Smith v. People

• Court: Illinois Supreme Court
• Writing for the Court: SHELDON
• Citation: Smith v. People, 115 Ill. 17, 3 N.E. 733 (Ill. 1885)
• Decision Date: 14 November 1885
• Parties: SMITH v. PEOPLE.

115 Ill. 17

3 N.E. 733

SMITH

v.PEOPLE.

Supreme Court of Illinois.

Filed November 14, 1885.

Error to Cook.

J. R. Anderson, for plaintiff in error.

George Hunt, Atty. Gen., and Julius S. Grinnell, State's Atty., for the People.

SHELDON, J.

This was an indictment for burglary against George Smith, alias George Buckingham, and Thomas Dennis, upon which the latter was acquitted, and the former convicted and sentenced to the penitentiary for 15 years. The defendant convicted brings this writ of error.

The first point made by plaintiff in error is that there is a variance between the proof and indictment, in that the indictment charges the burglarious entry was into the dwelling-house of Francis Demling, while the proof shows that Demling did not own the house where he lived, but that he rented the first floor of the house, where was his room from which the property was taken, from one Groosheimer, the owner, who lived in the apartments above. In burglary the ownership may be laid in the occupant, whose possession is rightful as against the burglar. 2 Bish. Crim. Proc. § 138. The rooms rented to Demling constituted the dwelling-house of Demling in the sense of the law. Mason v. People, 26 N. Y. 200. There is nothing in this point.

It is urged next that the court below erred in allowing the witness Bannen to give in evidence the statement made to him by the co-defendant, Dennis, at a time when Smith was under arrest. The statement was clearly evidence against Dennis, and was therefore properly admitted to go to the jury on the trial of the two defendants together. It is insisted that the possession by Smith of a part of the property stolen does not afford evidence to connect him with the burglary. It is admitted that the possession of property recently stolen is prima facie evidence that the person in possession committed the larceny. But it is claimed that there is a distinction in this respect between larceny and burglary. We see no foundation for any such distinction here. The proof shows that the larceny was committed at the same time with the burglary, and that about a month afterwards Smith was found in possession of part of the articles stolen. The same person that committed the larceny no doubt committed the burglary; and whatever went to show one to be guilty of the larceny equally evidenced his guiltiness of the burglary.

The co-defendant, Dennis, offered himself as a witness in his own behalf, and testified, as to a part of the...