People v. Zangain , 301 Ill. 299 ( 1921 )

The indictment is insufficient. Burglary is an offense against property, and in a prosecution for burglary the indictment must allege, and the proof must show, that the property burglarized was that of a person or persons other than the accused. This indictment charges plaintiff in error with breaking and entering the "store building of James A. Hendricks and the estate of H. H. Morgan, deceased, operating under the firm name of Morgan Hendricks." An estate is not a natural person, an artificial person, or any other entity that may be the owner of property. (State v. Hammons, 226 Mo. 604; Beall v. State,53 Ala. 460; 3 Bishop on New Crim. Proc. sec. 139.) If the partnership, Morgan Hendricks, was the owner or the lessee of the store building at the time of the death of Morgan, then the property passed to Hendricks on the death of Morgan by virtue of section 89 of an act in regard to the administration of estates, and for the purposes of an indictment respecting the partnership property, before settlement of the partnership business, ownership should be laid in the surviving partner as the personal representative of the partnership. After the partnership business is settled the interest of the deceased partner passes to his personal representative, heir, devisee or legatee, as the case may be, and ownership should then be laid in all the individuals comprising the partnership, naming them. (Wallace v. People, 63 Ill. 451; Staaden v.People, 82 id. 432; Meadowcroft v. People, 163 id. 56; People v.Strieker, 258 id. 618; People v. Dettmering, 278 id. 580; People v.Picard, 284 id. 588.) For aught that appears on the face of this indictment the accused may have been the owner, in whole or in part, of the store building as heir or devisee of H. H. Morgan and may have had the possession of the building and the lawful right of entry. It has been repeatedly held by this court that ownership of property against which an offense is committed is a material averment in an indictment for the offense and that it must be proven; (Aldrich v. People, 225 Ill. 610;People v. Struble, 275 id. 162; People v. Csontos, 275 id. 402; Peoplev. DePaepe, 281 id. 318;) and our decisions have fully established the well recognized rule that such ownership must be laid in a legal entity capable of owning property. (People v. Brander, 244 Ill. 26; People v.Krittenbrink, 269 id. 244.) The judgment should be reversed.