People v. Keene

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: People v. Keene, 391 Ill. 305, 63 N.E.2d 509 (Ill. 1945)
• Decision Date: 19 November 1945
• Docket Number: No. 28643.,28643.
• Parties: PEOPLE v. KEENE.

391 Ill. 305

63 N.E.2d 509

PEOPLE

v.KEENE.

No. 28643.

Supreme Court of Illinois.

Sept. 19, 1945.

Rehearing Denied Nov. 19, 1945.

Error to Circuit Court, McLean County; Chalmer C. Taylor, judge.

James Keene pleaded guilty to an indictment charging burglary, was sentenced on his plea for an indeterminate term, and he brings error.

Judgment affirmed.

James Keene, pro se.

George F. Barrett, Atty. Gen., and Clifford N. Coolidge, State's Atty., of Bloomington, for the People.

THOMPSON, Chief Justice.

This is a writ of error sued out of this court to review a judgment of the circuit court of McLean county. Plaintiff in error appears pro se. On July 9, 1938, he entered a plea of guilty to an indictment charging him with the crime of burglary. He was sentenced on his plea for an indeterminate term, as provided by law, and he now brings his cause here on writ of error.

The alleged errors are: (1) That the court erred in adjudging plaintiff in error guilty of the crime of burglary for the reason that neither count of the indictment is sufficient to charge the crime of burglary; that the two counts of the indictment are sufficient only to charge the crime of grand larceny; (2) that the court erred in not hearing testimony necessary to enable the trial court to accurately determine and decide the issues before it; (3) that the court erred in adjudging plaintiff in error guilty of the crime of burglary instead of adjudging him guilty of the crime of grand larceny.

The indictment in this case consists of two counts, each of which charged both burglary and larceny and alleged the value of the property taken. The two counts different only in that one charged a forcible breaking and entering while the other charged a breaking and entering without force. The indictment further charged plaintiff in error with a former conviction but this is not in any way considered as the State's Attorney elected not to prosecute on the habitual criminal charge. Plaintiff in error entered a plea of guilty and the judgment of the court recites: ‘And now comes said defendant, James Keene, alias Charles W. Wagener, and says he cannot deny but that he is guilty in manner and form as in said indictment against him charged as to the crime of burglary, and after being duly admonished by the court as to the consequences thereof, persists in so doing and of this he puts himself upon the mercy of the court herein.’

Plaintiff in error admits that the language in each count is sufficient to charge him with burglary but contends that as each count is further joined with the allegations that he then and there unlawfully, feloniously and burglariously, did steal, take and carry away $1100, good and lawful money, of the value of $1100, naming the party from whom the money was taken, that such additional allegations brought the indictment under the grand larceny statute and that the sum of money so alleged brings this allegation under the penalty provided for grand larceny. Plaintiff in error makes the specific charge that neither count of the indictment is sufficient to charge the plaintiff in error with the crime of burglary and that the indictment is sufficient only to charge the crime of grand larceny. With this we cannot agree. To hold the indictment defective would announce a rule that the crimes of burglary and larceny, arising out of a single transaction, cannot be charged in a single count. This would be contrary to the previous holdings of this court. We have repeatedly held that counts for burglary and larceny may be joined in the same indictment and that these two offenses may be joined in the same count. People v. Goodwin, 263 Ill. 99, 104 N.E. 1018;Lyons v. People, 68 Ill. 271;Herman v. People, 131 Ill. 594, 22 N.E. 471,9 L.R.A. 182;Love v. People, 160 Ill. 501, 43 N.E. 710,32 L.R.A. 139.

In the case of People v. Rusk, 348 Ill. 218, 180 N.E. 863, 864, this court, quoting from the case of Burke v. People, 148 Ill. 70, 35 N.E. 376; said: ‘an indictment may be so drawn as to charge sufficiently both robbery and larceny in a single count, under which a defendant may be convicted of either offense, according as it may be shown by the evidence; and description and value may be alleged and shown, which would be necessary in a charge of larceny, but would be immaterial in a charge of robbery and could be rejected as surplusage on that charge. In People v. Boer, 262 Ill. 152, 104 N.E. 162, 164, the court quoted the statement from Russell on Crimes, (volume 3, (6th Ed.) 430,) that ‘on...