18 N.E.2d 189 | Ill. | 1938
Barney Lind and his sixteen-year-old son, Edwin, were jointly indicted, tried and convicted in the circuit court of St. Clair county for the larceny of thirty chickens, valued at $20. The elder Lind seeks review of his conviction by this writ of error.
When Barney Lind, a coal miner, arrived at his home in Lebanon from work about 3:30 P.M. on September 11, 1937, his son, Edwin, asked him to go dove hunting. It was the first day of the open season. They had an early supper and left together in their automobile shortly after 4:00 P.M., one taking a shotgun and the other a rifle. After hunting along a railroad right-of-way, where the boy *133 killed four doves, they crossed into a nearby stubble field of a farm owned by Mike Hohrein. There were dead trees and a pond near this field, but no doves were found there and no shots were fired. As darkness approached they quit hunting and on the way back to their car left the stubble field and passed through the Hohrein farm yard. No one was living on the farm at the time as three weeks earlier Hohrein had conducted a public sale which Barney Lind had attended, buying various small articles of little value. While Lind and his son were passing between the house and the barn, two shots were fired at them without warning. Both were knocked down, the father being shot in the body and his son in the leg. They recognized Hohrein as the one who shot them, and asked for mercy. Hohrein then left without rendering any aid to them, and notified police officers and a doctor to come to his farm as he had shot some prowlers. With some difficulty, Lind and his son washed their wounds at the Hohrein well, and reached their automobile. They drove on home without delay and called a physician to treat them, and the father was later taken to a hospital. As a result of Hohrein's call, deputy sheriffs and other officers went to the Lind home and placed the father and son under arrest on a charge of stealing some thirty Rhode Island Red chickens from Hohrein's farm five days earlier, September 6. Soon after the father and son were removed to jail, Hohrein and several deputies came to the Lind home and talked to Mrs. Lind. They had no search warrant. There is a dispute over whether they secured her permission to search the premises for the chickens or whether, as she and her sisters said, they searched without asking her. The officers opened the henhouse and, with the aid of Hohrein and a flash-light, found thirty-one chickens which Hohrein claimed and seized as his own. The evidence shows that she and her husband had hatched and raised Rhode Island Red chickens that year, and chickens of the same breed remained there after Hohrein removed *134 those claimed by him. Two old pairs of shoes which Hohrein claimed belonged to his deceased father were also discovered and taken. Barney Lind testified that he had bought the shoes with some old magazines in a grab-package lot, at the Hohrein sale, for twenty-five cents. Some jelly which Mrs. Lind testified had been put up by her was also seized and claimed by Hohrein.
Prior to the commencement of their trial, Lind and his son filed a motion to suppress all evidence obtained by a search of their premises without a search warrant and to suppress all testimony pertaining to the same, claiming it was obtained by an illegal search and seizure, in violation of their rights guaranteed by section 6 of article 2 of the constitution. The circuit court denied their motion and this ruling is assigned as error.
There is direct and irreconcilable conflict in the testimony here as to whether Lind's wife gave her consent to the officers to search the premises. She and her two sisters, who were with her, emphatically deny that such consent was given, while the officers testified to the contrary. Even if it be assumed that she consented to the search, the more serious question arises whether the wife's consent to a search by men she knew to be a sheriff and deputy sheriff can operate as a waiver of her husband's constitutional rights. This point has never been squarely raised or passed upon in this State. In People v.Mizzano,
In other jurisdictions, we find some conflict of authorities, but by far the greater number and weight of judicial decisions favor the view that a wife cannot waive her husband's constitutional immunity against search of his dwelling. In a recent decision (1936) the Supreme Court of Ohio passed squarely upon this issue in State v. Lindway,
In the case of Maupin v. State,
The doctrine of implied coercion, defeating a claim of consent by a wife of the defendant, was likewise adopted in Duncan v.Commonwealth,
In Tobin v. State, 255 Pac. (Wyo.) 788, an officer, in the absence of defendant, was let into his building by an employee who was working for defendant. He had no search warrant and was not invited in. On the trial, in answer to a question whether he had made any objections at the time the officer came in, the employee answered: "Well, I recognized him as the sheriff and I didn't think it would help any to make any objection." The Supreme Court of Wyoming held the petition to suppress the evidence should have been granted, as the employee's action did not constitute a consent to an unlawful search but was merely a demonstration of his regard for the supremacy of the law. Likewise, in Michigan, it was held that where the wife owned the home as her separate property, her husband could not, by written waiver, consent to a search of the premises for liquor violations without a search warrant.
In Humes v. Taber,
From the foregoing authorities, we believe that, under the circumstances of this case, the motion to suppress the evidence obtained through the search and seizure of defendant's premises, without a search warrant, should have been allowed. As said before, the evidence, as between the wife and her sisters on the one hand and the officers on the other, was distinctly contradictory. The shooting of her husband and sixteen-year-old son while they were out dove hunting, the visit of the doctor to the house, followed by the officers who removed both the father and son to jail, undoubtedly left Mrs. Lind in a highly nervous state. These untoward events were followed shortly by the alleged request of the officers, and her consent, if obtained, was under the circumstances so tinged with official coercion that it cannot be said to have been freely given. We hold that, under these or similar conditions, the wife cannot waive her husband's constitutional rights, and that the search and seizure made without a search warrant was illegal.
The record further shows that Clyde Holdner, an alibi witness for Lind, was asked on cross-examination if he had not been paroled from the State of Michigan to a *140
deputy sheriff of St. Clair county. An objection to this question was overruled and the witness admitted the fact. This ruling was clearly erroneous since proof that a witness has been convicted of an infamous crime, in order to discredit his testimony, can be made only by the introduction of the record of the conviction or a properly certified copy thereof. (Bartholomew v. People,
For the reasons given, the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.