People v. Mosby
| Decision Date | 28 September 1962 |
| Docket Number | No. 36339,36339 |
| Citation | 185 N.E.2d 152,25 Ill.2d 400 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. John MOSBY, Plaintiff in Error. |
| Court | Illinois Supreme Court |
Lloyd S. Kupferberg, Chicago, for plaintiff in error.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago , for defendant in error.
The defendant, John Mosby, was found guilty by a jury in the criminal court of Cook County on a charge of burglary alleged to have occurred on April 28, 1960, involving the dwelling house of David Crawford. On this charge he was sentenced to a term of five to ten years on July 21, 1960. Mosby was also found guilty by a jury on a charge of burglary allegedly occurring on March 11, 1960, involving the premises of Milton Holman. On September 20, 1960, he was sentenced to a minimum of fifteen years and a maximum of thirty years in the Illinois State Penitentiary, that sentence to commence at the conclusion of the five-to-ten-year sentence in the first case. By writ of error he asks that judgment be reversed in both cases and both causes be remanded for a new trial. By agreement, the cases have been consolidated on review.
The defendant, among other grounds, contends that both cases should be reversed and remanded because of the failure of the People to prove ownership of the premises alleged to have been burglarized. Examination of the record in the Crawford case discloses that nowhere in the testimony does the name of David Crawford appear. He did not testify. Willa Crawford testified, but she was not asked, nor did she testify, as to the name of her husband or as to the identity of the ownership of her apartmemt. In the Holman case the name of Milton Holman nowhere appears in the testimony. Mary Holman testified that she and her husband lived in an apartment leased by Inez Dore but referred to the apartment as her apartment. None of the other witnesses in either case testified as to the ownership of the allegedly burglarized premises.
This court has consistently held that the ownership or possession of the dwelling is an essential allegation of an indictment alleging burglary, which allegation must be proved as laid in order to safeguard the accused against double jeopardy. (People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182; People v. Pernalsky, 334 Ill. 38, 165 N.E. 190; People v. Smith, 341 Ill. 649, 173 N.E. 814.) It is contended on behalf of the People that in the Crawford case, because the indictment alleged an intent to steal the property in the dwelling house of David Crawford belonging to David Crawford, Willa Crawford and A. C. Parrish, because Willa Crawford testified that she lived in an apartment with her nephew, A. C. Parrish, and her husband, and that a check belonging to her and to her husband was stolen, and...
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People v. Clark
...variance and an essential element of a crime cannot be inferred but must be established with positive proof. (People v. Mosby, 25 Ill.2d 400, 403, 185 N.E.2d 152 (1962).) The variance will not, however, be considered material unless it is of such a substantial nature as to mislead the accus......
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People v. Murray
...304 (2004). An essential element of proof to sustain a conviction cannot be inferred but must be established. People v. Mosby , 25 Ill. 2d 400, 403, 185 N.E.2d 152 (1962). It is axiomatic that the State carries the burden of proving each element of a charged offense beyond a reasonable doub......
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People v. Givens
...allegation of a shooting was essential to the information. Essential allegations must be proved without variance. (People v. Mosby (1962), 25 Ill.2d 400, 185 N.E.2d 152.) In Mosby, the State failed to present proof of ownership of premises which the defendant allegedly burglarized. At that ......
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People v. Rothermel
...v. Picard (1918), 284 Ill. 588, 591, 120 N.E. 546; People v. Walker (1955), 7 Ill.2d 158, 161, 130 N.E.2d 182; People v. Mosby (1962), 25 Ill.2d 400, 185 N.E.2d 152.) The court, however, began to recognize that the requirement of ownership had become "an empty formality." (People v. Stewart......