People v. Viar

• Court: Appellate Court of Illinois
• Writing for the Court: SMITH; CRAVEN and TRAPP
• Citation: People v. Viar, 268 N.E.2d 872, 131 Ill.App.2d 983 (Ill. App. 1971)
• Decision Date: 16 April 1971
• Docket Number: Gen. No. 11325
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin VIAR, Defendant-Appellant.

Page 872

268 N.E.2d 872

131 Ill.App.2d 983

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin VIAR, Defendant-Appellant.

Gen. No. 11325.

Appellate Court of Illinois, Fourth District.

April 16, 1971.

Morton Zwick, Executive Director, Ill. Defender Project, Chicago, for defendant-appellant.

Robert Bier, State's Atty., Quincy, for plaintiff-appellee; Matthew A. Hutmacher, Quincy, of counsel.

SMITH, Presiding Justice.

The defendant pleaded guilty to burglary and was sentenced to the penitentiary for a period of not less than two nor more than ten years. He now asserts that the information failed to allege the ownership of the burglarized property in a specific entity and it is therefore void. It follows, he says, that information being void, the court was without jurisdiction and the judgment should be reversed and the defendant discharged.

The abstract of the record contains only the information which so far as it is relevant charges that the defendant committed the offense of burglary in that he 'without authority, knowingly entered into a building of Quincy Council of Churches doing business as Last Chapter Coffee House, with intent to commit therein a theft, in violation of Criminal Code of 1961, Section 16--1'. At the time that the original brief of the defendant and the answering brief of the State's Attorney were filed, People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 263 N.E.2d 27, was not published. It was however cited to us in the reply brief of the defendant.

It was the majority view in Brantley that there was no allegation of ownership of the dwelling burglarized nor a description of any property taken and that the indictment was thus fatally defective. Brantley was a habeas corpus proceeding and it is patent that it can apply only to an indictment or information which completely fails to charge an offense sufficient to confer jurisdiction on the court. Two judges dissented and agreed that the indictment describes the victim H. H. Barker as an owner but does not specify what he owns. The dissenting judges would hold the indictment sufficient citing People v. Grigsby, 357 Ill. 141, 191 N.E. 264.

Irrespective of whether one takes the view of the majority or the view of the dissenting judges in Brantley, it has no application to the sufficiency of the information we consider. The majority opinion is based on the proposition that an allegation of ownership is jurisdictional and the failure to allege any ownership in the property is fatal. The dissenting opinion takes the view that such an interpretation is entirely too technical and that an allegation of ownership is not necessary. Either point of view does not apply to the information here. Here there was an allegation of ownership in 'Quincy Council of Churches doing business as Last Chapter Coffee House'. This, the defendant asserts may be one person, a partnership, a corporation, or an unincorporated association. We do not regard it as even debatable but that this is an allegation of ownership or possession with a want of specificity as to the precise legal entity in which ownership or occupancy reposes. In short, this information does not fail to allege ownership or occupancy, but if it may be deemed to be faulty at all, it is that it is an allegation of ownership imprecisely stated and if it is an allegation of ownership imprecisely stated, it is not void and the court had jurisdiction.

We would first observe that under Ill.Rev.Stat.1969, ch. 38, § 19--1, '(a) A person commits burglary when without authority he knowingly enters * * * a building * * * with intent to commit therein a felony or theft'. The statute defining burglary requires no allegation of ownership. The extent to which there is any requirement rests in court decisions and is designed (a) to enable the accused to prepare for trial, (b) to plead former acquittal or conviction under the...