163 N.E. 359 | Ill. | 1928
Plaintiff in error was tried in the county court of Montgomery county on an information consisting of two counts, the first of which charged him with the unlawful possession of intoxicating liquor. The second count charged him with the unlawful possession of a still. He was found *111 guilty on both counts and sentenced to pay a fine of $300 and costs on the first count and $200 and costs on the second count. Prior to the trial plaintiff in error filed a motion to impound and suppress the evidence secured by search and seizure under a search warrant, on the ground that the search warrant was illegal and violated his constitutional rights. This motion was denied. Plaintiff in error brings the cause here because a constitutional question is involved.
The complaint for a search warrant was filed and sworn to on the 28th day of August, 1927, and the search warrant was issued on that day. Search and seizure were made on the 7th day of September, 1927, ten days after the issuance of the search warrant, and the first question arising on this record is whether, by reason of the delay, the search warrant becamefunctus officio.
In People v. Wiedeman,
Section 29 of the Prohibition act provides that if the judge before whom complaint is made is satisfied of the existence of reasonable cause for believing that the person against whom the complaint is directed is in illegal possession of intoxicating liquor such judge shall issue a search warrant to a proper officer commanding him to forthwith enter the place described in the warrant, and if he find therein property described in the warrant, he shall forthwith bring it, together with the person arrested, before some judge having jurisdiction of the cause. The nature of a search warrant requires that when issued it shall be promptly executed. No discretion is conferred on the officer whose duty it is to serve the warrant to do so at his convenience. Unless a showing is made which reasonably accounts for the delay the warrant becomes functus officio and a search made under it is made without a warrant. People v.Wiedeman, supra; State v. Guthrie,
Plaintiff in error's counsel objected to the admission in evidence of the articles seized under the search warrant. The objection was overruled. This was error. (People v. Castree,
The judgment of the county court must therefore be reversed and the cause remanded.
Reversed and remanded. *113