defendants guilty of the lesser-included offense of attempt (Ill. Rev. Stat. 1975, ch. 38, par. 8-4). Additional facts will be discussed in this opinion as they are relevant to the various issues raised in this appeal.

I.

• 1 Defendants contend their convictions should be reversed because the State proved at trial only that Lampert Jewelers, Inc., was the lessee of the premises, and not, as charged in the information, the owners of the premises. This contention would have significance only if the allegation and proof of ownership of the premises were essential to a prosecution for burglary. It is clear, however, that the State need neither allege nor prove ownership of the premises in a prosecution for burglary (People v. Gregory (1974), 59 Ill.2d 111, 114, 319 N.E.2d 483), so long as the proof otherwise establishes that the entry was unauthorized, and the pleadings and proof are sufficiently specific to enable defendant to present a defense and to protect him from a second prosecution for the same offense. People v. Flowers (2d Dist. 1977), 52 Ill. App.3d 301, 304, 367 N.E.2d 453.

Count I of the information, as amended, alleged that on October 19, 1975, in Cook County, the defendants committed the offense of burglary in that they, without authority, knowingly entered into a building "owned" by Lampert Jewelers, Inc., with the intent to commit the crime of theft therein.

At trial, the State presented the testimony of Dennis Lampert, the vice-president of Lampert Jewelers, Inc. Lampert testified that he was present in the store when it closed at 6 p.m. on Saturday, October 18, 1975. The doors to the store, its vault and safe, and an iron gate across the front of the store were all closed and secured at that time. The store was also equipped with a Wells Fargo electronic burglar alarm system. The store was closed on Sunday, October 19, 1975, and he gave no one permission to enter the store that day. Lampert testified that Lampert Jewelers, Inc., an Illinois corporation licensed to do business in the State of Illinois, was the lessee of the premises. When he entered the store after the police called him, there was a large ...


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