APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
The defendant, Jerry B. Palmer, was tried by jury in the circuit court of McLean County on two counts of burglary. He was convicted of one count and acquitted on the other and then sentenced to 5 years' imprisonment. On appeal he asserts (1) the evidence was insufficient to show his entry into the allegedly burgled premises, and (2) the court erred in ruling on instructions.
An information filed March 13, 1979, charged the defendant with two counts of burglary (Ill. Rev. Stat 1977, ch. 38, par. 19-1), each alleged to have occurred on February 4, 1979. The conviction arose from count I. It charged that the defendant entered without authority part of a building occupied by Theresa Coppenbarger, her son, and Steve Steilow, with the intent to commit therein "a theft or felony." Count II charged that the defendant entered without authority a building owned by the Corn Belt Bank, as trustee of McLean County Land Trust No. 1179, with the intent to commit therein "a theft or felony."
Most of the evidence in support of the conviction came from the testimony of Theresa Coppenbarger, who related the following occurrence. On February 4, 1979, she was living in the apartment in question. About 9:30 that evening, she heard a knock on the door; when she looked out the peephole, she saw a man she did not recognize. Because Steilow was not there, she decided not to answer the door. The man left and walked down the hallway, returning in several minutes and again knocking on the door; when no one answered, he left. About two or three minutes after that, Coppenbarger again heard a knock at the door. She looked out and saw the same man as before. This time the man stood at the side of the door as if he thought he would not be seen. The man then went out a back door at the end of the hallway, where a removable panel in the ceiling provided access to the attic of the building.
Directly after the man left, Coppenbarger heard loud noises in the hallway outside the living room as if somebody were beating or kicking the wall. When she next heard someone in the attic above her, she called the police. Fearing that the man wanted to rob her, as someone had done earlier by coming down from the attic through a trapdoor in the bedroom closet, she got a gun for protection. Then, while standing in the hallway of her apartment, she saw a fist pounding a hole through the kitchen ceiling. The defendant first stuck his face through a hole 10 to 12 inches in diameter and then the rest of his head and his arms past the elbows. Coppenbarger screamed that she would shoot the defendant if he kept beating on the ceiling. She shot the gun, intending only to scare him. As a result, the defendant fell halfway through the hole and then jumped onto a table in the kitchen.
After the man fell through the ceiling, Coppenbarger kept repeating to him that she would shoot him. The man told her not to do it and said, "I'm just looking for my friend's house." She went over to the front door, opened it, and shouted for the defendant to leave. On cross-examination, Coppenbarger said that the defendant did not attempt to take anything and did not threaten her.
The defendant stipulated that he was the person shot by Coppenbarger on February 4, 1979. The evidence was undisputed that no one had any permission to be in the attic of the apartment building or to enter a resident's apartment without the resident's permission.
A Bloomington police officer testified that when he arrested the defendant in Peoria on February 5, 1979, he found a screwdriver, a knife, and a green garbage bag in defendant's coat. The officer further stated that the next day the defendant told him that he went to the apartment building attic to get insulation and had already hidden two bags of insulation in Miller Park. The officer testified to searching the park for bags of insulation and finding none.
For the defense, Joyce Palmer, the defendant's wife, testified that the defendant frequently brought home plastic bags from his job as a custodian. She said he did so because when he started work at 6:45 a.m., the closet in which the bags were kept was locked and he did not have the key.
Section 19-1 of the Criminal Code provides: "(a) A person commits burglary when without authority he knowingly enters * * * a building * * * with intent to commit therein a felony or theft." (Ill. Rev. Stat. 1977, ch. 38, par. 19-1.) The offense is complete upon entering with the requisite intent. The actual commission of the intended offense is irrelevant. Breaking, in the common law sense, is not an element of burglary. (People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245.) The defendant argues that his pounding a hole in the kitchen ceiling and putting his arm and head through was only a breaking. He maintains that he did not enter the apartment until he fell through the ceiling as a result of Coppenbarger's shot and that this entry was unintended. The State contends that the intrusion of parts of defendant's body through the ceiling prior to the shot constituted a sufficient entry to be the basis of an act of burglary. There is no dispute that the circumstantial evidence presented was sufficient for the jury to have found that the defendant intended to commit a burglary.
The defendant's authorities are distinguishable from the situation here. In People v. Urbana (1959), 18 Ill.2d 81, 163 N.E.2d 511, a defendant charged with and convicted of attempted burglary argued that he was guilty of burglary only and that the attempt was not an included offense. The defendant had broken through a metal grating and was caught while trying to pick the lock on the rear door of a store. The court said that presence in the small area between the grate and the door was not entry of the building because the door defined the close of the store. In the instant case, however, portions of the defendant's body penetrated the hole in the ceiling and intruded into the kitchen. The ceiling, analogous to a door, defined the close of the apartment here.
People v. Davis (1972), 3 Ill. App.3d 738, 279 N.E.2d 179, is more similar factually but still distinguishable. In Davis, the police watched the defendant and three other persons use tools to pound a small hole in the wall of a store; the hole was large enough to permit one to see inside. The pounding caused bits of plaster to fall inside the store. The police saw the four men leave, taking nothing. No indication was given that any part of the bodies of any of the four had penetrated the hole. Discussing whether the defendant had entered the store, the court said: "It is not the size of the hole that is determinative but rather, in our opinion, it is whether a hand or instrument was actually inserted into the hole for the purpose of committing the felony." (3 Ill. App.3d 738, 739, 279 N.E.2d 179, 180.) The appellate court found no entry to have occurred and reduced the defendant's burglary conviction to one for attempted burglary.
On the other hand, in People v. Songer (1963), 28 Ill.2d 433, 192 N.E.2d 861, the supreme court affirmed a conviction for burglary where the evidence showed that one for whom the defendant was accountable had broken a skylight on a store roof and removed a wooden grate below. The court stated:
"The grating was for the purpose of supporting the alarm system wires and was made out of thin pieces of wood, which when broken and removed made the way clear to climb down into the building itself and left no further physical obstruction. In fact an entry into the building at least to the extent of three feet would have been necessary in order to reach in and remove the wooden grating. In People v. Urbana, 18 Ill.2d 81, relied upon by defendant, entry into the building itself was ...