# People v. Tate

> Appellate Court of Illinois · August 8, 1980 · 87 Ill. App. 3d 21

URL: https://www.frixlaw.com/law-library/cases/7018810

## Case

- **Full name:** THE PEOPLE OF THE STATE OF ILLINOIS v. CHARLES TATE
- **Court:** Appellate Court of Illinois
- **Decided:** August 8, 1980
- **Citations:** 87 Ill. App. 3d 21; 42 Ill. Dec. 449; 408 N.E.2d 1158; 1980 Ill. App. LEXIS 3371
- **Precedential status:** Published
- **Opinion:** Concurring in part by Stengel
- **Judges:** Stengel, Stouder
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7018810

## Opinion text

Mr. JUSTICE STENGEL, concurring in part and dissenting in part:
I agree with the result reached by the majority in all but the fourth issue, which is whether the defendant’s conviction for criminal damage to property must be reversed because the State failed to prove that the damaged property was the property of Michael Maycen, the store security guard.
It is undisputed that Maycen was employed as a security guard by the Convenient Food Mart and that he was working inside the store at the time of the occurrence. I disagree with the majority’s conclusion that there was no evidence presented establishing that Maycen had a possessory interest in the damaged door.
The defendant was charged in count II of the information, as follows:
* * Defendant did knowingly damage by shooting a firearm, certain property, to wit: a door, the property of Michael Maycen, * * * without the consent of Michael Maycen in violation of Section 21 — 1(a) of Chapter 38 of Illinois Revised Statutes.”
Section 21 — 1 of the Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 21 — 1) in pertinent part provides:
“21 — 1(a) Knowingly damages any property of another without his consent.”
In People v. Kubish (1934), 357 Ill. 531 , 192 N.E. 543 , the court considered what is taking “from the person of another” in the crime of robbery.
“The plaintiff in error makes two contentions for a reversal of the judgment. The first is that there is a fatal variance between the allegations of the indictment and the proof with respect to the ownership of the property stolen. " " *
* * "The words ‘from the person of another’ are not restricted in their application to those cases in which the property stolen is in actual contact with the person of the one robbed, but include within their meaning the taking, by force or intimidation, from the presence of the person assaulted, of property which either belongs to him or is under his personal control and protection.” 357 Ill. 531, 535-36 .
Maycen testified that he was a security guard of the Convenient Food Store and was working at the store on December 12,1977, at about 10:30 p.m. when the offense occurred. Proof of possession of the building by a lessee, or anyone entitled to lawful possession thereof, such as the security guard or store clerk, was sufficient proof of ownership as against a wrongdoer. The pertinent statute only requires that the property injured was that of a person other than the accused. See People v. Burnett (1946), 394 Ill. 420 , 68 N.E.2d 733 .
In the instant case, Maycen also testified that at no time in his capacity as store security guard did he give defendant permission to damage the front door of the Convenient Food Mart.
In recent years the requirements as to proof of ownership have been relaxed. Since the purpose of pleading ownership is to preserve the defense of double jeopardy and to show that the building was not the property of the accused and to thereby negate his right to enter it, an allegation of ownership may be established, not by proof of ownership, but by proof of occupancy and possession. Illinois courts recognize that the requirement that ownership must be alleged has become an empty formality, as pinpointed by section 15 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 15 — 2), which defines “owner” as “a person, other than the offender, who has possession or any other interest in the property involved.”
It is interesting to note how our courts and legislature have abolished the old ritualistic requirement of ownership as an element of various crimes. For example, it is sufficient to allege ownership of a stolen automobile as being in the name of a lessee rather than the lessor. (People ex rel. Insolata v. Pate (1970), 46 Ill. 2d 268 , 263 N.E.2d 44 .) While at one time it was necessary that an indictment for burglary identify the owner of the building concerned, if it was known, such an allegation of ownership is no longer necessary. (People v. Gregory (1974), 59 Ill. 2d 111 , 319 N.E.2d 483 .) The crime of armed robbery is committed when one person takes property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a dangerous weapon. It has been held that the ownership of the property taken is unimportant. Proof of its possession by the victim is sufficient for the purpose of establishing the crime. (People v. Scott (1974), 23 Ill. App. 3d 956 , 320 N.E.2d 360 .) In an arson case, the State does not have the burden of proving the identity of the owner or possessor of the premises provided the proof otherwise establishes that the property is one in which someone other than the defendant has an interest which the defendant has no authority to defeat or impair. People v. Rawls (1978), 57 Ill. App. 3d 702 , 373 N.E.2d 742 .
The further modernization of our criminal law by elimination of meaningless formalities was recently emphasized by our supreme court in In re W. S., Jr. (1980), 81 Ill. 2d 252 , 408 N.E.2d 718 , which involved the prosecution of a minor for burglary where the State had failed to prove the corporate existence of the alleged victim. The court said:
“In any event, the failure of the State to prove corporate existence is not fatal to its case. As the court held in McGuire, a burglary prosecution, antiquated standards of proof of corporate existence are inconsistent with the idea that the significant rights of the accused are of greater concern than compliance with ritualistic formalities. * ° °
* * * Consistent with this liberalization of the standards of proof of corporate existence, we held in People v. Rerland (1978), 74 Ill. 2d 286, 312 , a prosecution for arson with intent to defraud an insurance company, that the State’s failure to produce evidence on the question of corporate existence is not fatal to its case and that corporate existence, a matter of public record, is a fact which is properly before a court by way of judicial notice. * * ° Professor Wigmore specifically approved of the practice when questions of corporate existence arise, labeling the courts early rulings ‘a bundle of barnacles clinging to the solid bottom of the Ship of Justice, retarding its speed and usefulness and making it unseaworthy.’ Comment, 10 Ill. L. Rev. 436 (1916).” 81 Ill. 2d 252 , 255-57, 408 N.E.2d 718 , 720-21.
Defendant relies on one solitary authority, People v. Smith (1974), 18 Ill. App. 3d 851 , 310 N.E.2d 796 , where the convictions of battery and criminal damage to property were reversed because of a failure to prove the allegations of ownership. By examining the facts in Smith one cannot escape noting the distinctive and disparate facts of the case at bar. In Smith the defendant was charged with damaging the plate glass window of Gus Kaprales without his consent; the State’s proof however was that Oscar Perlis owned the window which was broken. The decision stated, “we have before us a gross dissimilarity, a failure of proof. Kaprales, the alleged owner, did not appear at the trial and hk name k not mentioned in the record.” (Emphasis added.)
In the instant case, however, it is clear that the State relied upon Maycen, as store security guard, to establish the necessary element of possession. It was his duty to secure the premises and to watch over it during his hours of employment as security guard for Convenient Food Mart. In every sense, Maycen had the semblance of legal control and possession over the store premises. He certainly had a right of possession or control greater than that of the defendant. As such, the necessary possessory element needed to sustain the conviction for criminal damage to property was proven. The premises were sufficiently identified by the evidence. The defendant was amply protected against any subsequent prosecution for criminal damage to property of the Convenient Food Mart.
In People v. Hurley (1973), 10 Ill. App. 3d 74 , 293 N.E.2d 341 , the defendant was convicted of burglary. On appeal, he argued that the State did not establish his guilt beyond a reasonable doubt because it failed to prove the ownership of the property as alleged in the indictment. The court initially noted:
“It is at once apparent that we do not deal with the sufficiency of an indictment. We do deal with the sufficiency of the evidence to sustain the allegations in that indictment. We can find no reference in the testimony to Sunshine Oil Co., Inc. Keith Wells testified that he was the manager of the Site Service Station at 2625 South Sixth Street, Springfield, Illinois, stated that it was just north of the Supper Club and just north of the station is an apartment building. The testimony does not disclose whether Site Service Station is a trade-name used by Sunshine Oil Co., Inc., or whether it is some other type of legal entity. There is no question in this record but that the property was sufficiently identified, that the defendant had no authority to enter it in the early hours in the morning, and is amply sufficient to locate and precisely identify the place burglarized for purposes of double jeopardy and for purposes of making a proper and adequate defense.” ( 10 Ill. App. 3d 74,75-76 , 293 N.E.2d 341, 342 .)
The court, in rejecting the defendant’s argument, went on to hold:
“In the case at bar, the manager testified unequivocally that he was the manager of the Site Service Station. 0 0 0 [T]he term ‘manager’ [has been] held to sufficiently support a burglary indictment charging ownership. Indeed common sense teaches us that one who is managing a business can hardly do so without having some semblance of legal control, possession or otherwise. The record is clear that the term ‘Site Service Station’ served the purpose of precisely and carefully identifying the property entered. There seems little doubt that the evidence here offered meets the requirements of the statute and fully protects the defendant in his preparation for trial, his shield against a second prosecution, and certainly establishes that he had no right of entry and shows no prejudice.” 10 Ill. App. 3d 74, 76 , 293 N.E.2d 341, 342 .
With reference to our supreme court’s quotation of Professor Wigmore’s comment in In re W. S., Jr., I fear the majority opinion here will merely add another “barnacle” to slow the progress being made by the courts in relaxing the requirements as to proof of ownership or possession. The question of the guilt or innocence of the defendant was one for the jury, and this court should not interpose in its own opinion on that issue unless satisfied, from a consideration of all the evidence and legal authority, that there is a reasonable doubt of the guilt of the accused.
I would affirm the convictions on all issues raised by the defendant, but would grant a credit for the entire amount of the fine as the majority has indicated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7018810. Public record. Not legal advice.