People v. Collins

• Decision Date: 06 April 1970
• Docket Number: 54001,Gen. Nos. 53983
• Citation: 123 Ill.App.2d 138,260 N.E.2d 30
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie COLLINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 30

260 N.E.2d 30

123 Ill.App.2d 138

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie COLLINS, Defendant-Appellant.

Gen. Nos. 53983, 54001.

Appellate Court of Illinois, First District, First Division.

April 6, 1970.

Edwards V. Hanrahan, State's Atty., County of Cook, Chicago, for plaintiff- appellee, Elmer C. Kissane, Asst. State's Atty., of counsel.

Gerald W. Getty, Public Defender of Cook County, Chicago, for appellant; Herbert Becker, Norman W. Fishman, James J. Doherty, Chicago, of counsel.

BURMAN, Presiding Justice.

Willie Collins and Bobbie Jones were indicted for burglary. The defendants pleaded not guilty, and after a jury trial both were found guilty as charged. They were each sentenced to a term of not less than five years nor more than twelve years in the penitentiary.

The defendants separately appealed. The two appeals arise out of the same trial, present the same questions and were consolidated for oral argument and presentation to this court. The defendants contend that (1) there was a material allegation in the indictment that the ownership of the store alleged to have been burglarized was owned by Leonard Bloom, which was not proven, and (2) the sentences imposed were too severe.

The defendants make no claim that the evidence was insufficient to establish their guilt. On April 14, 1968, at 3:30 A.M., police officers went to the premises at 4449 S. Lake Park Avenue on the information they received in an ADT burglar alarm call that a burglary was in progress. They noticed the outside gates of a grocery store had been pulled apart and the glass of the door broken. With flashlights they found the two defendants inside the premises lying prone on the floor and arrested them.

Leonard Bloom testified that he was formerly the owner of the supermarket, but it was incorporated, and at the time of the burglary he was president of the corporation. The business had been in his family for eighteen years. The sign on the store read 'Park Food Mart, Incorporated.' They had closed the business in the middle of March and were trying to sell it. In the meanwhile the inventory had been liquidated as much as possible, but between $1000 and $2000 worth of canned goods were still on the shelves on the night in question. When Bloom left the business, the doors had been locked. He was called by police on the morning in question, and when he arrived at the store he saw the two defendants who had been arrested.

The indictment charges that the two defendants committed the offense of burglary in that 'they without authority, knowingly entered into the store of Leonard Bloom, with intent to commit the crime of theft * * *.' The defendants argue that the evidence showed that the store was not owned by Mr. Bloom as charged in the indictment, but by a corporation of which he was president. It is urged that this was a material and fatal variance with respect to the ownership of the burglarized store. In support of this contention the defendants cite the cases of People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182; People v. Mosby, 25 Ill.2d 400, 185 N.E.2d 152; and People v. Jamison, 92 Ill.App.2d 28, 235 N.E.2d 849.

The facts in the case at bar and the aforementioned cases are dissimilar. In Walker, it appears that the trial was informally conducted with undue dispatch. It was alleged in the indictment that the burglarized property was the home of Anthony Wright. The only evidence bearing upon this allegation was the testimony of Mrs. Octavia S. Wright who testified that certain articles taken in the burglary belonged to her husband without naming her husband. There was no testimony that Anthony Wright's dwelling was burglarized. The cause was remanded for a new trial. In reversing the court stated:

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. 7 Ill.2d at 161, 130 N.E.2d at 184.

In Mosby none of the witnesses testified to the ownership of property in the two allegedly burglarized premises. Because of the failure to prove the essential allegations of ownership of the premises, both convictions were reversed, and the causes remanded. In Jamison, a burglary conviction was reversed and remanded because there was no evidence or mention made of two co-partners named in the indictment. There was a total lack of any evidence of who, in fact, was in possession of the premises.

In People v. Knox, 98 Ill.App.2d 270, 240 N.E.2d 426, it was also contended that there was a fatal variance in the indictment which alleged that the burglarized tavern was the premises of the H & K Realty Co., Inc., a corporation, whereas there was no evidence that the firm was acting in any capacity other than as a mere rental agent. In affirming the conviction this court held that it was sufficient that the unrefuted testimony showed the property to be under the domain of the H & K Realty Company which was...