People v. Figgers

• Decision Date: 23 January 1962
• Docket Number: No. 35801,35801
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. William FIGGERS, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 626

179 N.E.2d 626

23 Ill.2d 516

The PEOPLE of the State of Illinois, Defendant in Error, v. William FIGGERS, Plaintiff in Error.

No. 35801.

Supreme Court of Illinois.

Jan. 23, 1962.

Mitchell H. Caplan, Chicago, Lawrence G. Fretzin and Morton Rosengarden, Chicago, of counsel, for plaintiff in error.

William G. Clark, Atty. Gen., and Daniel P. Ward, State's Attorney, Chicago, Fred G. Leach, Asst. Atty. Gen., and John T. Gallagher and Rudolph L. Janega, Assistant State's Attorneys, Chicago, of counsel, for defendant in error.

DAILY, Justice.

Defendant, William Figgers, was convicted of the crime of burglary after a bench trial in the criminal court of Cook County and sentenced to the penitentiary for a term of four to twelve years. He prosecutes this writ of error for review.

The indictment returned in the case charged defendant with breaking and entering the 'factory-office' of the Western Medical Corporation with intent to steal its property, and further alleged that he had then and there stolen $3 in cash and $8 in stamps, the property of said Western Medical Corporation. Evidence adduced at the trial established that Western Medical owned and occupied the building entered, but showed also that the building was in part occupied by Xttrium Corporation, a tenant of Western Medical, and that the stamps and money referred to in the indictment were the property of Xttrium. Further proof, however, disclosed that Xttrium was a subsidiary of Western Medical, that the physical offices of the two corporations were on the same floor and only partially separated by a partition, that defendant was observed by a Western Medical watchman as he rifled some twenty lockers on the common office floor, and that he was apprehended by police on still another floor of the Western Medical building.

Based upon the state of the record, defendant, who argues as if he had been convicted of larceny, as well as burglary, contends (1) that there is a fatal variance between the proof and allegations of the indictment as to the ownership of the property stolen; and (2) that the prosecution failed to prove an intent to steal from Western Medical as alleged in the indictment.

It is well settled that a variance, to vitiate a trial, msut be material and be of such character as may mislead the accused in making his defense or expose him to double jeopardy. (Clark v. People, 224 Ill. 554, 79 N.E. 941; People v. Jennings, 298 Ill. 286, 131 N.E. 616; People v. Thomas, 20 Ill.2d 603, 170 N.E.2d 543.) .also of importance here is the general rule that immaterial matters, or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments, may be regarded as surplusage. (People v. Osborne, 278 Ill. 104, 115 N.E. 890; People v. Moore, 368 Ill. 455, 14 N.E.2d 494.) Accordingly, where an indictment charges all of the elements essential to an offense under a statute, other matters unnecessarily added may be rejected as surplusage. (People v. Rogers, 303 Ill. 578, 136 N.E. 470; People v. Keene, 391 Ill. 305, 63 N.E.2d 509.) When these principles are applied here, particularly in light of the circumstance that defendant was found guilty only of burglary, it is our opinion there was not the material and fatal variance for which defendant is contending.

Burglary consists of entering, with or without force, any dwelling, or other building with intent to commit a felony or larceny. (Ill.Rev.Stat.1959, chap. 38, par. 84; People v. Maffioli, 406 Ill. 315, 94 N.E.2d 191; 6 I.L.P., Burglary, sec. 2.) The crime is complete upon the breaking and entering with intent to steal, and it is not essential to allege or prove that anything was taken. (People v. Iannacco, 11 Ill.2d 55, 142 N.E.2d 8; People v. Hoffman, 381 Ill. 460, 45 N.E.2d...