People v. Powell

• Court: Appellate Court of Illinois
• Writing for the Court: CRAVEN; SMITH, P. J., and TRAPP
• Citation: People v. Powell, 209 N.E.2d 345, 61 Ill.App.2d 238 (Ill. App. 1965)
• Decision Date: 20 July 1965
• Docket Number: Gen. No. 10634
• Parties: PEOPLE of the State of Illinois, Plaintiff-Defendant in Error, v. John Theodore POWELL, Defendant-Plaintiff in Error.

Page 345

209 N.E.2d 345

61 Ill.App.2d 238

PEOPLE of the State of Illinois, Plaintiff-Defendant in Error, v. John Theodore POWELL, Defendant-Plaintiff in Error.

Gen. No. 10634.

Appellate Court of Illinois, Fourth District.

July 20, 1965.

Jerald E. Jackson, Decatur, for defendant-plaintiff in error.

Basil G. Greanias, State's Atty., Decatur (Franklin E. Dove, Asst. State's Atty., of counsel), for the people.

CRAVEN, Justice.

This is an appeal from a conviction of burglary in the circuit court of Macon County. Based upon a jury verdict of guilty, the defendant, John Theodore Powell, was sentenced to a term of 5 to 20 years in the penitentiary.

The defendant alleges the following errors:

1. The indictment was defective for failure to specify the location of the offense.

2. The evidence is insufficient to establish the defendant's identity and prove felonious intent.

The facts show that on March 25, 1963, Hubert Johnson, the night watchman for Jenkins Music Co., phoned the police to report a suspected burglary. Officer Raymond King arrived on the scene shortly thereafter and together with Johnson began to search the building with flashlights. They discovered two men hiding between storage racks in the building. Both men attempted to escape. La Verne Watts was arrested in the building; the other man jumped out a window.

A short time later another officer, Harold Lindsten, apprehended the defendant in the nearby vicinity. The defendant's clothes were dirty and splattered with muddy water. The alley behind the building near the broken window was muddy.

The night watchman, Hubert Johnson, later identified the defendant at a police line-up. Johnson described the defendant to the police before the line-up as being six feet tall, no hat, with bushy hair, wearing a light tan jacket and blue denim overalls. From the testimony in the record the defendant fit this description.

The defendant testified he was with La Verne Watts from 9:00 A.M. till 8:00 P.M. the day of the crime. He stated that the car they were driving stalled and that Watts left the car to walk to the defendant's house. The defendant claimed he followed Watts about one-half block behind until he lost track of him near the scene of the crime. He testified he heard shouting and began to run until he was arrested by Officer Lindsten.

An earlier trial resulted in a hung jury. The identification by the State's witness, Hubert Johnson, was more positive at the second trial. Police Officer King stated he could not make a positive identification of the defendant as the person he confronted in the building along with La Verne Watts.

The first alleged error attacks the sufficiency of the indictment under the Illinois constitution. The pertinent part of the indictment stated:

'* * * 'unlawfully, feloniously, knowingly and without authority entered a building, then and there a building of James B. Jenkins, and G. C. Jenkins d/b/a G. C. Jenkins Co., there situate, with intent then and there therein to commit theft of divers goods and chattels then and there being in said building, being then and there the property of James B. Jenkins and G. C. Jenkins, d/b/a G. C. Jenkins Co. aforesaid.''

The applicable constitutional provision states:

'In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, * * *.' (Ill.Const., art. II, sec. 9, S.H.A.)

The defendant relies upon People v. Williams, 30 Ill.2d 125, 196 N.E.2d 483, and argues that under the above constitutional provision an indictment is fatally defective for failure to specify an exact location. In a case directly in point the First District Appellate Court distinguished the Williams case from the situation presented here.

'The Williams case, however, is distinguishable from the case at bar in that there the objection to a defective indictment was raised by a motion to quash. In the instant case there was neither a motion to quash the indictment nor a motion in arrest of judgment. The Supreme Court itself, in Williams, recognized such a distinction at page 127, 196 N.E.2d at page 484 in the following terms:

'Cases like People v. Garkus, 358, Ill. 406 [sic, 106], 192 N.E. 653, and People v. Jackson, 23 Ill.2d 475, 179 N.E.2d 9, in which the alleged defect was not raised by motion to quash or motion in arrest of judgment, or was waived by a plea of guilty, are therefore not in point.

The clear intent of this statement is to point out that while the absence of the address of a burglary is a defect for which an indictment may be quashed upon motion in the trial court, nevertheless, a failure to so move will constitute a waiver of such defect since it is not jurisdictional. People v. Jackson, 23 Ill.2d 475, 179 N.E.2d 9.

'This conclusion is further supported by the fact that neither of the two purposes specified in the Williams case for requiring the specific street address of the burglarized premises to be given in the indictment, i. e., to enable defendant to prepare his defense and to protect him from double jeopardy, are applicable here. First, the very fact that defendant did conduct his defense on the merits shows that he was fully aware of the exact nature of the charges against him. Secondly, defendant is in no danger of double jeopardy since Ida Sims testified as to the address of the burglary and it is well established that a defendant in a subsequent prosecution may introduce the record of a former prosecution or parol evidence to establish his defense of prior jeopardy. People v. Jankowski, 391 Ill. 298, 302, 63 N.E.2d 362; People v. Brady, 272 Ill. 401, 409, 112 N.E. 126; People v. Hawkinson, 324 Ill. 285, 288, 155 N.E. 318.' People v. King, 50 Ill.App.2d 421, at 429-430, 200 N.E.2d 411, at p. 415.

The Williams case does not relate to jurisdictional defects in criminal pleading; it merely states that in certain situations the information provided in the indictment may fall short of the constitutional requirement of informing the accused of the nature and cause of the accusation and is subject to challenge on that basis in a motion to quash.

'We take judicial notice of the fact that Cook County is largely a metropolitan community having an area of 954 square miles, a population in excess of 5,000,000, and containing hundreds of factory buildings. The charge that the defendants attempted to break and enter a factory building owned by Jacob Vondracek in that county without giving a street address or a more specific location in the county, does not give the defendants sufficient information to enable them to prepare their defense. The State claims that if the defendants needed the address of the building in order to prepare their defense, they should have requested a bill of particulars. A short answer to this contention is contained in People v. Flynn, 375 Ill. 366, 31 N.E.2d 591, where we held that a defective indictment...