Appeal from the Circuit Court of McHenry County; the Hon.
Henry Cowlin, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant, Jaysen Martin, was found guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a)) and was subsequently sentenced to an extended term of eight years' imprisonment. On appeal, defendant contends that the State failed to prove that his entry of the house in question was without authority and that there was a fatal variance between the date of the offense in the bill of particulars and the date testified to at trial.
On May 8, 1981, the defendant was charged in an information with three counts of burglary and three related counts of theft. Count II charged defendant with burglary in that "on or about March 31, 1981, * * * [he], without authority knowingly entered a building of George Layoff * * * with the intent to commit therein a theft * * *." In answer to defendant's motion for a bill of particulars the State set forth that this burglary occurred between 8 a.m. and 2 p.m. on March 31, 1981. The other two burglaries and related thefts were alleged to have occurred on March 30, 1981, at the Gerda Steinmetz residence and on April 1, 1981, at the Layoff residence. At the close of the State's case, the trial court directed verdicts of acquittal for defendant on two of the three theft counts. The jury found the defendant not guilty of the March 30 and April 1 burglaries and the April 1 theft, but found the defendant guilty of the March 31 burglary.
The trial testimony will be discussed only as is necessary to understand the issues raised in this appeal. The State presented testimony that defendant, during the first two weeks of April 1981, sold several items of jewelry to Eugene Nowell, the owner of the Old World Coin Shop. This jewelry was identified as jewelry which was missing from the residences on the dates in question.
George Layoff, Sr., testified that around March 31 or April 1, he was not sure of the date, he and his wife returned home from work and found several items of jewelry missing. He stated that he lives in the house with his wife, his daughter and his son, George Jr. He said that he rents the house; that he has complete control of the premises; and that his name is on the lease. He testified that he did not give anyone permission to take the jewelry from his house or to enter the house to take the jewelry.
George Layoff, Jr., testified, on direct examination, that on March 30 the defendant told him that he would sell him marijuana for any gold that George could obtain. In a later conversation that same day or the next day with the defendant, George Jr. agreed to leave the back door of his parents' house unlocked. The defendant told him that he would take a couple of rings and that he would then give George Jr. one-half pound of marijuana in exchange. The day George Jr. left the door unlocked for the defendant, he left the house about 8:30 in the morning, he went to his grandmother's home, and he returned after 2:30 in the afternoon. He went to his parents' room and discovered that two rings of his parents' were missing. He said that the defendant did not give him the marijuana he promised. Although he observed his class ring there at that time, he later discovered the ring was missing. He testified that he never gave defendant permission to enter the house again to take his class ring. Pry marks were found on the back door. This testimony regarding the class ring formed the basis of a separate burglary count alleged to have occurred on April 1, and for which the defendant was found not guilty.
On cross-examination George Jr. testified that he was 17 years old; that he lived with his sister and parents in his parents' home; and that he was suspended from school for three days beginning on Monday of the week in question. He testified he had had one discussion with the defendant on March 30 and another on March 31 in which he agreed to leave the back door of the house unlocked for the defendant. He said he went to his grandmother's home on April 1.
On redirect examination, however, after prompting from the State regarding the dates, he testified that his first two conversations with the defendant both occurred on Monday, March 30; that he left the door unlocked on March 31; and that he returned that afternoon from his grandmother's home and found his parents' rings missing.
The defendant denied ever entering the Layoff home and presented an alibi defense by his own testimony and that of five of his friends. The alibi testimony, in essence, was that defendant was with friends from March 30 until 5:30 p.m. on April 1.
Defendant first contends that his conviction should be reversed because the State failed to prove an essential element of the crime of burglary. Section 19-1 of the Criminal Code of 1961 provides that:
"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. 1981, ch. 38, par. 19-1(a).)
This statute requires the State to prove that an entry was both without authority and with the intent to commit a felony or theft. People v. Weaver (1968), 41 Ill.2d 434, 439, 243 N.E.2d 245.
Defendant maintains that George Layoff, Jr.'s testimony clearly shows that he gave the defendant permission to enter the house and left the door open for him, and that this proved that his entry was not "without authority."
In People v. Castile (1975), 34 Ill. App.3d 220, 339 N.E.2d 366, the appellate court rejected a similar argument that an assistant store manager could authorize an entry for an unlawful purpose. The court reasoned that the assistant manager had no more authority to consent to an entry of his employer's building for the purposes of a theft ...