Appeal from the Circuit Court of Peoria County; the Hon.
Donald C. Courson, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
On November 2, 1983, Donald Bryant was convicted of attempt (burglary) following a jury trial in the circuit court of Peoria County. The defendant appeals his conviction, raising several instances of error at trial.
The evidence at trial established that on August 3, 1983, David McGraw was sitting on his father's front porch at 3 a.m. when he heard the sound of glass breaking. The sound appeared to be coming from Strube's Gas Station. When McGraw and his brother walked to the station, they saw two individuals one block away. The brother called the police.
Peoria police officer Gerald Ulrich was the first to arrive at the gas station. When he arrived, he also noticed two individuals a block away. Ulrich then walked to the back of the gas station, where he saw the defendant break into a run. When the defendant jumped the fence into a neighboring yard, Ulrich drew his revolver and called to the defendant by name. The defendant complied with Ulrich's order to return over the fence. The defendant was then arrested.
Ulrich found a torn blue shirt in the neighboring yard at the point in the fence where the defendant returned. The defendant was not wearing a shirt when arrested. Ulrich testified that the shirt had an odor similar to the defendant's. Ulrich later determined that a protective wire covering had been removed from one of the windows in the gas station. The glass had been broken out of the window. Rubber tires were stacked beneath the broken window.
Ulrich's testimony regarding the discovery and the odor of the shirt was corroborated by police officer Lawrence Weston. The State also introduced the testimony of police officer Walter Jatkowski. Jatkowski testified that the blue shirt had characteristics similar to those of a fabric impression found on pieces of glass from the broken window. Finally, John Marcouiller, a forensic scientist, testified that there was a good probability that a piece of glass recovered from the defendant's shoe came from the glass in the broken window.
The defendant presented no evidence. The defendant then tendered an instruction on criminal damage to property, which was refused by the trial court. At the jury's request, the blue shirt was allowed to go to the jury room. Following deliberation, the jury convicted the defendant of attempt (burglary).
• 1, 2 The first issue raised by defendant is whether the trial court erred in refusing to instruct the jury on the offense of criminal damage to property because under these circumstances criminal damage to property is a lesser offense of burglary. We agree that, in this case, the instruction should have been given.
The Illinois Supreme Court has enunciated three possible methods for determining whether a certain offense was a lesser included offense. (See People v. Mays (1982), 91 Ill.2d 251, 437 N.E.2d 633.) The first and most obvious method is by comparing the statutory definitions of the offenses. If the more serious offense contains all of the elements of the lesser offense, then the lesser offense is a lesser included offense and the jury must be instructed accordingly. (See Beck v. Alabama (1980), 447 U.S. 625, 65 L.Ed.2d 392, 100 S.Ct. 2382.) The second method, if the statutory definition of the more serious offense lacks an element of the lesser offense is to look to the charging instrument. If the charging instrument includes in its description of the offense charged the missing element which proof of the lesser offense requires, then the jury must be instructed on the lesser offense. (See People v. Cramer (1981), 85 Ill.2d 92, 421 N.E.2d 189.) A third method was discussed in Mays which has now been rejected by the supreme court. In People v. Dace (1984), 104 Ill.2d 96, 470 N.E.2d 993, the supreme court found application of this test to be counterproductive.
In comparing the two statutory definitions, burglary requires an entry without authority with intent to commit theft, and criminal damage to property requires proof that defendant "(a) Knowingly damages any property of another without his consent." (Ill. Rev. Stat. 1983, ch. 38, par. 21-1.) No damage to property is required as an element of the more serious offense, burglary, and therefore, the more serious offense as defined by statute lacks an element of the lesser offense, i.e., property damage.
• 3 On the other hand, the test set forth in Cramer is clearly met in this case. Here the charging instrument states that defendant "pulled away a screen and broke a window * * * with the intent to enter said building without authority, and to commit therein a theft." Clearly the indictment alleges property damage, the missing element of the more serious offense, attempt (burglary). Therefore, we hold that, applying the Cramer test, an instruction on criminal damage to property should have been given.
Furthermore, in its most recent mandate, People v. Dace (1984), 104 Ill.2d 96, 470 N.E.2d 993, the Illinois Supreme Court held that the instruction should have been given even though it rejected the inherent relationship test. In Dace the supreme court stated:
"[U]nder these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant's tendered instructions was error." (104 Ill.2d 96, 103.)
Like the circumstances in Dace, the circumstances in the present case require that the jury be instructed on the "lesser" offense. Here, the information charged all of the elements of criminal damage to property, not merely intent, as the charging instrument did in Dace. In Dace the information charged residential burglary with intent to commit theft (104 Ill.2d 96, 98), and contained no ...