People v. Foster

• Court: Illinois Supreme Court
• Writing for the Court: SOLFISBURG
• Citation: People v. Foster, 195 N.E.2d 700, 30 Ill.2d 106 (Ill. 1964)
• Decision Date: 22 January 1964
• Docket Number: No. 37385,37385
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Percy Lee FOSTER, Plaintiff in Error.

Page 700

195 N.E.2d 700

30 Ill.2d 106

The PEOPLE of the State of Illinois, Defendant in Error, v. Percy Lee FOSTER, Plaintiff in Error.

No. 37385.

Supreme Court of Illinois.

Jan. 22, 1964.

Howard Harris, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Elmer C. Kissane and William J. Martin, Asst. State's Attys., of counsel), for defendant in error.

SOLFISBURG, Justice.

The defendant, Percy Lee Foster, and two others were indicted for the crime of burglary in Cook County. They waived their right to trial by jury and were found guilty by the court. Foster was sentenced to the penitentiary for a term of not less than one nor more than three years and we have issued a writ of error to review the judgment of conviction as to Foster alone.

The defendant makes no claim that the evidence was insufficient to establish his guilt and a detailed summary of the evidence is therefore unnecessary. The indictment charged that the defendant and his co-defendants broke into and entered the dwelling house of Wilse Nickerson with the intent to steal certain personal property of Nickerson. Nickerson testified that he lived in the downstairs apartment at 8337 Maryland Street in Chicago. The apartment had a full basement where Nickerson stored some of his property. He testified that when he made an inspection of the basement he found that two radios and a paint compressor were missing. Another witness testified that he saw the defendant and two companions carrying some articles from the basement. The defendant contends that the proof showed that Nickerson was a tenant in the building, rather than the owner, and argues that the evidence was insufficient to establish the ownership of the building. The contention cannot be sustained. In burglary prosecutions, proof of lawful occupancy and possession is sufficient and it is unnecessary to either allege or prove the legal ownership of the property. (People v. Stewart, 23 Ill.2d 161, 168, 177 N.E.2d 237.) The allegation that the dwelling house was the property of Nickerson and the proof that Nickerson was a tenant in the building and that he rightfully used the basement for the storage of his property were sufficient.

The defendant contends that the indictment is not sufficient to enable him to plead former conviction in bar of another prosecution for the same offense. He argues that the tenant of the upstairs apartment might also have stored some property in the basement and that he could be indicted for the burglary of that tenant's dwelling house with intent to steal that person's property. A similar contention was advanced in People v. Johnson, 20 Ill.2d 336, 169 N.E.2d 776. In that case the indictment charged that the defendant entered the dwelling of Charles Dennis with intent to steal his property. The...