*1 ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE v. MACK OF DAVIS, Defendant-Appellant. ARTHUR
Fourth District No. 13978
Opinion filed November 1977.
REARDON, J., dissenting. P. Office, Wilson, Springfield, of Appellate Richard of Defender’s State J.
appellant. (Robert Perry Jeffrey C. Jr., Attorney, Urbana Burgess, R. State’s James Levens, Association, counsel), for the Attorneys B. State’s both Illinois People. the court: opinion
Mr. MILLS delivered JUSTICE criminal supplying about generalities all the agree “We using against omit, is no canon there they laws with what obviously they saying what construing laws sense common mean.” in Roschen Holmes
—Mr. Justice 337, 339, 73 L. U.S. Ward (1929), 279 722, 728, Ct. 336. 49 S. Ed. in Illinois? constitutes appeal: The central issue to this what first, But facts. some him with the charging filed against
An Mr. Davis was information in that he Champaign Construction Co. burglary of Consolidated building part of” the knowingly and without “enter[ed] trial, a theft. At the intent to commit where its offices were located with Consolidated, Gordon, stated Jr., operator Willie owner and 4,1976, a customer an estimate for during May typed afternoon building it. had one p.m. and left his at 3:20 to deliver offices at returned to office and he locked it when he left. He entrance missing. Gordon open 4:05 the door p.m. and found down, and, Lee building in a found left the store two doors Johnson. John Community Depot, Action Johnson, building used for the who Gordon he told was asked Gordon he took the *3 building had left the p.m. had 3:55 unlocked the outside door about office, to the Gordon returned about 10 minutes before Gordon’s return. were people five or six police
called the and then went out to where them had seen nearby any if standing behind store. Gordon asked had any of them anyone go get typewriter into the office and he replied, stating group taken it. Defendant was the one of the who seen that he had not anything typewriter,” “didn’t know about the nor Neither defendant anyone go typewriter. into the office and take the to take had be in Consolidated’s office or general public 4,May p.m. About 4 on Shop. Fabert Trader’s World Pawn Owen owns $25. Defendant typewriter defendant for purchased Fabert alone, Defendant was didn’t signature appeared on the bill of sale. Davis’ very transaction took a (Davis $25) and the bargain price suggested over Consolidated’s office. Trader’s blocks from short time. World two typewriter Consolidated’s. in 1968 and testified that he had been convicted
Defendant p.m. and about 4 day May all on drinking 1972. He had been alcohol asked wearing sunglasses height train a man his was near the station when $25 man wanted for Of the pawn shop. him to a to take made s7. Defendant give he would typewriter, transaction, received the purchased *7 and some whiskey. Defendant didn’t know who the man was. Defendant stated he was never in Consolidated’s office. copies Certified of defendant’s prior convictions were admitted.
The floorplan building is as follows: *4 The connecting doorway to the occupied area by Consolidated Construction is somewhere between 5 and 15feet wide. There is no door. Townsend, Terry and both of whom work part the front building, have free access to Gordon’s office. Gordon has seen members come into the front building. He never saw defendant with the signs front door showed no of forced entry. guilty by
Davis was found and was sentenced to 6 to 20 2/3 years’ imprisonment. argues He first the evidence adduced was prove entry building, insufficient his lack authority, into or his intent to commit theft. explanation day’s He also contends that his incredible, denying guilt, events even can’t be used as an admission of guilt.
However, think parties both argue positions they based on what means, burglary the statute states and distinguished from what comprehends. law,
At burglary common against was a crime habitation. Powell 9 Ill. App. 3d N.E.2d As described Code, Committee Comments to our Criminal the elements burglary were “the breaking entering dwelling house of another nighttime Stat., with intent to commit felony (Ill. therein.” Ann. ch.
par. Comments, Committee (Smith-Hurd at 307 (1970).) The 19 — rather strict interpretation by those courts of the individual elements resulted only construction, penal normal rules of but also from the terminal e.g., State v. sentence waiting (see, for those convicted Wilson (1793), 1 (Coxe) 439). legislature Illinois’ shaped has what is N.J.L. now called “burglary” unrecognizable form to our common law ancestors. Gone is the element of “breaking,” from which word such fine distinctions sprang. Gone too are the “nighttime” elements of house”; “dwelling is now a 24-hour may crime which practiced upon a number designated man-made cubicles. Section 19— 1(a) of the Criminal Code of 1961 now states:
“A person commits authority when without knowingly enters or without remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Code, car, thereof, Illinois Vehicle any part railroad with intent to commit therein a felony or theft. This offense shall not include the offenses set out in 4—102 Section of The Illinois Vehicle Code.” (Ill. Rev. Stat. par. 1(a).) ch. 19 — The essence of the crime is entry designated into the areas with the (see intent Urbana 511; v. Rossi 112 Ill. App. 528). Naturally, the State has the proving necessary entry burden of intent at the time (Rossi.) made. jimmied, Where a has been window broken or door However, intent is easily shown. breaking required, proof since no now of an entry unforced can by person eyewitnesses when there are no be accomplished by circumstantial evidence and inferences drawn therefrom.
522 demands a discussion of what is situation, particular clarity
In this in issue. The use of force material to decide defendant’s reasonable doubt entry necessary burglary has of in Illinois some not been a element 529, People v. Brown (See (1947), 706.) 397 Ill. 74 The time. N.E.2d “close” broken in the instant case was not the front door of the building; “entry” by passing through doorway building the occurred the inside the Historically, into office Illinois courts have that recognized Gordon’s area.
entry separate building into certain areas of a with the intent requisite People (1891), v. Kincaid support burglary charge. (See could a 139 Ill.
213,
had occurred when an open loading defendant went door. key entry prohibited space, to the crime is into the entry whether handle, lock, by turning cracking walking through open made a or an Shannon, of Blair portal. light logic entry demands that “part” building through open doorway of a intent is a with prohibited act statute. under our
“Authority” is likewise of little concern here for three reasons.
First,
in his
authority
Gordon testified that Davis and others had
to be
no
any
office.
in
No evidence before the
offers of
showed
to use the office.
permission
or Townsend had
to allow others
public place
argue authority
inapposite.
Defendant’s use
rule to
building,
The rule states that
to enter a business
or other
those who enter with
building open
public,
to the
extends
purpose
building
open.
consistent with the reason
434, 243
Weaver
cert. denied
(1969), 395 U.S.
41 Ill.
N.E.2d
v. Schneller
(laundromat);
23 L.
614.
Therefore, we entry Entry, are left with and intent. and the thereof, theft, manner as well as intent to may commit be inferred from (People Cokley (1977), v. in 888, the facts evidence. App. 45 Ill. 360 3d People v. 545; Rollins (1976), N.E.2d 42 Ill. App. 3d 124.) N.E.2d Circumstantial burglary may evidence of arise from either evidence of entry or evidence example, criminal’s later acts. For in the absence circumstances, of inconsistent entry of unlawful a building into which personal contains property subject larceny that could be the gives rise inference that will a burglary sustain conviction. The inference, grounded in human experience, is that the unlawful entry was purpose. People v. purposeless likely indicates theft as the most 441, (1963), Ill. Johnson 28 2d 192 864. N.E.2d addition, may evidence of a defendant’s acts subsequent give
rise to inferences sufficient to sustain a conviction. It is law that hornbook nothing in support need be taken order to a burglary conviction based on theft; however, intent to commit a inferences may arise from defendant’s later possession of the fruits larceny work. The fact that was or theft actually committed is evidence that entry the earlier was accomplished (People v. Franceschini with an intent to commit that offense. (1960), 20 126, Ill. 169 244). 2d N.E.2d A participation in the crime is circumstantially recent, established exclusive and unexplained possession proceeds gives itself rise to an v. inference guilt which is sustain a sufficient to conviction.
Umphers (1971), People Brandy v. 853, 278; App. 133 Ill. 272 2d N.E.2d (1974), 22 Ill. App. 70.) 3d 318 N.E.2d Even defendant Davis’ trial and appellate counsel admitted theft on defendant’s was record; strongly reflected in the trial sought unsuccessfully counsel include a jury. theft instruction Applying legal for theories of Franceschini and Umphers to the instant case, it was improper for jury to infer from the facts them that Davis typewriter, before stole the and that he entered Gordon’s intending office area to commit theft.
524 urges explanation
Defendant that his of events —even if guilt. incredible —is not evidence of his It is well settled that when a crime, justify participation defendant elects to at or near the scene of a while denying participation, story judged he must tell reasonable or be (Rollins; People v. improbabilities. its Ill. (1967), App. 88 2d Johnson 554; People McCoy (1972), 3 App. N.E.2d Ill. 3d 417; v. Morris N.E.2d 7 Ill. App. 73.) Logic applies indicates this rule with force to a equal explanation possession proceeds of his of a recent burglary. Defendant story problems. impeached Davis’ has severe time The bill sale shortly defendant’s denial to after story, Gordon the crime. Defendant’s explicit while regarding typewriter stranger, transaction with became clouded when the conversation with Gordon was raised. He couldn’t stranger remember. The transaction with the is less than credible.
This case does not contain evidence of defendant’s acts inconsistent with
in v. Soznowski
theory
of his
earlier intent to steal as
Ill. 2d
The standard is unquestioned: we use on review the circumstantial evidence must guilt, be such as not consistent with defendant’s inconsistent, upon any hypothesis, reasonable with his innocence.
(Cokley; People Brown inconsistent, upon any evidence before us hypothesis, reasonable with defendant’s innocence. It proper was to infer that after open, left front door defendant entered and went intending Gordon’s offices back something. to steal quickly
taken and pawned. Defendant near the building returned anything told Gordon he didn’t know about the When the bill *7 surfaced, of sale attempted defendant to his in explain presence pawn the shop with the is palpably contrary The verdict the to weight of the evidence.
Next, it is denying contended that the court erred in an However, judges. “amended” motion for substitution of the facts indicate that 5(a) defendant filed a motion based on section of the Code of 114— 1975, 38, (Ill. Criminal par. 5(a)) Procedure of Rev. Stat. ch. 114 — naming only judge the the assigned granted then to case. The motion was Judge Munch trial. assigned Only was for then did the “amended” motion for 5(a) naming Judge substitution under section Munch 114— appear. The are 5(a) Committee Comments clarion: section allows 114— one may judges. motion which contain the name of two The second (or motion) motion require “amended” thereunder does not automatic v. People Campbell substitution. 28 Ill. 328 N.E.2d propriety position since the questionable authority is for defendant’s 5(a) was section motion automatically granting the second 114— “amended” denying in the properly trial acted discussed. The court motion. trial errors. allegedly prejudicial
Mr. puts Davis forth various Terry strike decision to Defendant’s that the trial court’s contention office nature of Gordon’s testimony concerning Townsend’s office, no into the people fail. went area was error must Even other is clothes an invitee prejudice authority since the which occurred (Schneller.) Gordon stated given. coterminous with invitation area; in to be his office had no general public defendant and the (without in area may have been the fact that others at different times authority) help does not defendant’s cause. in abused its discretion
Defendant the trial court also contends however, find, no a continuance. We refusing request defendant’s addition, refusing abuse the court did not err occurred. record, including in the proof
offer of as to his alcoholism. The evidence (especially pawning description own of events mental states of typewriter) possessed shows that he alcoholism, itself, knowledge by does not and intent. Proof of chronic criminal exempt liability. a defendant
Finally, argues allowing copy defendant a certified court erred a a prior conviction into evidence which contained not evidence of conviction, theft upon but also indictments which defendant Defendant, prior two acquitted. during testimony, admitted convictions, and a theft stated one such conviction charges upon conviction had been of criminal “thrown out.” The inclusion and error. surplusage, defendant was not convicted was irrelevant (People Spenard v. 856.) is an This App. 3d example not be sanctioned prosecutorial overkill which cannot and will by this with prosecution impeach court. When the wishes to v. People Montgomery prior (otherwise conviction under admissible method progeny), proper 47 Ill. 2d its proof copy a certified of the record of conviction introduction of room, jury only; way, jury in this the exhibit to the jury should the take subject will not as existed here. to irrelevant evidence As Supreme our Illinois has held: Court this holding
“It has been the consistent
court
the defendant’s
prior
impeach
conviction
crime to
infamous
an authenticated
credibility
shall be
record of conviction or
McCrimmon,
Flynn, v.
40, 45;
copy.
37 Ill. 2d
prejudice
Ill.
is the
to
The basis for
rule
prior
compelled
testify
before
defendant who
Kosearas,
Flynn
121;
Ill.
181.”
convictions.
at
*8
People v. Bey (1969),
2d 139, 146-47,
However, as in defendant has waived the issue before trial, objections admissibility this court. At to the the defense counsel’s of containing prior exhibits address the convictions did not surplusage; complain inclusion of the defendant cannot now be to heard addition, In of this the arrests in the surplusage error. irrelevant and explained adequately by exhibits were and nullified defendant’s own testimony Thus unpreserved which stood uncontradicted. the error Bey; v. Nastasio at Ill. became harmless best. 2d N.E.2d 144. conclusion, his was argues
And defendant sentence excessive. He had prior burglary parole charge two convictions. His on later was the addition, revoked. AWOL an program was from alcoholism attending he was fulfill an driving order to 11-month sentence while Under intoxicated. the facts of this case —and in the context of prior do of 6 record —we not feel that the sentence to 20 2/3 years is excessive. Defendant’s and conviction sentence are affirmed.
Affirmed.
LEWIS, J., concurs. REARDON,
Mr. PRESIDING
dissenting:
JUSTICE
case,
concerned,
At best
insofar as the charge
burglary
of
is a
skimpy,
circumstantial
one. There is
direct
placing
no
evidence
premises
in the
typewriter
wherein the stolen
located.
was
majority is
content with the
of the
intent
to commit
burglary
crime of
by the evidence
establishing
possession
of
in the defendant
sometime after
of the crime.
commission
does,
and unexplained
proceeds
Exclusive
possession
burglary
of the
of a
course,
give rise
an
guilt
something,
to
inference of
is it
or some
possession
other
crime? Where
that
explained
stretching
uncontradicted
statement of defendant
it is
inordinate
out to
People Umphers
within
degree
bring
it
teaching
to
Brandy Ill. App.
Umphers
Brandy
the scene possession proceeds crimes and the was accompanied by other factors. there was no incriminating Here attempt flee.
Furthermore, that “It is well that when a majority indicated settled crime, justify participation defendant elects to at or near the of a scene denying participation, story judged while he must tell a reasonable or be improbabilities.” Surely say its cannot the defendant be understood near he was at or the scene of the crime justifying participation explaining possession denying The defendant participation. while course, could believe recently jury, stolen State’s *9 to prop support his his story, disbelieve but to use denial carrying guilt beyond a reasonable doubt duty prove far. things too conviction, of a receipt copy prior of a
The into evidence certified upon which defendant containing evidence of indictments majority concedes acquitted, egregious error of a most nature. example “an and will not prosecutorial
to be overkill cannot alas, was, by majority sanctioned this court.” This conclusion of the the so- long by one of It was standing. followed determination surplusage adequately called “irrelevant and arrests the exhibits were which stood explained testimony nullified own majority uncontradicted.” This is indeed remarkable. believes record, explains upon testimony past defendant and relies when any credibility but denies when he his conduct in this case. explains event, receipt serve into evidence these documents could and, prejudice my against judgment, constitutes which, though reversible error even reached preserved, should be reasons, application of the doctrine of error. For I plain these dissent. ILLINOIS, Plaintiff-Appellee,
THE PEOPLE THE STATE OF OF HERAL, Defendant-Appellant. CARRIE JEAN 76-283 Second District No. 16, 1977.
Opinion filed November