Appeal from the Circuit Court of Cook County; the Hon. Jose R.
Vazquez, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Respondent was charged by separate juvenile petitions with two counts of burglary. After a jury trial, respondent was acquitted of one charge and found delinquent on the second. He was adjudicated a ward of the court and committed to the Illinois Department of Corrections under the habitual juvenile offender act (Ill. Rev. Stat. 1981, ch. 37, par. 705-12).
On appeal, respondent contends that (1) the order of commitment is void because the State failed to prove notice to respondent's father; (2) the two offenses were improperly joined for trial; (3) there was no proof of entry into a building and therefore he was not proved guilty of burglary beyond a reasonable doubt; and (4) sentencing under the habitual juvenile offender act was improper where the State failed to prove prior adjudications of wardship.
Respondent was charged with the burglaries of the Fleming residence at 10948 S. Wallace and the Snow residence at 11043 S. Peoria. The trial court allowed both offenses to be joined for trial before a jury. The evidence produced is as follows.
Mrs. Sandra Fleming testified that she left for work at 8 a.m. on March 4, 1980. In the early afternoon, she received a call from her neighbor and returned home. When she entered her home, she found the kitchen cabinets open and a basement window forced off the hinges. Later that day, Mrs. Fleming went to the police station where Officer Murphy returned a radio which had been removed from Fleming's home.
Ethel Page, a neighbor of the Flemings, testified that at 11:45 on the morning in question, she saw respondent crawling from a basement window in the Fleming residence. When Mrs. Page tapped on her window, respondent and another youth fled. Neither boy was carrying any property.
Officer Catherine Murphy testified that she received a radio message at 12:30 on the day in question and proceeded to the Snow residence. She spoke to a woman and went to the rear of the building where she saw respondent running up a stairwell leading from the basement. The basement door was open. Respondent ran past Officer Murphy toward the alley. At the bottom of the stairwell, Murphy found a stereo speaker and a large green garbage bag containing several items. Murphy also observed that the side molding adjacent to the basement door lock had been removed.
Murphy radioed a description of the offender to responding units. Five minutes later, she saw respondent in the custody of Officers Ciraulo and Skerrett. Murphy and Ciraulo entered the basement and saw a boy running up the stairs. This boy and another were arrested in the home. Murphy further testified that property in the bag was returned to Mrs. Snow and Mrs. Fleming.
Officer Skerrett testified that at 12:30 p.m. on March 4, 1980, he responded to a burglary in progress call. Officers Ciraulo and Solana were also in the squad. Skerrett drove to an alley behind 11043 S. Peoria street. He and Ciraulo walked down the alley and Solana went to assist Officer Murphy. Skerrett saw the respondent cross the street and pursued him. He found respondent crouching in a gangway near a garage. Respondent was wearing a blue pea coat and a dark cap. Skerrett took respondent to the Snow residence where Officer Murphy identified respondent. Anthony Maxie and Christopher Marsh were also taken into custody. Skerrett brought respondent and Maxie to the Fleming residence where Mrs. Page identified them as the persons who had entered the Fleming home.
The parties stipulated that if Anthony Maxie were called by defendant to testify, he would state that he did not see respondent on the day in question until they were both in custody and that he had no knowledge of respondent's involvement in the burglaries. Respondent testified that he saw Christopher Marsh at the police station. Marsh was wearing a blue coat and green hat.
The jury returned a verdict of delinquent on the charge of burglary of the Snow residence. Respondent was found not delinquent on the charge of burglary of the Fleming residence. Respondent was sentenced under the habitual juvenile offender act (Ill. Rev. Stat. 1981, ch. 37, par. 705-12) and committed to the Department of Corrections until his 21st birthday.
First, respondent contends that the order of commitment is void because the State failed to notify respondent's father. The petition for adjudication of wardship stated that respondent's father's address was unknown. Respondent therefore maintains that the State was required to serve his father by publication and its failure to do so deprived the court of jurisdiction.
• 1 Initially, we note that respondent's mother was the custodial parent. She had actual notice of the proceedings, was present during the hearings on the charges, and testified on behalf of respondent. On the other hand, respondent's father apparently had little contact with his son. Under these facts, respondent's father should not be treated as an indispensable party and his absence does not deprive the minor of substantial protection or assistance. (In re J.W. (1981), 87 Ill.2d 56, 429 N.E.2d 501.) In fact, service by publication on respondent's father was unnecessary where the custodial parent was present and no judgment or ...