delivered the opinion of the court.
This is аn appeal from a conviction of burglary. Defendant was tried before thе bench and was sentenced to one to three years in the penitentiary.
Jamison was indicted for burglary of “the store of Benjamin English, John Bellamy and Dennis Bell, co-partners, located at 701 South Pulaski Road, Chicago, Cook County, . . . .” During the trial Bellamy testified that he was engaged in the business of a clothing store at 701 South Pulaski and that his interest in the store was that of a partner. He did not name his copartners nor was аny evidence presented as to who were the copartners.
The only рoint raised on appeal is that the names of Bell and English were not mentionеd at the trial and, therefore, the State failed in its burden of proving beyond all reasonable doubt ownership as alleged in the indictment.
There are only two reasons for requiring the ownership of property to be stated in an indictment for burglary: (1) to show that the building allegedly broken into was not the property of the accused, inasmuch as one cannot commit burglary by breaking into one’s own building, and (2) to identify the оffense so as to protect the accused from a second prosеcution for the same offense. 13 Am Jur2d, Burglary, § 37.
The Illinois courts have carefully guarded thе accused’s right to have the above requirement filled and to have the prоof conform to the allegation. In People v. Cohen, 352 Ill 380, 382,
“It has been the settled law of this State since this court was first organized, that every material allegation in an indictment for a felony must be proved beyond a reasonable doubt before a defendant charged with such a crime can be legally convicted fоr the same.”
In People v. Mosby, 25 Ill2d 400,
“This court had consistently held that the ownership or possession of the dwelling is an essential allegation of an indictment alleging burglary, which allegation must be proved as laid in order to safeguard the accused against double jeopаrdy. (People v. Walker, 7 Ill2d 158; People v. Pernalsky, 334 Ill 38; People v. Smith, 341 Ill 649.)”
It continued on page 403:
“Essential allegations of indictments must be proved without variance. (Citing cases.) An essential element оf proof to sustain a conviction cannot be inferred but must be established. The fact that this proof might have been elicited by a single question ... is beside the point sinсe it was not done.”
In People v. Walker, 7 Ill2d 158,
“Where, as here, the charge is burglary, the ownership of the building is аn essential allegation and the proof must conform to the charge. (Peоple v. Pernalsky, 334 Ill 38; People v. Zangain, 301 Ill 299.) The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. (Aldrich v. People, 225 Ill 610; Willis v. People, 1 Scam 399.) Since the requirement is founded upon the protectiоn of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and not a mere technical rule. People v. O’Brien, 404 Ill 236; People v. Clavey, 355 Ill 358; People v. Struble, 275 Ill 162.”
In the case at bar оne copartner of a store testified as to his own membership therein. No mention was made of the other two persons named in the indictment. While it may be that thеy indeed were the true partners of Bellamy, no such proof was made and no such conclusion can be had from a total lack of evidence. The State failed to prove an essential element of the crime as chargеd and, therefore, Jamison’s conviction cannot stand.
In the following cases thе only issue considered by the court on appeal was failure of the Statе to prove ownership as alleged in the indictment: People v. O’Brien, 404 Ill 236,
Reversed and remanded.
DEMPSEY, P. J. and SCHWARTZ, J., concur.