{ "id": 3398484, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACK ARTHUR DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "1977-11-18", "docket_number": "No. 13978", "first_page": "517", "last_page": "527", "citations": [ { "type": "official", "cite": "54 Ill. App. 3d 517" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "195 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826426 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0051-01" ] }, { "cite": "246 N.E.2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "291-92" } ], "opinion_index": 0 }, { "cite": "42 Ill. 2d 139", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847545 ], "pin_cites": [ { "page": "146-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0139-01" ] }, { "cite": "408 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2644472 ], "year": 1969, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill/408/0179-01" ] }, { "cite": "8 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716297 ], "year": 1969, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0116-01" ] }, { "cite": "37 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864813 ], "year": 1969, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0040-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "361 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975443 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0892-01" ] }, { "cite": "328 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410617 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0480-01" ] }, { "cite": "263 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 2d 717", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2912326 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/131/0717-01" ] }, { "cite": "177 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791054 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0540-01" ] }, { "cite": "289 N.E.2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2675514 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/1055-01" ] }, { "cite": "279 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2836960 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0642-01" ] }, { "cite": "232 N.E.2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "88 Ill. App. 2d 265", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499292 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0265-01" ] }, { "cite": "318 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2940531 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0687-01" ] }, { "cite": "272 N.E.2d 278", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 853", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473121 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0853-01" ] }, { "cite": "169 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737298 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0126-01" ] }, { "cite": "192 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360801 ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0441-01" ] }, { "cite": "356 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2641253 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0308-01" ] }, { "cite": "360 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2897980 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0888-01" ] }, { "cite": "322 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 1079", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5310185 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/1079-01" ] }, { "cite": "228 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 2d 215", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2554282 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/84/0215-01" ] }, { "cite": "216 N.E.2d 510", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 2d 50", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2591306 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/69/0050-01" ] }, { "cite": "89 S. Ct. 2100", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "23 L. Ed. 2d 746", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "395 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771907, 1771881, 1772210, 1772180, 1772212, 1772117 ], "opinion_index": 0, "case_paths": [ "/us/395/0959-03", "/us/395/0959-01", "/us/395/0959-05", "/us/395/0959-04", "/us/395/0959-02", "/us/395/0959-06" ] }, { "cite": "243 N.E.2d 245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "41 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853978 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0434-01" ] }, { "cite": "329 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409465 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0873-01" ] }, { "cite": "288 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "52 Ill. 2d 371", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394435 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0371-01" ] }, { "cite": "86 N.M. 350", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2822538 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/86/0350-01" ] }, { "cite": "99 N.E. 357", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "255 Ill. 203", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4702260 ], "opinion_index": 0, "case_paths": [ "/ill/255/0203-01" ] }, { "cite": "28 N.E. 1060", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "139 Ill. 213", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3005857 ], "opinion_index": 0, "case_paths": [ "/ill/139/0213-01" ] }, { "cite": "74 N.E.2d 706", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "397 Ill. 529", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2464554 ], "opinion_index": 0, "case_paths": [ "/ill/397/0529-01" ] }, { "cite": "250 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 2d 208", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590896 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0208-01" ] }, { "cite": "163 N.E.2d 511", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "18 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327618 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0081-01" ] }, { "cite": "291 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2844484 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0054-01" ] }, { "cite": "279 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3907508 ], "weight": 3, "pin_cites": [ { "page": "339" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/us/279/0337-01" ] }, { "cite": "318 N.E.2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "22 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2940531 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/22/0687-01" ] }, { "cite": "272 N.E.2d 278", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 1 }, { "cite": "133 Ill. App. 2d 853", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473121 ], "year": 1974, "opinion_index": 1, "case_paths": [ "/ill-app-2d/133/0853-01" ] } ], "analysis": { "cardinality": 1082, "char_count": 22344, "ocr_confidence": 0.888, "pagerank": { "raw": 2.4987400927651437e-07, "percentile": 0.8092722780362871 }, "sha256": "78de3a84febd7ab3d56ff7d6862f9c2ebade3e95a308e4a800022b42f6d485d8", "simhash": "1:b21c7c9672e38c66", "word_count": 3725 }, "last_updated": "2023-07-14T21:56:34.806209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACK ARTHUR DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE MILLS\ndelivered the opinion of the court:\n\u201cWe agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.\u201d\n\u2014Mr. Justice Holmes in Roschen v. Ward (1929), 279 U.S. 337, 339, 73 L. Ed. 722, 728, 49 S. Ct. 336.\nThe central issue to this appeal: what constitutes burglary in Illinois?\nBut first, some facts.\nAn information against Mr. Davis was filed charging him with the burglary of Consolidated Construction Co. in Champaign in that he knowingly and without authority \u201center[ed] into part of\u201d the building where its offices were located with the intent to commit a theft. At trial, Willie Gordon, Jr., owner and operator of Consolidated, stated that during the afternoon of May 4,1976, he typed an estimate for a customer and left his offices at 3:20 p.m. to deliver it. The building had only one public entrance and he locked it when he left. He returned to his office at 4:05 p.m. and found the door open and his typewriter missing. Gordon left the building and, in a store two doors down, found John Lee Johnson. Johnson, who used part of the building for the Community Action Depot, was asked by Gordon if he took the typewriter. Johnson told Gordon he had unlocked the outside door about 3:55 p.m. and had left the building about 10 minutes before Gordon\u2019s return. Gordon returned to the office, called the police and then went out to where five or six people were standing behind a nearby store. Gordon asked if any of them had seen anyone go into the office and get the typewriter or if any of them had taken it. Defendant was the only one of the group who replied, stating he \u201cdidn\u2019t know anything about the typewriter,\u201d and that he had not seen anyone go into the office and take the typewriter. Neither defendant nor the general public had authority to be in Consolidated\u2019s office or to take the typewriter.\nOwen Fabert owns Trader\u2019s World Pawn Shop. About 4 p.m. on May 4, 1976, Fabert purchased a typewriter from defendant for $25. Defendant Davis\u2019 signature appeared on the bill of sale. Defendant was alone, didn\u2019t bargain over a price (Davis suggested $25) and the transaction took a very short time. Trader\u2019s World is two blocks from Consolidated\u2019s office. The typewriter was Consolidated\u2019s.\nDefendant testified that he had been convicted of burglary in 1968 and 1972. He had been drinking alcohol all day on May 4 and about 4 p.m. he was near the train station when a man his height wearing sunglasses asked him to take a typewriter to a pawn shop. Of the $25 the man wanted for the typewriter, he would give defendant s7. Defendant made the transaction, received the *7 and purchased some whiskey. Defendant didn\u2019t know who the man was. Defendant stated he was never in Consolidated\u2019s office. Certified copies of defendant\u2019s prior convictions were admitted.\nThe floorplan of the building is as follows:\nThe connecting doorway to the area occupied by Consolidated Construction is somewhere between 5 and 15 feet wide. There is no door. Johnson and Terry Townsend, both of whom work in the front part of the building, have free access to Gordon\u2019s office. Gordon has seen members of the public come into the front part of the building. He never saw defendant with the typewriter. The front door showed no signs of forced entry.\nDavis was found guilty by the jury and was sentenced to 6 2/3 to 20 years\u2019 imprisonment. He first argues that the evidence adduced was insufficient to prove his entry into the building, his lack of authority, or his intent to commit theft. He also contends that his explanation of the day\u2019s events denying guilt, even if incredible, can\u2019t be used as an admission of guilt.\nHowever, both parties argue positions based on what they think burglary means, as distinguished from what the statute states and comprehends.\nAt common law, burglary was a crime against habitation. (People v. Powell (1972), 9 Ill. App. 3d 54, 291 N.E.2d 669.) As described by the Committee Comments to our Criminal Code, the elements of burglary were \u201cthe breaking and entering of the dwelling house of another in the nighttime with intent to commit a felony therein.\u201d (Ill. Ann. Stat., ch. 38, par. 19 \u2014 1, Committee Comments, at 307 (Smith-Hurd (1970).) The rather strict interpretation by those courts of the individual elements resulted not only from normal rules of penal construction, but also from the terminal sentence waiting for those convicted (see, e.g., State v. Wilson (1793), 1 N.J.L. (Coxe) 439). Illinois\u2019 legislature has shaped what is now called \u201cburglary\u201d into a form unrecognizable to our common law ancestors. Gone is the element of \u201cbreaking,\u201d from which word such fine distinctions sprang. Gone too are the elements of \u201cnighttime\u201d and \u201cdwelling house\u201d; burglary is now a 24-hour crime which may be practiced upon a number of designated man-made cubicles. Section 19\u2014 1(a) of the Criminal Code of 1961 now states:\n\u201cA person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4 \u2014 102 of The Illinois Vehicle Code.\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 19 \u2014 1(a).)\nThe essence of the crime is entry into the designated areas with the requisite intent (see People v. Urbana (1959), 18 Ill. 2d 81, 163 N.E.2d 511; People v. Rossi (1969), 112 Ill. App. 2d 208, 250 N.E.2d 528). Naturally, the State has the burden of proving the necessary intent at the time entry was made. (Rossi.) Where a window has been broken or a door jimmied, intent is easily shown. However, since no breaking is now required, proof of an unforced entry by a person when there are no eyewitnesses can only be accomplished by circumstantial evidence and inferences drawn therefrom.\nIn this particular situation, clarity demands a discussion of what is not material to decide defendant\u2019s reasonable doubt issue. The use of force in entry has not been a necessary element of burglary in Illinois for some time. (See People v. Brown (1947), 397 Ill. 529, 74 N.E.2d 706.) The \u201cclose\u201d broken in the instant case was not the front door of the building; the \u201centry\u201d occurred by passing through the doorway inside the building into Gordon\u2019s office area. Historically, Illinois courts have recognized that entry into certain separate areas of a building with the requisite intent could support a burglary charge. (See Kincaid v. People (1891), 139 Ill. 213, 28 N.E. 1060.) The statute implements this logic by providing entry into certain structures \u201cor any part thereof\u201d as an element of burglary. The charge and the State\u2019s arguments at trial in this case were directed to proof of burglary into a part of the building, namely Gordon\u2019s office area. Any discussion by the State or the defense regarding the front door is therefore immaterial to proof of burglary. The fact that Johnson left the door open merely provided a means of quicker entry to the front portion of the building.\nThe fact that the doorway contained no door is likewise immaterial. At common law, the burglary of any interior chamber had to be pursuant to some \u201cbreaking\u201d thereof (State v. Wilson), directly requiring the existence of an interior barrier such as a hotel room door (see People v. Carr (1912), 255 Ill. 203, 99 N.E. 357). Some recent authority indicates the requirement of an interior barrier. (State v. Ortega (1974), 86 N.M. 350, 524 P.2d 522.) However, the Illinois Supreme Court in People v. Blair (1972), 52 Ill. 2d 371, 288 N.E.2d 443, found a car wash with an open entry and exit-way to be a \u201cbuilding\u201d susceptible of being entered under the burglary statute. In People v. Shannon (1975), 28 Ill. App. 3d 873, 329 N.E.2d 399, the court had no trouble finding an entry had occurred when defendant went through an open loading door. The key to the crime is entry into the prohibited space, not whether entry was made by turning a handle, cracking a lock, or walking through an open portal. In light of Blair and Shannon, logic demands that entry into a \u201cpart\u201d of a building through an open doorway with the requisite intent is a prohibited act under our burglary statute.\n\u201cAuthority\u201d is likewise of little concern here for three reasons. First, Gordon testified that Davis and others had no authority to be in his office. No evidence before the jury or in any offers of proof showed that Johnson or Townsend had permission to allow others to use the office. Defendant\u2019s use of the public place rule to argue authority is inapposite. The rule states that authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open. (People v. Weaver (1968), 41 Ill. 2d 434, 243 N.E.2d 245, cert. denied (1969), 395 U.S. 959, 23 L. Ed. 2d 746, 89 S. Ct. 2100 (laundromat); see People v. Schneller (1966), 69 Ill. App. 2d 50, 216 N.E.2d 510 (museum); and People v. Wilson (1967), 84 Ill. App. 2d 215, 228 N.E.2d 585 (grocery store).) Only the front part of the building was shown to be public in nature. Since the question revolves around intent upon entering the back section of the building, the rule does not apply. Even if the office area were public in nature, the entry which resulted in the typewriter being stolen was not consistent with the reason the office area was open, i.e., for Gordon to sell his construction services to customers. Lastly, entry of a protected area under the burglary statute with the intent to commit a theft implies the entry was without authority. People v. Woolsey (1975), 24 Ill. App. 3d 1079, 322 N.E.2d 614.\nTherefore, we are left with entry and intent. Entry, and the manner thereof, as well as intent to commit a theft, may be inferred from the facts in evidence. (People v. Cokley (1977), 45 Ill. App. 3d 888, 360 N.E.2d 545; People v. Rollins (1976), 42 Ill. App. 3d 308, 356 N.E.2d 124.) Circumstantial evidence of burglary may arise from either evidence of entry or evidence of the criminal\u2019s later acts. For example, in the absence of inconsistent circumstances, proof of unlawful entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a burglary conviction. The inference, grounded in human experience, is that the unlawful entry was not purposeless and indicates theft as the most likely purpose. People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864.\nIn addition, evidence of a defendant\u2019s subsequent acts may give rise to inferences sufficient to sustain a conviction. It is hornbook law that nothing need be taken in order to support a burglary conviction based on intent to commit a theft; however, inferences may arise from defendant\u2019s later possession of the fruits of his work. The fact that larceny or theft was actually committed is evidence that the earlier entry was accomplished with an intent to commit that offense. (People v. Franceschini (1960), 20 Ill. 2d 126, 169 N.E.2d 244). A defendant\u2019s participation in the crime is established circumstantially by his recent, exclusive and unexplained possession of the proceeds of the burglary which in itself gives rise to an inference of guilt which is sufficient to sustain a conviction. (People v. Umphers (1971), 133 Ill. App. 2d 853, 272 N.E.2d 278; People v. Brandy (1974), 22 Ill. App. 3d 687, 318 N.E.2d 70.) Even defendant Davis\u2019 trial and appellate counsel admitted that theft on defendant\u2019s part was strongly reflected in the record; trial counsel sought unsuccessfully to include a theft instruction for the jury. Applying the legal theories of Franceschini and Umphers to the instant case, it was not improper for the jury to infer from the facts before them that Davis stole the typewriter, and that he entered Gordon\u2019s office area intending to commit theft.\nDefendant urges that his explanation of events \u2014 even if incredible \u2014 is not evidence of his guilt. It is well settled that when a defendant elects to justify his participation at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities. (Rollins; People v. Johnson (1967), 88 Ill. App. 2d 265, 232 N.E.2d 554; People v. McCoy (1972), 3 Ill. App. 3d 642, 279 N.E.2d 417; People v. Morris (1972), 7 Ill. App. 3d 1055, 289 N.E.2d 73.) Logic indicates this rule applies with equal force to a defendant\u2019s explanation of his possession of proceeds of a recent burglary. Defendant Davis\u2019 story has severe time problems. The bill of sale impeached defendant\u2019s denial to Gordon shortly after the crime. Defendant\u2019s story, while explicit regarding the typewriter transaction with the stranger, became clouded when the conversation with Gordon was raised. He couldn\u2019t remember. The transaction with the stranger is less than credible. This case does not contain evidence of defendant\u2019s acts inconsistent with the theory of his earlier intent to steal as in People v. Soznowski (1961), 22 Ill. 2d 540, 177 N.E.2d 146.\nThe standard we use on review is unquestioned: the circumstantial evidence must be such as is not only consistent with defendant\u2019s guilt, but inconsistent, upon any reasonable hypothesis, with his innocence. (Cokley; People v. Brown (1970), 131 Ill. App. 2d 717, 263 N.E.2d 603.) The evidence before us is inconsistent, upon any reasonable hypothesis, with defendant\u2019s innocence. It was proper for the jury to infer that after Johnson left the front door open, defendant entered and went into Gordon\u2019s offices in back intending to steal something. The typewriter was taken and quickly pawned. Defendant returned near the building and told Gordon he didn\u2019t know anything about the typewriter. When the bill of sale surfaced, defendant attempted to explain his presence in the pawn shop with the typewriter. The verdict is not palpably contrary to the weight of the evidence.\nNext, it is contended that the court erred in denying an \u201camended\u201d motion for substitution of judges. However, the facts indicate that defendant filed a motion based on section 114 \u2014 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 \u2014 5(a)) naming only the judge then assigned to the case. The motion was granted and Judge Munch was assigned for trial. Only then did the \u201camended\u201d motion for substitution under section 114 \u2014 5(a) naming Judge Munch appear. The Committee Comments are clarion: section 114 \u2014 5(a) allows one motion which may contain the name of two judges. The second motion (or \u201camended\u201d motion) thereunder does not require automatic substitution. People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608, is questionable authority for defendant\u2019s position since the propriety of automatically granting the second section 114 \u2014 5(a) motion was not discussed. The trial court acted properly in denying the \u201camended\u201d motion.\nMr. Davis puts forth various allegedly prejudicial trial errors. Defendant\u2019s contention that the trial court\u2019s decision to strike Terry Townsend\u2019s testimony concerning the public nature of Gordon\u2019s office area was error must fail. Even if other people went into the office, no prejudice occurred since the authority which clothes an invitee is coterminous with the invitation given. (Schneller.) Gordon stated defendant and the general public had no authority to be in his office area; the fact that others at different times may have been in the area (without authority) does not help defendant\u2019s cause.\nDefendant also contends the trial court abused its discretion in refusing defendant\u2019s request for a continuance. We find, however, no abuse occurred. In addition, the court did not err in refusing defendant\u2019s offer of proof as to his alcoholism. The evidence in the record, including defendant\u2019s own description of events (especially his pawning the typewriter) shows that he possessed the requisite mental states of knowledge and intent. Proof of chronic alcoholism, by itself, does not exempt a defendant from criminal liability.\nFinally, defendant argues the court erred in allowing a certified copy of a prior conviction into evidence which contained not only evidence of a theft conviction, but also burglary indictments upon which defendant was acquitted. Defendant, during his testimony, admitted two prior burglary convictions, but stated one such conviction and a theft conviction had been \u201cthrown out.\u201d The inclusion of criminal charges upon which defendant was not convicted was surplusage, irrelevant and error. (People v. Spenard (1977), 46 Ill. App. 3d 892, 361 N.E.2d 856.) This is an example of prosecutorial overkill which cannot and will not be sanctioned by this court. When the prosecution wishes to impeach a defendant with a prior conviction (otherwise admissible under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, and its progeny), the proper method of proof is by introduction of a certified copy of the record of conviction only; in this way, should the jury take the exhibit to the jury room, the jury will not be subject to irrelevant evidence as existed here.\nAs our Illinois Supreme Court has held:\n\u201cIt has been the consistent holding of this court that proof of the prior conviction of an infamous crime to impeach the defendant\u2019s credibility shall be by the record of conviction or an authenticated copy. (People v. McCrimmon, 37 Ill. 2d 40, 45; People v. Flynn, 8 Ill. 2d 116, 120.) The basis for this rule is the prejudice to a defendant who is compelled to testify before a jury as to his prior convictions. Flynn at 121; People v. Kosearas, 408 Ill. 179, 181.\u201d People v. Bey (1969), 42 Ill. 2d 139, 146-47, 246 N.E.2d 287, 291-92.\nHowever, as in Spenard, defendant has waived the issue before this court. At trial, defense counsel\u2019s objections to the admissibility of the exhibits containing defendant\u2019s prior convictions did not address the inclusion of the surplusage; defendant cannot now be heard to complain of this error. In addition, the irrelevant and surplusage arrests in the exhibits were adequately explained and nullified by defendant\u2019s own testimony which stood uncontradicted. Thus the unpreserved error became harmless at best. Bey; People v. Nastasio (1963), 30 Ill. 2d 51, 195 N.E.2d 144.\nAnd in conclusion, defendant argues his sentence was excessive. He had two prior burglary convictions. His parole on the later charge was revoked. In addition, he was AWOL from an alcoholism program which he was attending in order to fulfill an 11-month sentence for driving while intoxicated. Under the facts of this case \u2014 and in the context of defendant\u2019s prior record \u2014 we do not feel that the sentence of 6 2/3 to 20 years is excessive. Defendant\u2019s conviction and sentence are affirmed.\nAffirmed.\nLEWIS, J., concurs.", "type": "majority", "author": "Mr. JUSTICE MILLS" }, { "text": "Mr. PRESIDING JUSTICE REARDON,\ndissenting:\nAt best this case, insofar as the charge of burglary is concerned, is a skimpy, circumstantial one. There is no direct evidence placing the defendant in the premises wherein the stolen typewriter was located. The majority is content with the proof of the requisite intent to commit the crime of burglary by the evidence establishing possession of the typewriter in the defendant sometime after the commission of the crime. Exclusive and unexplained possession of the proceeds of a burglary does, of course, give rise to an inference of guilt of something, but is it burglary or some other crime? Where that possession is explained by the uncontradicted statement of defendant it is stretching out to an inordinate degree to bring it within the teaching of People v. Umphers (1971), 133 Ill. App. 2d 853, 272 N.E.2d 278, and People v. Brandy (1974), 22 Ill. App. 3d 687, 318 N.E.2d 70. In both Umphers and Brandy there was flight from the scene of the crimes and the possession of the proceeds of the burglary was accompanied by other incriminating factors. Here there was no attempt to flee.\nFurthermore, the majority indicated that \u201cIt is well settled that when a defendant elects to justify his participation at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities.\u201d Surely the defendant cannot be understood to say that he was justifying his participation at or near the scene of the crime while denying participation. The defendant was explaining his possession of the recently stolen typewriter. The jury, of course, could believe or disbelieve his story, but to use his denial as a prop to support the State\u2019s duty to prove defendant\u2019s guilt beyond a reasonable doubt is carrying things too far.\nThe receipt into evidence of a certified copy of a prior conviction, containing evidence of burglary indictments upon which defendant was acquitted, is error of a most egregious nature. The majority concedes this to be \u201can example of prosecutorial overkill which cannot and will not be sanctioned by this court.\u201d This conclusion of the majority was, alas, not one of long standing. It was followed by a determination that the so-called \u201cirrelevant and surplusage arrests in the exhibits were adequately explained and nullified by defendant\u2019s own testimony which stood uncontradicted.\u201d This is indeed remarkable. The majority believes the defendant and relies upon his testimony when he explains his past record, but denies his credibility when he explains his conduct in this case. In any event, the receipt into evidence of these documents could only serve to prejudice the jury against defendant and, in my judgment, constitutes reversible error which, even though not preserved, should be reached by the application of the doctrine of plain error. For these reasons, I dissent.", "type": "dissent", "author": "Mr. PRESIDING JUSTICE REARDON," } ], "attorneys": [ "Richard J. Wilson, of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "James R. Burgess, Jr., State\u2019s Attorney, of Urbana (Robert C. Perry and Jeffrey B. Levens, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MACK ARTHUR DAVIS, Defendant-Appellant.\nFourth District\nNo. 13978\nOpinion filed November 18, 1977.\nREARDON, P. J., dissenting.\nRichard J. Wilson, of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJames R. Burgess, Jr., State\u2019s Attorney, of Urbana (Robert C. Perry and Jeffrey B. Levens, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0517-01", "first_page_order": 539, "last_page_order": 549 }