People v. Davis

• Decision Date: 18 November 1977
• Docket Number: No. 13978,13978
• Citation: 12 Ill.Dec. 362,54 Ill.App.3d 517,369 N.E.2d 1376
• Parties: , 12 Ill.Dec. 362 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mack Arthur DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1376

369 N.E.2d 1376

54 Ill.App.3d 517, 12 Ill.Dec. 362

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mack Arthur DAVIS, Defendant-Appellant.

No. 13978.

Appellate Court of Illinois, Fourth District.

Nov. 18, 1977.

Richard J. Wilson, Deputy Appellate Defender, Springfield, for defendant-appellant.

James R. Burgess, Jr., State's Atty., Urbana, Robert C. Perry, Principal Atty., Ill. State's Atty's Assn., Statewide Appellate Assistance Service, Jeffrey B. Levens, Staff Atty., Springfield, for plaintiff-appellee.

MILLS, Justice:

"We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."

Mr. Justice Holmes in Roschen v. Ward (1929), 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722.

The central issue to this appeal: what constitutes burglary in Illinois?

But first, some facts.

An information against Mr. Davis was filed charging him with the burglary of Consolidated Construction Co. in Champaign in that he knowingly and without authority "enter(ed) into part of" the building where its offices were located with the intent to commit a theft. At trial, Willie Gordon, Jr., owner and operator of Consolidated, stated that during the afternoon of May 4, 1976, he typed an estimate for a customer and left his offices at 3:20 p. m. to deliver it. The building had only one public entrance and he locked it when he left. He returned to his office at 4:05 p. m. and found the door open and his typewriter missing. Gordon left the building and, in a store two doors down, found John Lee Johnson. Johnson, who used part of the building for the Community Action Depot, was asked by Gordon if he took the typewriter. Johnson told Gordon he had unlocked the outside door about 3:55 p. m. and had left the building about ten minutes before Gordon's return. Gordon returned to the office, called the police and then went out to where 5 or 6 people were standing behind a nearby store. Gordon asked if any of them had seen anyone go into the office and get the typewriter or if any of them had taken it. Defendant was the only one of the group who replied, stating he "didn't know anything about the typewriter," and that he had not seen anyone go into the office and take the typewriter. Neither defendant nor the general public had authority to be in Consolidated's office or to take the typewriter.

Owen Fabert owns Trader's World Pawn Shop. About 4 p. m. on May 4, 1976, Fabert purchased a typewriter from defendant for $25. Defendant Davis' signature appeared on the bill of sale. Defendant was alone, didn't bargain over a price (Davis suggested $25) and the transaction took a very short time. Trader's World is two blocks from Consolidated's office. The typewriter was Consolidated's.

Defendant testified that he had been convicted of burglary in 1968 and 1972. He had been drinking alcohol all day on May 4 and about 4 p. m. he was near the train station when a man his height wearing sunglasses asked him to take a typewriter to a pawn shop. Of the $25 the man wanted for the typewriter, he would give defendant $7. Defendant made the transaction, received the $7 and purchased some whiskey. Defendant didn't know who the man was. Defendant stated he was never in Consolidated's office. Certified copies of defendant's prior convictions were admitted.

The floorplan of the building is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The connecting doorway to the area occupied by Consolidated Construction is somewhere between 5 and 15 feet wide. There is no door. Johnson and Terry Townsend, both of whom work in the front part of the building, have free access to Gordon's office. Gordon has seen members of the public come into the front part of the building. He never saw defendant with the typewriter. The front door showed no signs of forced entry.

Davis was found guilty by the jury and was sentenced to 6 2/3 to 20 years' imprisonment. He first argues that the evidence adduced was insufficient to prove his entry into the building, his lack of authority, or his intent to commit theft. He also contends that his explanation of the day's events denying guilt even if incredible, can't be used as an admission of guilt.

However, both parties argue positions based on what they think burglary means as distinguished from what the statute states and comprehends.

At common law, burglary was a crime against habitation. [People v. Powell (1972], 9 Ill.App.3d 54, 291 N.E.2d 669.] As described by the Committee Comments to our Criminal Code, the elements of burglary were "the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein." The rather strict interpretation by those courts of the individual elements resulted not only from normal rules of penal construction, but also from the terminal sentence waiting for those convicted (see, e. g., State v. Wilson (1793), 1 N.J.L. (Coxe) 439). Illinois' legislature has shaped what is now called "burglary" into a form unrecognizable to our common law ancestors. Gone is the element of "breaking", from which word such fine distinctions sprang. Gone too are the elements of "nighttime" and "dwelling house"; burglary is now a 24-hour crime which may be practiced upon a number of designated man-made cubicles. Section 19-1(a) of the Criminal Code now states:

"A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code." (Ill.Rev.Stat.1975, ch. 38, par. 19-1(a).)

The essence of the crime is entry into the designated areas with the requisite intent (see People v. Urbana (1959), 18 Ill.2d 81, 163 N.E.2d 511; People v. Rossi (1969), 112 Ill.App.2d 208, 250 N.E.2d 528). Naturally, the State has the burden of proving the necessary intent at the time entry was made (Rossi ). Where a window has been broken or a door jimmied, intent is easily shown. However, since no breaking is now required, proof of an unforced entry by a person when there are no eyewitnesses can only be accomplished by circumstantial evidence and inferences drawn therefrom.

In this particular situation, clarity demands a discussion of what is not material to decide defendant's reasonable doubt issue. The use of force in entry has not been a necessary element of burglary in Illinois for some time (see People v. Brown (1947), 397 Ill. 529, 74 N.E.2d 706). The "close" broken in the instant case was not the front door of the building; the "entry" occurred by passing through the doorway inside the building into Gordon's office area. Historically, Illinois courts have recognized that entry into certain separate areas of a building with the requisite intent could support a burglary charge (see Kincaid v. People (1891), 139 Ill. 213, 28 N.E. 1060). The statute implements this logic by providing entry into certain structures "or any part thereof" as an element of burglary. The charge and the State's arguments at trial in this case were directed to proof of burglary into a part of the building, namely Gordon's office area. Any discussion by the State or the defense regarding the front door is therefore immaterial to proof of burglary. The fact that Johnson left the door open merely provided a means of quicker entry to the front portion of the building.

The fact that the doorway contained no door is likewise immaterial. At common law, the burglary of any interior chamber had to be pursuant to some "breaking" thereof (State v. Wilson ), directly requiring the existence of an interior barrier such as a hotel room door (see People v. Carr (1912), 255 Ill. 203, 99 N.E. 357). Some recent authority indicates the requirement of an interior barrier (State v. Oretega (1974), 86 N.M. 350, 524 P.2d 522). However, the Illinois Supreme Court in People v. Blair (1972), 52 Ill.2d 371, 288 N.E.2d 443, found a car wash with an open entry and exit-way to be a "building" susceptible of being entered under the burglary statute. In People v. Shannon (1975), 28 Ill.App.3d 873, 329 N.E.2d 399, the court had no trouble finding an entry had occurred when defendant went through an open loading door. The key to the crime is entry into the prohibited space, not whether entry was made by turning a handle, cracking a lock, or walking through an open portal. In light of Blair and Shannon, logic demands that entry into a "part" of a building through an open doorway with the requisite intent is a prohibited act under our burglary statute.

" Authority" is likewise of little concern here for three reasons. First, Gordon testified that Davis and others had no authority to be in his office. No evidence before the jury or in any offers of proof showed that Johnson or Townsend had permission to allow others to use the office. Defendant's use of the public place rule to argue authority is inapposite. The rule states 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. (People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245, cert. denied, 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 746 (laundromat); see People v. Schneller (1966), 69 Ill.App.2d 50, 216 N.E.2d 510 (museum); and People v. Wilson (1967), 84 Ill.App.2d 215, 228 N.E.2d 585 (grocery store).) Only the front part of the building was shown to be public in nature. Since the question revolves around intent upon entering the back section of the building, the rule does not apply. Even if the office area were public in nature, the entry which resulted in the typewriter being...