{
  "id": 2553954,
  "name": "People of the State of Illinois, Plaintiff-Appellee, v. Homer Borden, Jr., Defendant-Appellant",
  "name_abbreviation": "People v. Borden",
  "decision_date": "1967-06-26",
  "docket_number": "Gen. No. 50,869",
  "first_page": "442",
  "last_page": "444",
  "citations": [
    {
      "type": "official",
      "cite": "84 Ill. App. 2d 442"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "224 NE2d 817",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1967,
      "opinion_index": 0
    },
    {
      "cite": "37 Ill2d 103",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2866092
      ],
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/37/0103-01"
      ]
    },
    {
      "cite": "31 NE2d 795",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1941,
      "opinion_index": 0
    },
    {
      "cite": "375 Ill 330",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2535869
      ],
      "year": 1941,
      "opinion_index": 0,
      "case_paths": [
        "/ill/375/0330-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T19:36:35.235024+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "People of the State of Illinois, Plaintiff-Appellee, v. Homer Borden, Jr., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE ADESKO\ndelivered the opinion of the court.\nDefendant was indicted for burglary. He was found guilty in a bench trial and sentenced to the Illinois State\nPenitentiary for a period of one to five years. On appeal defendant contends that the proof was insufficient to establish the element of entry into the premises involved.\nAn ADT alarm was set off when the front window of a men\u2019s clothing store was cracked and the sliding gates protecting the window were bent. Police arriving at the premises apprehended the defendant as he emerged from the basement of the store. His clothes had coal dust on them and his hat was covered with fresh particles of plaster. Upon investigation, a poker with plaster on its tip was found near a filled coal bin.\nSomeone had been attempting to break through the ceiling of the basement into the store on the first floor.\nDefendant\u2019s explanation of his presence at the scene was that he had been drinking and when he stepped into the doorway, fell down the stairs into the basement. He offered no explanation for the coal dust or plaster on his clothes.\nThe evidence disclosed that no entry into the store was accomplished through the front window. Nothing in the store had been touched. There was no direct entry from the basement to the first floor, and the attempt to break through the floor was also unsuccessful.\nThe essence of the crime of burglary is the entry into a building with the intent to commit a felony or theft. (Ill Rev Stats 1963, c 38, \u00a719-1.) Defendant argues that the evidence clearly shows that there was no entry into the store as charged in the indictment. \u201cThe testimony at most,\u201d asserts defendant, \u201cdemonstrates that a person attempted to make entry into the store.\u201d With this statement we are in complete agreement.\nWhere the offense charged in an indictment includes within it another offense of lower degree, the defendant may be convicted of the lower offense even though the evidence fails as to the offense of higher degree. People v. Lewis, 375 Ill 330, 31 NE2d 795 (1941). The Criminal Code specifically provides that \u201c \u2018Included offense\u2019 means an offense which (b) Consists of an attempt to commit the offense charged or an offense included therein.\u201d (Ill Rev Stats 1963, c 38, \u00a7 2-9.)\nIn accordance with the power vested in this court by section 121-9 (b) (3) of the Criminal Code (Ill Rev Stats 1965, c 38, \u00a7 121-9 (b) (3)), we reduce the degree of the offense to \u201cAttempted Burglary,\u201d a crime of which the evidence clearly shows the defendant guilty. The sentence imposed by the Criminal Division of the Circuit Court of Cook County is vacated and the cause remanded for resentencing. People v. Kurtz, 37 Ill2d 103, 224 NE2d 817 (1967).\nJudgment modified and cause remanded for resentencing.\nMURPHY, P. J. and BURMAN, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE ADESKO"
      }
    ],
    "attorneys": [
      "Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.",
      "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State\u2019s Attorneys, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Homer Borden, Jr., Defendant-Appellant.\nGen. No. 50,869.\nFirst District, First Division.\nJune 26, 1967.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State\u2019s Attorneys, of counsel), for appellee."
  },
  "file_name": "0442-01",
  "first_page_order": 448,
  "last_page_order": 450
}