APPEAL from the Circuit Court of Whiteside County; the Hon.
DAVID DeDONCKER, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Terry Tinkler was convicted of burglary and theft and received concurrent sentences of imprisonment of 4 years for burglary and 150 days for theft. On appeal he contends that the jury instructions on the crime of burglary were erroneous.
At the trial Greg Manon, who was 13 years old, testified that on May 23, 1979, he resided with his parents, his brother Lee, his sister Melody Bender, and defendant. On that date Greg Manon rode his bicycle to the McDaniel house to see if his friend Gary McDaniel was going to ride his bicycle to school. McDaniel told Manon he would not be leaving for a while, and Manon returned home. Shortly thereafter, Manon rode back to the McDaniel house, but his friend was gone. Manon then returned home. He had by then missed the bus and probably could not have made it to school on time by bicycle. At home with Greg Manon at that time were Lee, Melody, and defendant.
Defendant and Greg Manon left to buy cigarettes for Lee and Melody in Coleta. On the way Manon told defendant he wanted to go to the McDaniel house one more time to see if Gary was home. They did so, and Manon knocked on the front door. When nobody answered, they walked into the unlocked garage, and Manon knocked on another door to the house. There was no answer. They then found a house key; defendant unlocked the door; and they entered the house. According to Manon, he went in because he thought if Gary McDaniel was home, he would be able to hear Manon better. Manon hollered to see if his friend was home, but no one answered. The two wandered about the house and finally left with two pool cues, a pipe, and a record cleaner. They locked the door to the McDaniel house, replaced the key, went home, and showed Melody the pool cues.
Defendant and Greg Manon again left to buy cigarettes. Defendant mentioned something about returning to the McDaniel house, and they did so. Defendant took the key, unlocked the door, and they entered. Manon found a grocery sack and gave it to defendant who put candy, cheese, and baloney in it. They left the house with the grocery sack and returned home, meeting Melody on the way. Manon testified he was not prosecuted but was required to report to a probation officer several times. On cross-examination Manon acknowledged that in a prior statement he gave to police, he did not say he entered the McDaniel house twice. He explained that the police did not ask how many times he entered. They just asked "what we was doing, and all that."
Melody Bender testified that on the morning in question, defendant and Greg Manon showed her the pool cues. The two left, and she followed them. She lost sight of them but eventually found them coming out of the McDaniel house with defendant carrying a paper bag. Defendant gave her the bag, and the three returned home. Melody admitted that she had a prior forgery conviction. She testified that she was defendant's girlfriend but that she was seeing a marriage counselor with her husband.
Harold Null, a neighbor of the McDaniels, testified that he saw Greg Manon, defendant, and another go into McDaniel's garage and emerge with a paper sack.
Ruth McDaniel, Gary's mother, testified concerning the items missing from her home, and the fact that she gave no one authority to enter her home on the date in question. Sheriff's Detective Lawrence Isaacson testified that some of the missing items were recovered in the Manons' residence. He also identified a written statement defendant gave to police in which he admitted that he had been at the McDaniel residence. According to defendant's statement, he entered the garage but did not go into the house. He said Manon entered the house and when he came out, he handed defendant pool cues. The two of them left, defendant carrying the pool cues, and Manon carrying a pipe, sunglasses, another pool cue, and a small sack of groceries.
The defense presented no evidence. Over defendant's objection, the jury was given the following instruction defining "burglary."
"A person commits the crime of burglary who, without authority, knowingly enters or remains within a building or any part thereof with the intent to commit theft." (Emphasis added.)
The issues instruction on burglary, to which the defense objected, also included the "remained within" alternative.
Defendant argues that it was error to include the "remains within" alternative in these instructions. Section 19-1(a) of the Criminal Code of 1961 provides:
"A person commits burglary when without authority he knowingly enters or without authority remains within a building * * * or any part thereof, with intent to commit therein a felony or theft. * * *." (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a).)
According to defendant, burglary can be committed in two ways: (1) by entering without authority and with intent to commit a felony or theft, or (2) by entering with authority and subsequently remaining, with the requisite intent, after the authority has terminated. A person who makes an unauthorized entry without intent to commit a felony or theft and subsequently develops such intent is not, according to defendant, guilty of burglary. Since the evidence is undisputed that neither defendant nor Manon had authority to enter the McDaniel house in the first place, ...