People v. Bailey

ILLINOIS, Plaintiff-Appellee, v. OF THE STATEOF THE PEOPLE II, Defendant-Appellant. BAILEY EDWARDM.

Fifth District No. 5-87-0355 8, 1989. Opinion September filed CHAPMAN, J., dissenting. Zalisko, Appellate A. M. Kirwan Michelle both De- I

Daniel State Office, Vernon, appellant. fender’s Mt. Garnati, R. (Kenneth Boyle, Marion I Attorney,

Charles State’s of Norris, Irish, Appellate Attorneys E. Ellen Eder all of State’s I Stephen and Office, counsel), the People. of for Prosecutor’s the of the opinion

JUSTICE LEWIS delivered court: defendant, II, jury M. a of Bailey Edward was convicted van, vehicle, a two counts of specifically, of a motor and burglary of to serve extended-term sentences theft. He was sentenced six on each of the years years on the conviction and convic- burglary theft, the to The defend- concurrently. tions for sentences be served he ant three issues for review: whether was appeals, raising (1) now the reasonable van proved beyond doubt guilty the State to show that he entered it without authority; because failed an (2) the court abused its discretion in ex- imposing whether trial the tended-term sentence on conviction because sen- imposed to the sentences on the “other grossly disparate tence was event; in the in (3) the and whether trial court erred participants” the conviction an extended-term sentence on both imposing for theft. and the two convictions 11, 1986, testified Gary September trial that around Allsopp

At Herrin, Illinois, his in including were taken from home guns four .22 caliber rifle and a Steven friend Gourley, .357 caliber revolver. Allsopp, testified that “towards the end September” Victor Roman had him All- Knowing shown a .357 caliber revolver. stolen, gun of that been the sopp’s description Gourley had discussed matter with Allsopp gun and checked the serial number Allsopp’s against Gourley gun the one Roman had. determined that the was and to take Roman to the men Allsopp’s agreed Allsopp. see When met, the was and the Allsopp gun informed Roman that his called police. the brother,

Don at the time of Bailey, defendant’s testified that trial for probation he was on the theft of four from All- guns Gary sopp, including .22 caliber rifle and .357 caliber revolver. As a condition of receiving probation, agreed this witness testify had to at the consistently defendant’s trial with he a written statement had made that, At trial previously police. the witness testified af- ter stealing guns from he John Allsopp, placed and Renfro had the rifle and revolver in the van, witness’ which was in the parked driveway of home in that, Herrin. The stated although witness he had given defendant permission to enter and use the van whenever wished, he not given had defendant permission to take the rifle or the revolver. The witness stated further that he had not given Victor Roman permission to take the rifle the revolver and that Roman did not have permission enter or use the van. witness said that in September of defendant with living him and his wife at their Herrin, home in although during the first two weeks of September witness and stayed his wife had his parents with Carbondale in anticipation of baby. birth

John Renfro testified he and Don stolen Bailey guns had house Allsopp’s and that he had agreed plead bur- glary of Allsopp exchange being residence in sentenced to probation. Renfro identified the the guns placed rifle and revolver as in Don van Bailey’s around He that he September 14. indicated Don Bailey were guns “co-owners” of the that neither the stated nor defendant Victor Roman had to take them. He stated permission that the defendant had not been involved the theft of the guns from Allsopp’s house. 14, 1986,

Victor Roman testified September that on he gone had that, with the to defendant Don residence Bailey’s coming and after house, he, out the is, Roman, that and the entered defendant had because, the there parked van into upon through the van the looking windshield, had seen two on they guns the floor. He testified that the said they get guns. van, defendant could After entering the the the guns, the two the held and examined and defendant both witness revolver, the rifle the and removed them from namely, the and then neither he nor van, intending to them. The witness testified that sell put take The rifle was permission weapon. defendant had to either van, leaving the After the guitar into case defendant. provided Smith’s house to to sell Doug try Roman and defendant drove to had re- Smith was not at home. Roman stated that he guns, but man and the rifle to a turned alone to Smith’s house later had sold said, later, Gourley, he he had seen Steve days there. One two he buy who told him knew someone who would the revolver. When Roman to it to claimed the revolver was Allsopp, Allsopp tried sell that had his, and the were called. The witness testified he police of theft of firearms Don Bailey, the offense pleaded guilty conviction, his he to pro- that this was first that had been sentenced bation, that was that he was to tes- probation and a condition of at truthfully the defendant’s trial. tify Michael testified that he had investi- police Spruell

Herrin officer and had ob- Gary AIlsopp’s and theft house gated Roman, Bailey, from Victor Don and tained written statements statement, on which was given Septem- defendant. defendant’s evidence, part: 16,1986, pertinent and admitted into reads ber myself my Roman and went couple days ago, “A Vic through looked some food. We apartment, get brother Don’s I a pistol lying 1969 Ford van and Vic and found Don’s brown I took the back to Vic’s house. pistol on the floor. Vic and stolen, so and I were pistol probably knew that the was Vic it. I had it for out of have going get sell whatever we could this statement of the Herrin Police write Spruell Officer although stated that Spruell, to Officer defendant According van be- in his brother’s not sure to whom revolver had been been stolen. Officer might that have he “had an idea” longed, state- admitted, he wrote defendant’s however, that when Spruell gun him, that the defendant “knew” ment for he wrote have stolen, gun might that he “had an idea” not probably he had read the defend- further that stolen. officer testified been statement, him, had read the the defendant ant’s statement to it, statement af- signed the that, reading the defendant had after Later, September on accuracy. firming its truthfulness had been Roman that the rifle also learned from Officer Spruell from the van. taken sister-in-law, wife and the defendant’s Bailey, Bailey’s Don

Tracy that the had lived with her and her husband testified defendant of 1986. She stated that the defendant had had September their van. use after from the defendant testified that sometime his release of Corrections in of 1986 he had into his

Department May moved brother house in Herrin. The his Don’s defendant stated because and, repossessed, car had he Don’s car Don been drove when traded van, that car for defendant allowed to use that was vehicle. On 14, 1986, said, September he he and Roman had to Don gone Victor He he had into Bailey’s gone house. testified that the house alone and that when he came out Roman inside the van. house was guns The defendant stated that Roman told him there were inside the van and that he would like sell them. The to defendant said that he did not but went into the van to some respond retrieve speakers he time, had loaned to Don. He noticed the for guns the first he said, he after was inside the van. He testified that Roman took the .357 caliber revolver but denied ever having gun touched himself. The defendant testified further that he gun believed the might have been Roman’s because Roman had previously mentioned that he gun owned a and the defendant had never known his brother Don to a gun. have

The defendant stated that he and Roman returned to the van later that day get the rifle. Although defendant provided guitar rifle, case from house in which to carry the he said that he did not enter the van to retrieve the rifle and did not touch the gun. Defendant stated that he and Roman then took the rifle to but, Doug home, Smith’s house because Smith was not they at re- turned that evening. later The defendant stated that Roman sold the rifle to Doty, house, William who was present Smith’s but the defendant denied participating in in the any way sale of rifle to Doty. Defendant Doty testified that Roman told that the gun was “hot” and that this surprised information the defendant. morning

The next Roman told the defendant he had tried to sell the to its rightful revolver owner. The defendant accompanied Roman house, to Roman’s Spruell and Officer arrived there. The he defendant stated that had told Spruell Officer that he did not stealing think Roman the guns was when he them removed van. The defendant guns testified further that he did not steal the from the van given permission and denied Roman do having so. said, The written statement he given had to Officer Spruell, not truthful. rebuttal, Doug

In Smith testified that during evening of Sep- came to house. and Victor Roman the defendant tember Roman tried to sell the He the defendant and rifle stated that both him, who first quoted price and that it was defendant $35 price paid by to the actual figure selling Doty, later lowered that the rifle. bought who Bailey’s of Don convicted the defendant of jury rifle. The trial court denied the

van and the theft of the revolver and this followed. trial, appeal motion for a new defendant’s review, the defend- the first issue regard presented With a rea- not proved guilty burglary beyond ant contends that he was he entered the failed show that sonable doubt because State to en- authority He authority. argues van in without question therefore, that, his entry ter van was “unlimited” and and use the argument At oral a conviction for support into cannot at trial defendant conceded that there was sufficient evidence the intent that he entered the van with it could be concluded which maintains, in" the “limited upon a The State reliance commit theft. doctrine, authority given that the defendant exceeded authority” commit a theft. The he entered the van with the intent to him when of bur- in the alternative that defendant argues State accountability liability. theory under an glary authority A commits “when without burglary person building, within a authority enters or remains without knowingly aircraft, defined in The lili housetrailer, watercraft, motor vehicle as car, thereof, with intent Code, any part railroad nois Vehicle 1985, 38, par. ch. (Ill. a or theft.” Rev. Stat. felony commit therein is both without entry an 1.) burglary requires statute 19— or theft. v. felony (People and with intent to commit authority 434, 245, (1969), 41 Ill. 243 N.E.2d cert. denied (1968), Weaver 2d 746, Thus, a in 959, 2100.) 23 L. 2d 89 S. Ct. criminal 395 U.S. Ed. statute satisfy will not entry tent formulated after lawful However, enter authority to 434, 245). 41 243 N.E.2d (Weaver, Ill. 2d public only to the extends building open or other building business the reason the with enter with a consistent purpose to those who 371, 2d 288 N.E.2d (1972), v. Blair 52 Ill. building (People is open. 245; (1988), Drake Weaver, 434, People 243 v. 41 Ill. 2d N.E.2d 443; 1026, 519; Taylor (1987), v. People 527 N.E.2d 172 Ill. 3d App. Ill. 409; (1985), v. Boose 938, People 3d 518 N.E.2d Ill. App. 54 Ill. 1088; (1977), App. Davis 471, People v. 3d 487 N.E.2d App. (1975), 24 Ill. 3d 517, 1376; Woolsey App. v. People 3d 369 N.E.2d Housewright (1973), v. 614; ex rel. McLain 1079, People 322 N.E.2d 911.) entry building An into such 803, 293 N.E.2d 9 Ill. 3d App. with intent to commit a theft cannot be said to be within the author ity granted might (Boose, App. 471, those who enter. 139 Ill. 3d 1088; Blair, 371, 443; Weaver, N.E.2d see 52 Ill. 2d 288 N.E.2d 434, 245.) public Ill. 2d 243 N.E.2d When the involves a building, entry authority the element of without need not be estab apart entry lished (People Perruquet (1988), from the element of with intent to commit a theft. App. 1334; 173 Ill. 3d 527 N.E.2d Boose, App. 1088.) 139 Ill. 3d 487 N.E.2d Under such circum stances, entry the element of without need not be estab apart entry lished from the element of with intent to commit a fel ony, felony entry because with the intent to commit a authority." Taylor, App. "without 164 Ill. 518 N.E.2d 409. App. 619, 623, In v. Fisher 83 Ill. 859, 863, logic "public building" the court found the line of equally applicable apartment by cases to the of an defend given apartment ants who were purpose consent "to enter the for the limited visit, burglarize premises." of a social not to The court concluded that such cupants was not in accord with the will of the oc was, therefore, unauthorized. "Because defendants were given authority apartment purpose to enter the for the of a social only, they planned visit the criminal actions were inconsistent with given this limited and served to vitiate the consent entry." (Fisher, 862-63.) their 3d at 404 N.E.2d at part upon reasoning The court in Fisher relied in of the court in Woolsey, place in which the defendant's conviction of of his employment argument rejected was affirmed and his that he had building working not entered the without after hours be key given by employer: cause he had used a him his always against "`While unlimited consent to enter is a defense charge at common law or under statutes which breaking entering include in the definition of the offense and entry, place,

or the use of force in the time, a consent limited as to purpose is not a defense where occurs outside implied.' "(Emphasis added.) (24 the limitations stated or Ill. App. 1082, 617, quoting Annot., 3d at 322 N.E.2d at 93 531, (1964).) A.L.R.2d 537 People (1983), App. We followed Fisher in v. Hudson 113 Ill. 3d 1041, 178, holding entry by 448 N.E .2d in that the defendants there authority" they was "without under the home invasion statute when private acquaintance came to the residence of a social and were al through occupant lowed to enter the residence the invitation of an weapons upon hosts, gagged but later drew their their bound and 286

them, People (1988), in v. Davis Recently, stole their property. and 552, 555, determined 305, N.E.2d the court 300, 173 Ill. 3d 527 App. and an therein let defendant although the murder victim house, of home invasion had been into the the elements other man established: because, as the hold otherwise persuaded

“We are not to men into have let the two argues, may Moses Willis defendant did, did, it he if he It is not but the house. reasonable evidence shows that independent The cumulative immaterial. ac gained codefendant regardless of how the defendant and possible home, they original cess to the exceeded any Willis his terrorized Willis and they to them when authority granted 427, 472 129 Ill. 3d People Strong (1984), App. v. family. 1041, 1152; 113 Ill. 3d (1983), App. N.E.2d v. Hudson People 448 N.E.2d 178.” 129 Ill. People Strong (1984), App. earlier in v.

Hudson was followed 1152, App. 129 Ill. 3d 427, (1984), v. Sanders People 3d 472 N.E.2d 1156, Ill. 552, People (1985), App. v. Racanelli 132 472 N.E.2d home 1179, the offense of 124, 3d N.E.2d each which involved invasion. People v. distinguishable in found the case

The court Sanders 1090, 334, predating 3d 411 N.E.2d as (1980), App. Peace 88 Ill. authority” “limited doctrine restricting Hudson and Peace, the second dis The court decided buildings. of public rule of trict, buildings “to the ‘limited unwilling purpose’ extend au express purposes as allow to open public apply to the so defendant’s en home” and determined that the private thorized in his convic authority, reversing was not try into a residence without 336.) 1093, 411 at (88 N.E.2d App. tion for Ill. 3d aby to enter the residence permitted defendant Peace had been him to enter at there, who had allowed girl 12-year-old babysitting and at telephone; while there battered to use request cases, including Peo that in a series tempted to her. We note rape 176, 100, In re 375 N.E.2d v. 3d pie (1978), App. Baker 883, (1983), rev’d 535 N.E.2d App. Ill. S.R.H. delin (held: allegations supplementary 449 N.E.2d 129 Ill. 2d sufficient authority” “without omitting phrase petition quency Hepler (1985), burglary), with charge respondent 768, 773, district has the second Ill. it said in building, as private into a involving entry held in cases sepa entry proved must be an unauthorized “that the fact of Hepler, wrongful intent.” entry of an with rately from fact burglary statute makes no distinction between a build ing and a motor vehicle. The law is well established that one who en(cid:127) public building felony any possi(cid:127) ters a to commit a or theft exceeds original authority granted ble. to enter. The so-called "limited authority" doctrine has been extended to include the of 2 private applied residence as well. The doctrine has been further tc purposes application the offense of home invasion. For of this burglary statute, meaningful doctrine to the we can make no distinc private tion between a residence and a motor vehicle. As the court App. 50, 54, said in v. Schneller 69 Ill. 510, 512, entry which held that into a museum with intent to commit authority: a theft was without opening public "The of a museum's doors to the is an invita purpose viewing tion to enter for the lawful display. the exhibits on authority accepts of one who such invitation i~

necessarily offer, coincident with the terms of the and it would contrary ordinary understanding to reason and human tc deduce that the welcome extended under those circumstanceE any purpose, especially includes to enter for different one which is unlawful or criminal." contrary ordinary understanding We think it to reason and human tc suppose permission that the extended to the instant defendant hi~ brother to enter and use the van included to enter it in or- part Indeed, Bailey expressly der to steal of its contents. Don testi- given permission fied that he had not the defendant or Victor Roman weapons to take either of the that were removed from the van. Plainly, the defendant's here was not in accord with the will ol was, therefore, his brother and unauthorized. We conclude that the authority granted defendant exceeded the to him to enter and use weapons the van when he entered it to steal the contained therein authority. and hold that his was without Since the defendant dispute does not that he entered the van with the intent to commit s theft, judgment we affirm the entered on the convictionfor properly guilty Even if the defendant had not been found o~ burglary by having authority given virtue of exceeded the him to en van, jury properly concerning ter and use the gal responsibility, instructed le sup and sufficient evidence was adduced at trial to port theory accountability. may a conviction on a A defendant bE theory accountability found on a under section 5-2(c) (Ill. 38, par. of the Criminal Code of 1961 Rev. Stat. ch. 5-2(c); see, e.g., People Riley (1981), (convictions N.E .2d 1377 and theft affirmed on basis oi a To though charged principal)). was as even defendant accountability to that accountability necessary it is establish guilt through establish the or com planning or to aid another in agreed the defendant aided offense, took either be participation place of the that such mission offense, the that the defendant fore or the commission of and during of the commission the offense. Peo intended to facilitate promote 847; People Ill. N.E.2d v. (1984), App. 3d ple Ruckholdt 199, 369 N.E.2d 363. (1977), App. 54 Ill. Menken case, that he and the In the instant Victor Roman testified van, the on through guns the windshield of the saw defendant looked to the then floor, the decided take them. Roman and defendant and Both and van, weapons. handled the Roman the entered the and both case in provided guitar that the defendant defendant testified addition, In in his statement to voluntary which to the rifle. carry that both and Roman took Spruell, Officer the defendant admitted - for “going from the were to sell it what pistol they van and get out it.” The evidence shows defendant ever we could offense, in of the that defendant’s par aided Roman the commission offense, the commission of the and that ticipation during occurred facilitate the commission of promote the defendant intended to and more sufficient The evidence adduced trial was than offense. of bur permit to conclude that the defendant was jury a theory accountability. on glary

Furthermore, argue that his defendant cannot into entry and enabled him to authorize Roman’s enter use the van stealing Peo weapons. (See for the purpose van unlawful In Mar 1039.) ple v. Martin in his unemancipated living minor tin the court that while an held into the had the authorize parents’ ability house have may person’s he could not authorize third en purposes, house for lawful stealing for his into the unlawful try parents’ purpose house case, it beyond in the instant jewelry. parents’ Similarly, to enter Don Bailey’s to allow Roman defendant’s Victor and, a theft as Ro committing consequence, purpose van into the van was unauthorized. man’s its dis- that the trial court abused

The defendant contends next because that sentence in an extended-term sentence imposing cretion partici- on the other imposed to the sentences disparate was grossly that four were people contends in the offense. The defendant pants belonging Gary theft of the guns and the involved in his sentence was more that because argues The defendant Allsopp. on other involved imposed persons severe than the sentences guns, theft of the his sentence should vacated and the re be cause out, however, manded for As resentencing. points the State Ed- only and Victor Bailey Roman were defendants in the instant case. Neither the defendant nor Roman was involved in the theft of guns owner, from the home their Gary Allsopp. sentences imposed for the Bailey offenses committed Don Renfro, John who the Allsopp entered home and removed the four weapons, cannot properly compared imposed be to the sentence upon the defendant’s burglary conviction inasmuch as Don and John Bailey Renfro were neither involved in nor charged with the van. The only sentence with which the defendant’s sentence can Roman, is that properly compared of Victor who participated the criminal act of See, which the e.g., defendant stands convicted. (1986), 626, v. Jackson App. 145 Ill. 3d 495 N.E.2d 1207.

It is not the function of reviewing court to serve aas sentencing and, court discretion, absent an of abuse a sentence will not be on disturbed (People Holloway review. v. 119 Ill. (1983), App. 1014, 3d 466.) 457 N.E.2d Fundamental fairness and respect law, however, require that similarly defendants should not situated receive grossly disparate sentences. v. (People (1983), Cook 112 Ill. 621, 3d App. 824.) In whether determining a sentence excessive in of light codefendant, a lesser on sentence con imposed sideration tois be given to the differences in background criminal and the degree of participation by each defendant in the commission of the offense. v. (People Martin App. 13.)

N.E.2d A disparate sentence be either a may supported by more serious criminal greater record or in participation the offense. Mar tin, 81 Ill. N.E.2d 13.

A comparison of the of criminal records Victor Roman and the defendant supports the that conclusion the trial court did not its abuse discretion sentencing in informa only defendant. tion concerning the criminal of in-the activity Roman record that the day before the defendant’s trial commenced on January Roman pleaded to the theft of a firearm from Don Bailey’s van and was placed probation. brief, on As defendant in admits there is no in indication that a juvenile record Roman had record of delinquency. Roman’s only substantiated conviction to be appears that of arising out the incident involved here. By comparison, record shows that the adjudicated instant defendant was delinquent while juvenile on three separate occasions for of the offenses bur glary addition, and theft. In charged in 1984 defendant was as an adult with and theft. Two months later the defendant was in both cases negotiated pleas theft. He entered again charged with Department term of three years and was sentenced run concurrently. with the sentences to plea Corrections as each May until incarcerated in the of Corrections Department He was 1986; year that defendant committed September on 14 of same convicted herein. and thefts of which was it defendant, had sentencing In the trial court stated argu- and had heard the presentence investigation report read and the statement ments and recommendations counsel in the prior stay The court that the defendant’s defendant. observed not dissuaded him from apparently of Corrections had Department crimes, stating pre- of further that the only way the commission to incar- still further crimes was committing vent the defendant that would serious- deprecate cerate him. The court indicated sentenced to a of the offense if the defendant were not ness society of time in and that needed be prison period considerable the trial Thus, the record reveals that protected from the defendant. its imposed and did not abuse court considered the sentence carefully an extended-term sentence sentencing discretion in the defendant to years Accordingly, the conviction for sen- upon now may tence not be disturbed. concedes, contends, and the State

Finally, the defendant on extended-term sentence imposing trial court erred an that the his two convictions for burglary conviction and both defendant’s multiple offenses theft. a defendant has been convicted When an extended classes, exist which warrant and circumstances differing for the con term, may imposed only extended-term sentence an the most serious class of offenses Jordan (People viction within an ex The 192, 569). imposition 103 Ill. conviction, a Class burglary the defendant’s tended-term sentence for burglary 2 of the defendant’s prior was warranted because felony, sen However, of concurrent extended-term conviction. the imposition firearms, felonies, 4 is erroneous. of the Class tences for the thefts on the resentencing remand for Nevertheless, this court need not extended term imposition six-year The court’s -a theft convictions. maximum sentence per charges, being each of the theft on extended-term provisions 4 under the felony mitted for a Class (Ill. Corrections Rev. of the Unified Code of 8—2(a)(6) section 5— that the sen 1985, demonstrates 38, 8—2(a)(6)), ch. par. Stat. 1005— penalty. the maximum allowable tencing impose court intended years’ is from one to three for a Class 4 felony The sentence range 38, par. 8—1(a)(7).) (Ill. Stat. ch. Rev. imprisonment. 1005— This court therefore the maximum may impose allowable non- extended term of three years for the two theft (See convictions. Peo ple v. McNair (1985), 941.) N.E.2d Accord we ingly, affirm the judgment upon the defendant’s convictions for theft and burglary, we affirm of 10 years the sentence imposed upon conviction, modify we the sentences imposed upon each of the convictions for theft to three all years, sentences served concurrently. affirmed;

Convictions sentences affirmed in part and modified in RARICK, J., concurs. CHAPMAN,

JUSTICE dissenting: in join cannot decision because it majority’s further erodes the distinction between theft and today, After burglary. virtually any theft which in building occurs a or a vehicle can be pros- successfully Indeed, ecuted as a burglary. instance only where a theft is not a burglary, under the majority’s reasoning, is where occurs an open field or on a public street. My dissent is not solely based on my concern extending about the limited authority doctrine to motor vehi- cles. It is certainly not based upon concern for this (It defendant. difficult to feel any concern for a who person steals from a brother enough who is kind grant vehicle, him the use of his even though the brother himself is confessed thief.) My concern is that anyone convicted of a crime should be convicted of the conduct the leg- islature intended to prohibit and punished should be according to the penalties prescribed for that conduct. defendant here is guilty of theft and should be so not sentenced. He is

My disagreement with both majority upon based the histor ical elements of the crime and a critical examination of breaking the doctrine itself. at Burglary common law was a and en dwelling nighttime tering house of another with the in Stat., tent to felony (Ill. commit a Ann. ch. par. Commit 19— Comments, tee (Smith-Hurd 1977), citing Blackstone, 224)). Commentaries portions underlined sen preceding tence justification furnish the treating burglary as more serious First, crime than theft. simple breaking involved a into a element that building, suggests degree an of force or violence. Sec ond, it dwelling presence involved and the consequent possible presence people as to harm to opposed property Finally, it only. 292 dark, important any is less for probably which

was a crime of it for the in than is night connotation of evil associated with night in the building in the presence creased likelihood of human The stress on time, injury. the increased likelihood of and therefore is not meant to that human imply to an inhabitant possible injury . the It burglary. of the crime of was necessary was a element presence to which someone was dwelling place sufficient that the site was Ill. 618), 165 but (Schwabacher to return likely the older and under the out that under both statutes point meant to as serious treated and a more separately common law was nature of the entered property. offense because early in the statutes distinction was followed This common law heading under on The 1827 statute listed Buildings” Other Habitations and Against “Crimes and Offences 1827, 133, Ill. while lar seq.), of the Laws of at et (Rev. Code §58 “Crimes and the more Offences general was classified under ceny 1827, 134, of the Laws of Ill. at (Rev. Code Property” Relative (Rev more severe . penalty et and the for seq.), §61 133, §60, at §62). of Ill. at Code the Laws essentially as it remained The 1827 statute is set out below (except penalties) through repeated changes: same time, shall, the night willfully, who in Every person

“Sec. 60. enter, willfully and and mali forcibly and break or maliciously, being open) or enter (the force doors windows ciously, without kitchen, store-house, house, office, any dwelling shop, into ware-house, malt-house, still-house, mill, water pottery, factory, murder, craft, meeting-house, with intent to commit church, or other shall be rape, larceny, felony, robbery, mayhem, thereof, shall upon conviction deemed guilty burglary; nor more than one hundred fifty, not less than be whipped, not than lashes, back; fined a sum more one on his bare dollars, exceeding for a term not and be imprisoned thousand Ill. at three Rev. Code of Laws of years.” §60. note, covered was buildings As of historical the class a matter ele-. (§2)), nighttime Ill. 112 (1869 1869 Laws expanded (§1)). (1877 nighttime Ill. ment was eliminated Laws 1877, although legisla- in 1885 the since element has remained absent for nighttime minimum sentence for a more serious provide ture did (1885 (§1)). entry Ill. Laws statute, the common retaining while early

It that this apparent proscribed had broadened entry nighttime, law requirement dwelling common law that of the beyond buildings considerably house. as requirement The statute also relaxed the of forcible an legislature recognized could be made into illegal legislature as well as a The did how- open building. require, closed ever, that the made This entry willfully maliciously. require- ment was in addition to the of to commit one of the element intent enumerated crimes once the the The ele- building. defendant was in willful, ment legislative malicious in re- entry repeated every was enactment until the in present burglary of our statute the passage Criminal Code of 1961. That statute reads: Burglary (a) person A commits when with burglary

“§19—1. out he authority enters or without re knowingly authority housetrailer, watercraft, mains within building, aircraft, a mo tor car, vehicle as in The Code, defined Illinois Vehicle railroad or any part thereof, with intent to commit therein a felony theft. This offense shall not include the out in offenses set Section 4—102 of The (Ill. Illinois Vehicle Code.” Stat. Rev. 1985, 38, 1.) ch. par. 19—

The element of intent is still present the statute. The earlier “will ful, language malicious” has replaced phrase been the “without by authority,” which has been construed to the possess meaning. same People See (1966), 50, v. Schneller Ill. 69 216 N.E.2d 510.

In this case the defendant concedes argument at oral that there was evidence from which the jury could conclude he that entered the van with the intent theft, to commit argues but he that he cannot be guilty of burglary because of the absolute authority to enter and drive his brother’s van possessed. which he The statute does set out two separate elements: intent The without State authority. concedes the extent original of the defendant’s How then authority. has the defendant been convicted of burglary rather than theft?

The to answer the question lies not in the criminal that statute the legislature passed, has but in the the statute has been con way strued the courts. The first cases to the of limited apply doctrine authority dealt with public buildings. Supermarkets and museums are obviously public. to the is free open Anyone to enter. All have lawful authority to enter. Nevertheless the courts have affirmed convictions charges on defendants of stealing convicted from such buildings. 434, The case of People (1968), v. Weaver 41 Ill. 2d 245, 959, 746, N.E.2d cert. denied 395 U.S. 23 L. (1969), Ed. S. Ct. involved the of a laundromat. The defendant contended the State had prove failed to that he entered without authority because the laundromat the at time open was to public the crime was committed. Justice entering Schaefer first stated that crime, elements of but authority was one without lawful The only of the defendant. then went on affirm conviction was Brown support holding case cited in Weaver its pro se defend 74 N.E.2d which involved claimed burglarizing gas ant convicted a 24-hour station who in Brown char only have The court larceny. should been convicted “The of these argument language: gist acterized in the following upon contentions is that an indictment for cannot be based (Brown, 707.) an Ill. at entry without force.” provided on hold that since the statute court in Brown went though conviction even was burglary charge on guilty. “without force” found properly defendant was authority doctrine for court in Brown did-not discuss limited sug rationale that has been only which was cited in Weaver. The gested holding public for the is that the extended to authority enter, enter with but not the only the initial au evil intent and that the evil intent therefore destroys separate is The with this rationale that intent is thority. difficulty element of the crime. Proof the one element does not establish proof other. Ill. App.

The v. Schneller majority quotes 287). The 3d at (Bailey, go one appeal. surface No is quotation in the has a certain analysis his museum or upon thieving into ing to invite a thief who is bent right to have the supermarket private or home or van. The owners lit- give would thief do so. courts proper exclude the thieves who com brought tie to suits frustrated consideration let enter the mar would not him plained that owner supermarket of private ket it of But we are not speaking to rob its rhubarb. legislature says of the Criminal Code. rights. speaking We are of the owner control over property that the exertion of unauthorized It that enter says also punishable by penalties. is theft and is certain or felony theft another ing authority coupled when with without If a thief penalties. more severe punishable by more serious and is rhubarb,” and your said, you “I into store to rob coming your am answered, those circum can’t come under the store owner “You activities, then the stances,” in his criminal the thief persisted entered with knowingly thief because would authority he had no com out To that the thief knew authority. say to enter. mit he knew he had no say theft is not in the statute? “without mean authority” do these words What authority. What the doctrine limited nothing mean under They then do mean in other they criminal statutes? A review of the Crimi- nal Code reveals a plethora phrases identical to substantially similar to the “without authority” language of statute.

The following statutes contain “without phrase authority” or similar language. are all in They chapter 38: Unlawful without “knowingly legal

§10—3 restraint — authority” ‘ ’ Forcible detention— ‘without authority’ lawful §10—4 Assault—“without lawful authority” §12—1 Intimidation—“without lawful authority” §12—6 ’ Home Invasion—‘ ‘without authority’ §12—11 Theft—“exerts §16 unauthorized control” —1 Theft from coin-operated §16 machines—“without —5

authority” Computer tampering §16D authorization” —3 —“without Rebuttable presumption §16D authority” —7 —“without Impersonating a police §17 office—“when not —2

authorized” Criminal trespass to §19 residence—“without —4

authority” Criminal trespass to §21 vehicle—“without —2

authority” Interference with a public §21.2 institution of higher —2

education—“without authority” Mob action—“without §25 law” —1 Bringing §31A contraband into a prison —1 —“without authority” Performance of unauthorized §32 acts—“not —6

authorized by law” Tampering with public §32 records—“without law- —8

ful authority” Tampering with public §32 notice—“-without lawful —9

authority” Looting of authority §42 law or the —1 —“without owner” The effect of the majority’s decision on these unclear, statutes is but the possibility exists that the judicial excision of legislative lan- other any of the in the statute could be extended guage Indeed, authority” held “without similar statutes. this court has that the home inva should mean the same under the and thing v. 3d People App. sion statutes. Hudson Ill. 180-81. the lim- of involvement of other statutes in specter possible is more concerned be- prime

ited area not concern. am authority my has expansion authority cause this further of the limited doctrine the of placed within reach the surprising group people A the exam- burglarized statute: lessees and owners of few premises. pies serve illustrate concerns. my one them takes

Two brothers share an and apartment, $5 claims charged, the desk of the other. is and the defendant Burglary the and (1) entering apartment; that: he had no intent to steal upon The trial into the not unauthorized. (2) entry his was apartment has care- however, trickery, is not because he judge, fooled such read the fully appellate the court. opinions the “The fact that is taken after evidence property entry citing time the entry” judge,

intent to steal existed at the states v. Ill. N.E.2d 1262. People (1984), 124 App. Snow defendant, true, honor,” my “But if that your pleads “even is, all, my into the was not It after apartment unauthorized. apartment.” defendant,”

“Foolish says judge, rolling eyes pit his such use iful “It is well settled to enter and argument. pur not enter for the apartment does include did testified that he pose stealing part of its contents. Your brother court from his desk. As the give not to take you permission $5.00 here v. the defendant’s Bailey, ‘[pjlainly, explained was, therefore, un not in accord with the will his brother ” 278, 287.) Bailey (1989), authorized.’ (People “Guilty charged.” as a fur- are the lessee of disturbing: (1)

Other examples equally (2) a to the apartment belonging lessor-burglary; nished sells a lamp a cable outlet—bur- illegally homeowner connects television to had that a customer (3) a store owner sells watch glary; jewelry a homeowner uses someone brought repaired burglary; (4) to be — from his home— credit call long phone else’s card make a distance tire from (5) spare man a car steals the burglary; rents trunk — course, might acceptable, The results of above scenarios pun- to be intended such activities legislature if it were clear that

297 statute, as The of the how plain language ishable ever, such an The statute states that a bur precludes interpretation. a person is committed when without enters glary authority knowingly or authority building without remains within or with the in vehicle tent or a added.) (Ill. to commit theft. Rev. Stat. felony (Emphasis 1985, 38, 1.) ch. reads the par. majority opinion effectively 19— phrase “without is a authority” out of statute. “It fundamental must, rule of construction that each if statutory provision possible, be given (People (1977), some reasonable v. Warren 69 Ill. 2d meaning.” *** 620, 627, 10, 13.) Moreover, 373 N.E.2d be con should “[statutes strued, if so no possible, word is rendered or meaningless super v. People (1985), 389, 394, fluous.” Wisslead 108 Ill. 2d 484 N.E.2d 1081, 1082.

There can be no doubt that decision treats the majority’s phrase authority” “without as mere surplusage. The ac majority knowledges that its decision is based on limited doc authority trine, which originally evolved from public cases involving buildings. The majority further states that under that doctrine the element of without authority need not be established from the ele apart ment of entry theft, with intent to felony commit a because entry with such an intent “without authority.” (Bailey, Ill. 188 App. 285, 3d at citing v. People Perruquet (1988), 173 1054, Ill. App. 1334; 527 N.E.2d v. 139 (1985), 471, Boose Ill. App. 3d 487 N.E.2d 1088.) subsequent extension limited doc trine to private has, residences therefore, and now to vehicles re in judicial sulted amendment of the burglary statute. believe that in so doing, the majority is invading province legislature. This invasion is particularly disturbing view of the fact that criminal statutes are to be strictly construed in favor an accused. People v. 204, Lutz (1978), 212, 171, 73 Ill. 2d 383 N.E.2d 174.

I recognize that courts, one, other appellate and indeed this have in the recent past adopted the doctrine of applied limited author ity. It has been extended not only public but buildings, pri also vate residences (People v. 132 (1985), Racanelli Ill. App. 3d 1179; People N.E.2d (1983), Hudson 178; People

N.E.2d v. Fisher (1980), 83 Ill. App. 3d 859), and the same always given. rationale That rationale is un sound and should be or at not rejected least extended. There is no real reason to refuse to extend the doctrine of limited to a van except recognition that a mistake has been made when was originally As Justice adopted. Jackson said: Court Supreme “[The is] infallible, not final because infallible only because fi- [it is] [it is] [it is] 443, 540, 469, 533, 97 L. Ed. (Brown nal.” v. Allen 344 U.S. J., as court (Jackson, concurring).) appellate 73 S. Ct. anWe as appellate are neither final nor infallible. We sit an intermediate court, this removed from the but even at level we are somewhat concerns of of that isolation everyday humanity. Regardless concerns, everyday comprised human all courts are nevertheless human, a humans. make is to fail to mistake recognize To a mistake has is Both are But to failings permissible. been made also human. a fail to that mis recognize rectify that mistake has been made to human, take it not a action for an may permissible appellate but is of Therefore, to limited court take. we should not extend the doctrine authority entry to into a motor vehicle. affirming on of is that argument

The alternative behalf majority’s difficulty an accomplice. the of as guilty defendant as the ear- this is that relies on identical rationale position with the i.e., the argument lier on the doctrine of limited that authority, for only purposes defendant had the to enter lawful authority that that his intent to commit vitiated author- (or Roman’s) the defendant had full in this case establishes that ity. evidence to of such regard power unbridled with the van. Possessed authority store, to a the he in for ride to the over van could invite friend station, any purpose authority service or for other because his van, authority. enters enters with unlimited. that friend the When de- The fact the friend intends to the van does not that steal from the authority under which he entered. stroy illustrate, to brothers again

To I refer the two example friend enter sharing If one of the allows a to apartment. an brothers his intends to steal apartment, knowing that friend $5 desk, of find that the brother brother’s would majority Ac- apartment theory accomplice liability. on a of burglarizing own enter authority the friend’s to cording reasoning, the majority’s to committing for the purposes cannot to enter authority include enter theft, authority the fact that he was to notwithstanding given unless unsupportable this reason. Such conclusion is precisely made for the any premise: one the truth accepts of a authority” regardless a theft is committing “without purpose I demon- attempted to enter. As have authority actual person’s above, strate this is false. premise does, that the second dis note, I the majority

In would as closing, build authority private the limited doctrine trict has not extended recent case court supreme also note that the ings. would reviewed People Simms evidence of entry without in a murder —home invasion —resi- dential burglary case. This review the evidence suggests supreme court not be may willing to extend the limited doc- homes, trine private so, because if it willing were to do there would

been no necessity to review the sufficiency the evidence in Simms. The court could merely have ruled that the in- with tent to commit the crime vitiated consent any enter that have may given. been

In view of the foregoing, I respectfully dissent from that portion of the majority’s that affirms the opinion burglary conviction.

THE ILLINOIS, PEOPLE THE OF STATEOF Plaintiff-Appellee, v. BARNHILL,

RODNEY DALE Defendant-Appellant. Fifth District No. 5—87—0818 19, 1989. Opinion September filed

Case Details

Case Name: People v. Bailey

Court Name: Appellate Court of Illinois

Date Published: Sep 8, 1989

Citation: 543 N.E.2d 1338

Docket Number: 5-87-0355

Court Abbreviation: Ill. App. Ct.