People v. Baker
| Decision Date | 12 December 1975 |
| Docket Number | No. 74--77,74--77 |
| Citation | 338 N.E.2d 565,33 Ill.App.3d 898 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry D. BAKER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Kerry R. Cordis, Princeville, for defendant-appellant.
Michael M. Mihm, State's Atty., F. Stewart Merdian, Ill. State's Attys. Assoc., Appellate Assistance Service, Ottawa, Russell H. Boothe, Elgin, of counsel.
Defendant, Larry D. Baker, was indicted for the offense of burglary. After a bench trial before the circuit court of Peoria County, he was found guilty and sentenced to not less than one (1) nor more than three (3) years in the Illinois State Penitentiary. This appeal is from that judgment and sentence.
Two issues are raised by defendant on this appeal: 1) Whether the State proved beyond a reasonable doubt James O. Issac was in lawful possession of the building allegedly burglarized, as charged in the indictment and 2) Whether the court abused its discretion in denying defendant probation, as recommended in the presentence report, and sentencing him to a term in the penitentiary.
The defendant cites People v. Jamison, 92 Ill.App.2d 28, 235 N.E.2d 849 for the rules the People must prove every material allegation of an indictment beyond a reasonable doubt and in a burglary indictment the ownership or possessory rights infringed upon must be pleaded and proved. There is no dispute as to the requirement every material allegation of an indictment must be proved beyond a reasonable doubt, however, the requirement an indictment for burglary must identify the owner of the building concerned, if known, no longer is the law. Such requirement as set forth in People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 263 N.E.2d 27 was expressly overruled by the Illinois Supreme Court in People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483. The rule applicable to a burglary indictment is the general rule applicable to any indictment. An indictment's allegations must be set out with such specificity or particularity that the accused is informed of the offense with which he is charged and enabled to prepare his defense, and further that he is protected against being later prosecuted for the same crime. People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483. See also, People v. Pujoue, 1975, 61 Ill.2d 335, 335 N.E.2d 437.
In the instant case the indictment alleged the defendant entered a building located at 2510 W. Farmington Road, Peoria, in the lawful possession of one James O. Issac. Issac testified at the trial he operated a tavern at that location on the date in question. He stated he leased the premises from a Joseph Abraham and Michael LaHood and the business was conducted as Jim Bimbo's Inc. and he was a one-third owner. He further testified the business had only been open for nine days, the corporation was defunct, and the business folded in August, 1972. There was also evidence the names on a liquor license application for Jim Bimbo's Inc. did not include that of James O. Issac.
In light of all the facts, we...
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People v. Rothermel
...80 Ill.App.3d 242, 35 Ill.Dec. 658, 399 N.E.2d 724; People v. Viar (1971), 131 Ill.App.2d 983, 268 N.E.2d 872; People v. Baker (1975), 33 Ill.App.3d 898, 338 N.E.2d 565.) Our courts have previously held that, in lieu of proving ownership, the right to possession and occupancy in another mus......
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People v. Janisch
...80 Ill.App.3d 242, 35 Ill.Dec. 658, 399 N.E.2d 724; People v. Viar (1971), 131 Ill.App.2d 983, 268 N.E.2d 872; People v. Baker (1975), 33 Ill.App.3d 898, 338 N.E.2d 565.) Our courts have previously held that, in lieu of proving ownership, the right to possession and occupancy in another mus......
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People v. Walker
... ... The holding simply cannot be supported. It must be regarded as erroneous, and accordingly it is overruled." ... Subsequent Illinois Appellate Court cases have followed the rule announced in Gregory. (People v. Baker (1975), 33 Ill.App.3d 898, 338 N.E.2d 565; People v. Reese (1975), 29 Ill.App.3d 568, 331 N.E.2d 316; People v. Pruden (1975), 25 Ill.App.3d 47, 322 N.E.2d 501.) Consequently, we find no merit in defendant's contention that the indictment is fatally defective in its failure to allege ownership of ... ...
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People v. Gangloff
...provided by statute. As stated by this court in People v. Cather, 21 Ill.App.3d 36, 313 N.E.2d 533, and reiterated in People v. Baker, 33 Ill.App.3d 898, 338 N.E.2d 565: 'We believe it unnecessary to discuss the facts presented at the probation and sentence hearing at any length. Since Peop......