147 N.E. 472 | Ill. | 1925
Lead Opinion
The construction of section 6 of article 2 of the constitution being involved, this writ of error is sued out of this court to review the judgment of the circuit court of DuPage county finding plaintiff in error guilty of possessing and selling intoxicating liquors contrary to the provisions of the Prohibition act and sentencing him to serve six months in the county jail and to pay a fine of $1000.
The eighth count of the indictment charges that Anton Elias did "unlawfully keep for sale intoxicating liquor while *378
the said county of DuPage was then and there prohibition territory, said keeping for sale of intoxicating liquor being then and there unlawful, prohibited and contrary to the provisions of the Illinois Prohibition act," and the ninth count is the same, except that it charges a sale instead of a keeping for sale. It is not unlawful, under all circumstances, to sell or keep for sale intoxicating liquors in this State. In order, therefore, to charge a violation of the Prohibition act it is essential that the indictment negative the exceptions contained in the act, (People v. Barnes,
Prior to the opening of the trial plaintiff in error filed in the circuit court a petition asking that certain intoxicating liquors in the hands of the sheriff be returned to him for the reason that they were illegally seized. This petition was denied on the ground that the intoxicating liquor was seized by virtue of a search warrant issued in accordance with the provisions of section 29 of the Prohibition act. This section provides that "whenever complaint is made in writing, verified by affidavit, to any judge, having cognizance of criminal offenses, that complainant has just and reasonable grounds to believe and does believe that in-toxicating liquor is manufactured, possessed, kept for sale, used, disposed of, or transported in violation of any law of this State, * * * with the facts upon which such belief is based, the judge may issue a search warrant."
The complaint filed in this case before the county judge of DuPage county is in accordance with the form prescribed by the Prohibition act and reads as follows: "The Complaint and Affidavit of C.W. Reed, of Naperville, made before S.L. Rathje, County Judge, in and for said county of *379 DuPage, on this, the 3rd day of June, A.D. 1924, who, being first duly sworn, upon his oath says: that he has just and reasonable grounds to believe and does believe that intoxicating liquor is now unlawfully manufactured, kept for sale, possessed, used, disposed of, transported, or any mash, still or other property designed for the illegal manufacture of intoxicating liquor is possessed, within prohibition territory, to-wit: at and within a certain frame building situated on Lots 1 and 2 in Block 1 in Arthur T. McIntosh's First Addition to Westmont, in the Village of Westmont, DuPage county, Illinois, said premises being on the south side of Chicago Avenue and East of Wilmette Avenue in the Village of Westmont, DuPage County, Illinois and used as a residence, soft drink parlor and restaurant and known as 'Tony's Place,' also such outbuildings as are situated on said Lots 1 and 2 aforesaid, occupied, owned or controlled by Anton Elias, in the Village of Westmont, in the County and State aforesaid; and the following are the reasons for such belief, to-wit: information received from one Ray Bullerman, a reliable person, that he, Bullerman, on the 31st day of May, 1924, and on divers other days, bought intoxicating liquor, saw it kept for sale and sold by Anton Elias in said premises."
A frequent recurrence to fundamental principles is essential to the preservation of good government and to the security of the liberty and personal rights of the citizen. (Sullivan v. City of Oneida,
Whether there is probable cause for issuing a search warrant is a judicial question, to be determined by the magistrate before whom complaint is made. The testimony on which the magistrate acts must be reduced to writing, incorporated in a formal complaint and verified by affidavit. (People v. Prall,
The verified complaint must state the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the accused, with sufficient definiteness so that if it is false perjury may be assigned on the affidavit. (People v. Prall, supra; Lippman v. People,
The language of section 6 of article 2 of our constitution provides exactly the same protection whether the warrant be for the search of a house and the seizure of property or for the search or seizure of a person. This court has held repeatedly that a complaint or information charging an offense on information and belief does not authorize the issuance of a warrant for the arrest of a person, (People *383
v. Shockley,
A charge is not "supported by affidavit" unless it is supported by documentary evidence or testimony under oath competent to establish the charge in a court. "Charges are not verified by an affidavit that somebody is informed and believes they are true. This is mere evasion of the law. The most improbable stories may be believed of anyone and the man most free from any reasonable suspicion of guilt is not safe if he holds his freedom at the mercy of any *385
man * * * who will swear that he has been informed and believes in his guilt. It is easy to tell falsehoods, and those who are least fitted to judge of their credibility are generally the very persons who will believe them because they are told. But to substantiate charges within the meaning of the law evidence is required, and not mere suspicion or information or beliefs." (Swart v. Kimball,
The complaint filed in this case does not charge that Anton Elias, or any other person, has committed a crime. (Housh v. People, 75 Ill: 487.) It merely states that the affiant believes that intoxicating liquors are to be found in a building occupied, owned or controlled by Elias. The fact that Elias owned the building and that intoxicating liquor was kept in it would not subject him to the penalties of the law unless the liquors were kept there with his knowledge for some prohibited purpose. Notwithstanding the failure of the complaint to charge any person with a crime, a general warrant was issued on the filing of the complaint, directing the sheriff to arrest any and all persons found in the premises in the event intoxicating liquor was found there. It was such general warrants issued by the officers of the Crown in England that caused the American people to demand that the Federal constitution specifically prohibit the issuance of a warrant except "upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."
The State's attorney in the instant case did not state in the complaint filed by him any fact as a basis for his belief that intoxicating liquors were then unlawfully kept in a building described that subjected him to the penalties of perjury in the event his information was false. Grant that Ray Bullerman did inform him that he bought intoxicating liquor from Anton Elias in the premises described. If this information was false no person could be prosecuted for perjury. Bullerman did not give the information under oath and he was therefore subject to no penalty if the information given by him was false. The State's attorney cannot be prosecuted for what he believes, no matter how insufficient or false the basis of his belief. From this analysis it seems clear that Elias was subjected to a search and seizure in direct violation of the constitution. If the State's attorney or other officer cannot make a verification *387 of facts then the complaint should be supported by the affidavit of someone who can. If the officer can get information that convinces him that a crime has been committed he can obtain the affidavit required by the constitution. If he cannot obtain the sworn testimony to secure the arrest of the accused and the seizure of the property of the accused, how can he get the sworn testimony to convict the accused after he is arrested? If Bullerman had the information the State's attorney says he had, then Bullerman could have made a proper affidavit to support a search warrant. The State's attorney's affidavit says he got his information from "Ray Bullerman, a reliable person," but this record shows that Bullerman was at the time in the county jail of DuPage county charged with the crime of burglary and larceny, and that his defense to that charge was that he was intoxicated when he broke and entered the building. Therefore it appears from this record that the so-called affidavit supporting the search warrant was based on hearsay, which in turn was based on the unsworn statement of a confessed felon.
There is no decision of this court that holds valid a complaint which does not state under oath that a crime has been committed. Defendant in error relies upon Langdon v. People,
Under the law clearly established by the great weight of authority in the Federal and State courts and supported by reason and logic, the complaint and the warrant issued pursuant thereto were void, and it was error to permit the State to introduce in evidence the intoxicating liquors illegally seized. People v. Castree,
With the evidence obtained by the unlawful search stricken from the record there is no evidence remaining which warrants a conviction under the eighth count of the indictment, which purported to charge a prohibited possession of intoxicating liquor. Nor is there evidence in the record justifying a conviction under the ninth count of the indictment, which purported to charge an illegal sale. The only testimony on this subject is that Mary Elias, the daughter of plaintiff in error, sold to Ray Bullerman a glass of liquid that looked and tasted like wine. Bullerman testified that he did not know what it was. He did not testify that it intoxicated him or that it contained any alcohol.
It was also error for the court to send to the jury room the vessels containing the intoxicating liquors seized at the home of plaintiff in error. It was stipulated that the contents of the six bottles and the jug were fit for use as a beverage and were intoxicating. The presence of the exhibits in the jury room would not assist the jury in reaching a correct conclusion on the issue presented unless they determined, by tasting and other experiments, whether the *389
liquor was intoxicating. If the jury had used the exhibits for this purpose they would have violated the constitutional provision guaranteeing "that in all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel" and "to meet the witnesses face to face." This provision means that all evidence in a criminal case must be produced in the presence of the accused. (People v. Clark,
The judgment of the circuit court is reversed.
Judgment reversed.
Dissenting Opinion
I was not in accord with the decisions in People v. Barnes,
The constitutional prohibition is against unreasonable search and seizure. If probable cause is shown by affidavit then the search is not unreasonable. What is probable cause is a judicial question, to be determined by the officer to *391 whom application is made for the writ. There is no requirement of the constitution that probable cause can only be shown by a complaint stating only facts within the personal knowledge of the affiant. To restrict the issuing of warrants by such a condition is not required by the constitution or the statute and would in a large measure nullify the use of search warrants in the administration of the criminal law.
Many decisions, both American and English, hold the question of probable cause does not depend on whether the crime has, in fact, been committed by the accused, but whether the affiant's belief is based upon reasonable grounds. The judge before whom the complaint is made determines whether probable cause exists for issuing the warrant. If the complaint shows reasonable grounds for suspecting a crime has been committed by the defendant it is sufficient. I quote from one case as typical of many: "It has been the practice, for years and years, for officers to swear out warrants based upon information and belief, and we are not prepared to hold that the oath or affirmation required by the constitution to be made to any complaint charging a person with felony, for the purpose of causing an arrest and examination to answer to a charge in another court, must be made upon the direct knowledge of the person taking the oath. A sheriff is seldom in possession of facts within his own positive knowledge. Again, those who are in possession and knowledge of the exact facts are often unwilling to become complainants themselves." State v.McCaffery,
The latest expression on the subject of search warrants by the Supreme Court of the United States is Carroll v. UnitedStates, decided March 2, 1925. In that case it was held that under the Federal Prohibition act it is lawful for Federal prohibition enforcement officers, without a warrant, to stop an automobile on the public highway, search it, and, if intoxicating liquors are found in it, seize the liquors and *392
arrest the parties in charge of the automobile. The court gives the history of the passage of the amendment to the act which it held authorized the search and seizure of an automobile on the public highway without a warrant. The amendment as originally proposed prohibited the search of "the property or premises of any person without previously securing a warrant," and provided a penalty for violation of the statute. The judiciary committee of the house objected to the amendment as proposed and filed a written report, in which it was stated there were on the statute books of the United States a number of acts authorizing search without a warrant; that "under the common law and agreeable to the constitution, search may in many cases be legally made without a warrant. The constitution does not forbid search as some parties contend, but it does forbid unreasonable search." As finally adopted the statute forbade search of a private dwelling without a warrant, or other building or property, where the search was made maliciously and without probable cause. The court said the amendment left the way open for searching an automobile or vehicle of transportation without a warrant if the search was not malicious or made without probable cause. The facts were, as stated by the court: In September, some two months before the automobile was stopped upon the highway and searched, the parties who were driving it had visited the apartment of the prohibition officers in Grand Rapids, Michigan, and the officers informed them they wished to buy three cases of whisky. Carroll and Kiro, the defendants, told the officers they would get it for them in a half to three-quarters of an hour and drove away in their car. Later they returned and informed the officers the man who had the liquor was out and they would deliver it the next day. They did not again return at any time and no explanation was ever made of their failure to do so. Some time in October the officers saw Carroll and Kiro driving east from Grand Rapids in the same car they had when *393
they visited the officers at their apartment. The officers followed in an attempt to overtake them but failed to do so. On the 15th of December, Carroll and Kiro, in the same automobile, met and passed the officers on the highway between Detroit and Grand Rapids. The officers pursued them, overtook, stopped and searched the car and found hidden in it sixty-eight bottles of intoxicating liquor. The officers seized the liquor and arrested Carroll and Kiro. The court said the search, seizure and arrest depended on whether the officers had reasonable cause to believe intoxicating liquors were being transported in the automobile for an unlawful purpose. The court quoted fromStacey v. Emery,
I cannot agree that the warrant in this case was illegally issued. *394