dissenting:
I respectfully dissent from the conclusion reached by my brothers that an intent to commit rape was proved beyond a reasonable doubt.
The facts demonstrate that the complainant was asleep in a bed with two children. She was awakened by someone touching her and discovered the defendant peering over the side of the bed. However bizarre the defendant’s conduct was, it falls far short of proving beyond a reasonable doubt that he entered the premises with the intent to commit rape. The origin of the touching is even subject to doubt; it might well have been caused by one of the children in the bed; even if it be assumed that it was in fact the defendant who did the touching, it is equally plausible that he was a fetishist of some sort whose quirk was to observe sleeping females and to stroke them gently. Rape is by nature forceful, and no force has been shown here.
It is true that the intent in burglary nearly always is shown by inference gleaned from the circumstances and especially by what occurs after the entry. In the case of larcenous intent the supreme court has said:
“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.” People v. Johnson (1963), 28 Ill. 2d 441, 443, 192 N.E.2d 864, 866.
“Theft as the most likely purpose” is simply a logical extension of the fact that at early common law burglary was viewed as robbery of a dwelling. Early on, this concept was expanded to include other felonies, and from the origin of this State the burglary statute included a comprehensive list. For example:
“Every person who shall, in the night time, wilfully, and maliciously, and forcibly, break and enter *** into any dwelling *** with intent to commit murder, robbery, rape, mayhem, larceny, or other felony, shall be deemed guilty of burglary ***.” Rev. Ill. Laws 1833, sec. 60, at 181-82.
The 1961 codification of the criminal law eliminated the list of offenses and substituted simply “with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) Thus, theft as the intent in burglary occupies a special status beginning with its common law origin down through modern times. Such cannot be said for “other felony.” I am not aware of any authority raising any presumption about any felony other than theft. It follows that the proof is more difficult when the charge is some felony other than theft, and that proof simply was not present here.
Other courts have grappled with this problem. In People v. Hutchinson (1964), 50 Ill. App. 2d 238, 200 N.E.2d 416, the defendant parked his car in broad daylight outside the premises, entered them, and remained for about five minutes. The place was not ransacked and nothing was found missing. Defendant was charged with burglary and convicted in a bench trial. The appellate court reversed, saying, “We believe there are enough ‘inconsistent circumstances’ [Johnson] here to negate the inference of an intent to commit larceny sufficient to sustain a conviction of burglary.” 50 Ill. App. 2d 238, 242, 200 N.E.2d 416, 418.
Hutchinson has been distinguished on a number of occasions (e.g., People v. Martin (1966), 77 Ill. App. 2d 183, 222 N.E.2d 180; People v. Jackson (1968), 98 Ill. App. 2d 296, 240 N.E.2d 482; People v. Williams (1969), 118 Ill. App. 2d 341, 255 N.E.2d 44; People v. Blake (1971), 1 Ill. App. 3d 689, 274 N.E.2d 499; People v. Sigman (1976), 42 Ill. App. 3d 624, 356 N.E.2d 400), but always on a factual basis. The “inconsistent circumstances” of Johnson still stands.
Nor can the failure to prove an intent to rape yield some other felonious intent sufficient to sustain the conviction. In People v. Soznowski (1961), 22 Ill. 2d 540, 177 N.E.2d 146, the defendant was charged with assault with intent to commit rape and burglary with intent to commit theft. The victim was awakened in the night by someone beating on her face. She screamed and the defendant fled and was immediately apprehended. In a bench he was found not guilty of assault with intent to commit rape but guilty of burglary with intent to steal. The supreme court reversed, saying:
“The trial judge was puzzled, as are we, with the purpose of the defendant. He apparently found in the acts of the defendant an insufficient basis for inferring an intent to commit rape and dismissed the count charging an assault with intent to commit rape. But it does not necessarily follow, as the State seems to argue, that, because the defendant did not intend rape, he must, therefore, have intended larceny.” 22 Ill. 2d 540, 544, 177 N.E.2d 146, 148.
In short, even though it may be assumed that an entry is not “purposeless” {Johnson), the purpose alleged in the charging document must be proved; and if not proved, it cannot be transmogrified into a generalized felonious purpose sufficient to sustain a conviction. That is exactly what the facts in the instant case demonstrate. All of the evidence, circumstantial and direct, inferential or otherwise, taken most favorably to the State, does not establish an intent to rape. The jury obviously took an attitude of he-was-up-to-no-good, even though it was unable to pinpoint the conduct.
In a larger sense, this case demonstrates some of the deficiencies of the burglary statute. Either the requirement of felonious intent should be eliminated, or the intent should be broadened to include any illegal act. The present statute puts both the State and the defendant in a quandry. The State must elect and prove some felonious intent, depending largely upon circumstantial evidence. The defendant may have a good defense, e.g., intent only to commit some misdemeanor, but must run the risk of taking the stand to establish it. An ancient doctrine has become so barnacled with age as to create serious legal problems; its accretions over the years, e.g., residential burglary in 1982 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3), have created a labyrinth through which few can tread with equanimity of mind. It is high time that the legislature looked hard and long at this statute in view of present-day conditions.
I would reverse the conviction.