People v. Adams

• Decision Date: 01 November 1972
• Docket Number: No. 11541,11541
• Citation: 289 N.E.2d 53,8 Ill.App.3d 62
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles R. ADAMS et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 53

289 N.E.2d 53

8 Ill.App.3d 62

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles R. ADAMS et al., Defendants-Appellants.

No. 11541.

Appellate Court of Illinois, Fourth District.

Nov. 1, 1972.

James R. Streicker, Staff Atty., Illinois Defender Project, Chicago, for defendants-appellants.

Richard A. Hollis, State's Atty., Springfield, D. Bradley Blodgett, First Asst. State's Atty., of counsel, for plaintiff-appellee.

SIMKINS, Justice.

The defendants-appellants Devid Adams, Charles Adams and Sandra Kemp were jointly indicted for the crime of burglary. On July 22, 1970, the jury returned verdicts of guilty as to all three of the defendants. David Adams was sentenced for an indeterminate term of 5 to 10 years to run consecutively with a 1 to 5 sentence for burglary previously imposed on Winnebago County, and which he was serving at the time of the imposition of the instant sentence. The defendants Charles Adams and Sandra Kemp were placed on probation for a period of 3 years. All defendants appeal.

At approximately 1:55 A.M., on March 16, 1970, Officer Harry Stoutamyer, of the Springfield Police Department, observed a white Pontiac in the parking lot of the Avenue Food Shop. The car was parked, the lights were off and the motor not running. The Avenue Food Shop was closed as were all other stores in the area. Stoutamyer noticed three persons inside the car who dropped down apparently to avoid being seen. The car was parked less than 50 yards from the rest room window of Jack Harman's Service Station which was also closed. Stoutamyer approached the car and questioned the defendants, Charles Adams and Sandra Kemp, as well as the third occupant, who was a juvenile. Defendant David Adams was not present. The defendant Charles Adams could not account for the ownership of the automobile and Stoutamyer escorted them to the police station, intending to issue a citation for the use of fictitious license plates. Sometime later the defendant, David Adams, came into the police station and inquired about Charles, who is his brother. Stoutamyer testified that David stated that he was on his way to Dino's Lounge when he saw his car, driven by Charles, being escorted by police officers, and that he (David) had arrived at the police station in a taxicab which he took from Dino's Lounge. Stoutamyer also observed that David Adams' pockets were bulging with change and this was noticed when Adams made some change for another officer at the station house. A check was made with the cab company and Stoutamyer then ascertained that David Adams had been picked up, not at Dino's Lounge, but at a location about a block and a half from the service station. The cab driver Shaw came to the station and identified David Adams. During David Adams presence in the police station, the fact that Jack Harman's Service Station had been burglarized became known to Stoutamyer and, being possesed of the information above recited, he placed the three defendants under arrest.

Officers Barnett and Lamkin testified that they discovered the burglary of the Service Station, that a window ledge had been pried and glass broken out of a rest room window. On the floor inside the service station was a broken cashew nut machine. Barnett also found part of a broken button on the window ledge. Jack Harman, the owner of the Service Station, testified that $271.30 was taken in the burglary and that David Adams was a former employee. At this juncture, defendant David Adams moved to suppress the introduction of physical evidence, consisting of defendant's trousers, a pair of shoes and also objected to fingerprint evidence. The basis of the objection was that the physical items were seized by the police at the police station following an illegal arrest. The objection was overruled and the evidence admitted.

Two F.B.I. agents then testified, over defendant David Adams' objection. In the left rear pocket of the trousers sent to the Bureau for examination, was a fragment of a button to which was attached some fragments of thread. The button fragment found in the left rear pocket of the trousers was a part of the button fragment found on the window ledge of the Service Station. The agents also testified that the partial button found on the window ledge had blue fibers attached to it which matched the fibers in David Adams' trousers. The agents also testified that fingerprints found on the broken cashew machine were those of David Adams.

There are four assignments of error to be considered.

1) Was the indictment fatally defective because it failed to allege ownership of the premises which were burglarized? The indictment charged:

'Charles R. Adams, David L. Adams and Sandra Kemp committed the offense of burglary in that they knowingly and without authority entered into a building of Jack Harman's Standard Service, located at 926 South Grand West, with the intent to commit therein a theft.'

Prior to trial the People filed a motion to cure 'formal defects' in the indictment by striking the language 'they knowingly and without authority entered into a building of Jack Harman's Standard Service' and to substitute the following language, 'they knowingly and without authority entered into a building of Jack Harman's.' The motion was allowed without objection by the defendants, nor did defendants file a motion to quash the indictment. It is not necessary to allege ownership of the building which has been burglarized. '* * * an indictment alleging occupancy or possession of the burglarized premises in a named person is sufficient.' (People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787.) In People v. Viar, 131 Ill.App.2d 983, 268 N.E.2d 872, we held that an information which charged that the defendant '* * * without authority, knowingly entered into a building of Quincy Counsel of Churches doing business as Last Chapter Coffee House, * * *' to be an adequate allegation of the legal entity whose property was invaded. The language of the present indictment is, in form, essentially the same as that held to be sufficient in Viar and we hold it to be sufficient here. The language of the indictment prior to amendment constituted an adequate allegation and the amendment did not, therefore, remedy a substantive defect, in violation of Ill.Rev.Stat.1969, ch. 38, sec. 111--5, which permits amendments of indictments only insofar as they pertain to formal defects.

2) The defendants Charles Adams and Sandra Kemp were held accountable for burglary and theft under the provisions of Ill.Rev.Stat.1969, ch. 38, secs. 5--1, 5--2. In order to sustain a conviction under the statute the evidence must establish beyond a reasonable doubt, that Charles Adams and Sandra Kemp '(1) * * * solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offenses; (2) that this participation must have taken place either before or during the commission of the offenses; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offenses * * *'. (People v. Tillman, 130 Ill.App.2d 743, 265 N.E.2d 904.) The trial judge, in denying defendant's motion for a directed verdict at the close of the People's case, stated that at the close of all the evidence he would give serious consideration to entering a judgment notwithstanding the verdict in the event that the jury returned verdicts of guilty as to these defendants. The...