People ex rel. McLain v. Housewright

Decision Date13 February 1973
Docket NumberNo. 72--154,72--154
Citation9 Ill.App.3d 803,293 N.E.2d 911
PartiesPEOPLE ex rel. Terry Lee McLAIN, Appellant, v. Vernon G. HOUSEWRIGHT, Warden, Illinois State Penitentiary, Vienna, Illinois, and Peter B. Bensigner, Director, Department of Corrections, Appellees.
CourtUnited States Appellate Court of Illinois

John F. McNichols, Dist. Defender, Illinois Defender Project, Springfield for appellant.

Stanton Dotson, State's Atty., Coles County, Charleston, J. Lewis Wingate, Johnson County State's Atty., Vienna, for appellees.

CREBS, Justice.

In the Circuit Court of Coles County, Petitioner, Terry Lee McLain, pleaded guilty to an indictment charging burglary and was sentenced to the penitentiary for a term of not less than two nor more than ten years. This appeal is from an order of the Circuit Court of Johnson County denying a petition for a writ of habeas corpus challenging the jurisdiction of the trial court on the grounds that the indictment did not charge a public offense.

The statute (Ill.Rev.Stat.1969, ch. 388 sec. 19--1(a)) provides:

'A person commits burglary when without authority he knowingly enters or without authority remains within a building * * * with intent to commit therein a felony or theft * * *.'

The indictment read in pertinent part as follows:

'* * * that TERRY LEE McLAIN * * * did then and there knowingly enter a certain building, namely, the store building of Wilb Walker's Supermarket located at 2014 Western Avenue, in the City of Mattoon, County and State aforesaid, owned and occupied by Wilb Walker's Supermarket, Inc., a corporation, d/b/a Wilb Walker's with intent to commit therein theft in violation of the Illinois Revised Statutes (1969), Chapter 38, Section 19--1 * * *.'

Petition contends that one of the essential elements of the crime of burglary is that the entry be made 'without authority'; that the indictment to which he pleaded guilty did not include this statutory requirement, and, therefore, did not charge a public offense and was void. In effect, he concedes that he entered the supermarket with intent to commit a theft but argues that because his authority to enter the building was not negatived by the indictment no crime was charged and his plea was ineffective. Though not specifically stated, the argument rests on the theory that the crime of burglary cannot be charged or even committed in a public building because authority to enter is available to everyone upon the implied invitation of the owner.

We cannot agree with this argument. It has been firmly established in Illinois that a public place can be the subject of a burglary. In People v. Weaver, 41 Ill.2d 434, 243 N.E.2d 245, the court recognized that the burglary statute requires an unauthorized entry and that a criminal intent formulated after a lawful entry will not satisfy the statute. However, the court found specifically that authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open, and that an entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat. In People v. Schneller, 69 Ill.App.2d 50, 216 N.E.2d 510, the court held that entry to a museum with intent to commit a theft was without authority, stating that the authority of one who accepts a public invitation to enter is necessarily coincident with the terms of the offer, and it would be contrary to reason and ordinary human understanding to deduce that the welcom extended under such circumstances includes authority to enter for any different purpose, especially one which is unlawful or criminal.

In view of the fact that the building alleged to have been burglarized in the case before us was a supermarket open to the public, it necessarily follows that entry...

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13 cases
  • United States v. Glispie
    • United States
    • Illinois Supreme Court
    • September 24, 2020
    ...conviction for entering a private office within a public facility with the intent to commit theft); People ex rel. McLain v. Housewright , 9 Ill. App. 3d 803, 806, 293 N.E.2d 911 (1973) ("[I]t would be contrary to reason and ordinary human understanding to deduce that the business invitatio......
  • People v. Bailey
    • United States
    • United States Appellate Court of Illinois
    • September 8, 1989
    ...517, 12 Ill.Dec. 362, 369 N.E.2d 1376; People v. Woolsey (1975), 24 Ill.App.3d 1079, 322 N.E.2d 614; People ex rel. McLain v. Housewright (1973), 9 Ill.App.3d 803, 293 N.E.2d 911.) An entry into such a building with intent to commit a theft cannot be said to be within the authority granted ......
  • S.R.H., In re
    • United States
    • Illinois Supreme Court
    • April 22, 1983
    ...without prejudice to the defendant because everybody knows lack of authority is an element of burglary. (People ex rel. McLain v. Housewright (1973), 9 Ill.App.3d 803, 293 N.E.2d 911; see People v. Pettus (1980), 84 Ill.App.3d 390, 393-94, 39 Ill.Dec. 736, 405 N.E.2d 489 (dictum); In re Whi......
  • People v. Durham
    • United States
    • United States Appellate Court of Illinois
    • November 19, 1993
    ... ... Stager (1988), 168 Ill.App.3d 457, 119 Ill.Dec. 150, 522 N.E.2d 812; People ex rel. McLain v. Housewright (1973), 9 Ill.App.3d 803, 293 N.E.2d 911); [252 Ill.App.3d 92] car wash ... ...
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