THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, vs. CHARLES STANSBERRY, Appellant.—SAME, Appellee, vs. JAMES HARVEY, Appellant.—SAME, Appellee, vs. LONNIE HATCH, Appellant.
Nos. 40386, 42521, 43126 cons.
Supreme Court of Illinois
January 25, 1971
March 31, 1971
47 Ill. 2d 541
A reading of the opinion in Commercial Leasing, Inc. v. Johnson, 160 Me. 32, 197 A.2d 323, which does not squarely address itself to the question here, discloses that the courts in Maine have adopted a more narrow meaning of “use” than we have in Illinois. (See Philco Corp. v. Department of Revenue, 40 Ill.2d 312 and Miller Brewing Company v. Korshak, 35 Ill.2d 86.) We do not consider it has application here.
American contends that through error a duplicate assessment of the one we have considered here and, also, another and different assessment, which already had bеen satisfied, were included in the judgment of the circuit court. Accordingly, we reverse the judgment and remand the cause to the circuit court with directions to rectify the error in the original judgment.
Reversed and remanded, with directions.
Mr. JUSTICE DAVIS took no part in the consideration or decision of this case.
! (Nos. 40386, 42521, 43126 cons.—THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, vs. CHARLES STANSBERRY, Appellant.—SAME, Appellee, vs. JAMES HARVEY, Appellant.—SAME, Appellee, vs. LONNIE HATCH, Appellant.
Opinion filed January 25, 1971.—Rehearing denied March 31, 1971.
Mr. JUSTICE KLUCZYNSKI delivered the opinion of the court:
On separately docketed direct appeals to this court, these cases have been consolidated because there is a similarity of facts and similar aрplication of a legal principle. Defendants Charles Stansberry and Lonnie Hatch were found guilty in the circuit court of Cook County of the crime of illegal possession of heroin, a narcotic drug. They were convicted in a bench trial and sentenced to the penitentiary for terms of not less than two nor more than four years, and not less than two nor more than two years and a day respectively. After a jury trial, defendant James Harvey was found guilty in the circuit court of Cook County of the crime of possession of marijuana, а narcotic drug, and sentenced to the penitentiary for a term of not less than two nor more than five years.
Each defendant contends that his constitutional rights were violated by the refusal of the trial court to quash the search warrants and suppress the incriminating evidence produced by the execution of said warrants. It is argued that the allegations of the complaints which led to the finding of probable cause by a judicial officer in the first instance were false and fraudulent and that they should have a right to controvert those allegations. In addition, each defendant contends that a warrant issued pursuant to an affidavit signed with a false or fictitious name is void.
We have recently had occasion to consider the first question posed and have held that there is no constitutional or statutory right tо controvert the matters declared under oath which occasioned the finding of probable cause and
In support of their contention that the search warrants were void, defendants cite United States ex rel. Pugh v. Pate (7th cir. 1968), 401 F.2d 6, holding that a warrant issued pursuant to an affidavit signed with a false or fictitious name is void. Contrary to this finding we have previously held that the use of a fictitious name by an affiant to a search warrant does not constitute a violation of a defеndant‘s constitutional rights. (People v. Mack, 12 Ill.2d 151; People v. Smith, 40 Ill.2d 501.) The question thus presented is whether the Pugh case has any binding effect on this court when the issue has not been passed on by the United States Supreme Court. We find the question to be an elusive one though it is discussed generally in an annotation in 147 A.L.R. 857 and in 21 C.J.S. Courts, sec. 206. These references indicate a lаck of unanimity among the several States with the majority favoring the rule that such decisions should have no binding effect until the issue is considered and determined by the Supreme Court. This would appear to be the most logical conclusion, for oftentimes there is a conflict between decisions of the various Federal courts on constitutional matters and until finally determined by the United States Supreme Court there can be no definitive ruling by which a State court can be bound. (See: Lawrence v. Woods (7th cir.), 432 F.2d 1072, (8 Cr. Law Rptr. 2084.) For instance, on the question first posed in this
Following our previous decisions in People v. Mack, 12 Ill.2d 151, and People v. Smith, 40 Ill.2d 501, we reaffirm that the use of a fictitious name by an affiant to a search warrant does not constitute an abridgment of constitutional rights. People v. O‘Kiersey, 46 Ill.2d 198.
We shall now discuss the additional points raised by defendants Hatсh and Harvey.
Hatch contends that the police officers did not file and docket the search warrant until after it was served and he was arrested. This procedure admittedly was in compliance with
Harvey contends that the police wrongfully delayed one day after issuance of the warrant before executing it in order to inculpate him for the offense, that a statement of his was improperly admitted into evidence when admittedly he had not previously been warned of his constitutional rights, that the trial court erred in not forcing the State to produce the affiant on the complaint for a search warrant at the trial, that he was not proved guilty beyond a reasonable doubt, and that his sentence was excessive.
The search warrant was issued on October 28, 1967, and provided for a search of the person and the premises at the headquarters of the Afro-American Student Association, located at 3856 S. Pаrkway in Chicago. It was not served until the next day, October 29, because the police had learned that Harvey was not present at the Association office but that he was expected the next day. When the police did approach the office they wеre met by a young lady, and upon identifying themselves, they were admitted. According to the police the warrant was presented to Harvey and he read it in the presence of four other men. The officers, accompanied by Harvey, searched the premisеs consisting of three small rooms. In one of the rooms they found boxes and bags of old, dirty clothes and shoes and on the wall, hanging on hangers, a trench coat and several clean shirts. They testified that they asked Harvey whether the trench coat and clean shirts were his and he stated that they were. He was also asked about the clothing in the boxes on the
Harvey testified that he was a member of the Association and that the clothing in question was being collectеd by the Association members in a clothing and fund drive. He stated that when the officers entered they identified themselves, asked everyone to have a seat, and presented him with the warrant which he read. He was not told he was under arrest but he said he thought he was treated аs if he were. He was not told that he was free to go. He denied stating that the trench coat belonged to him and stated it was a small lady‘s coat which had been collected in the drive. He stated that before the police said they found the marijuana he had responded to their questions about the clothes but only to the effect that he was responsible for all of them as co-ordinator of the drive.
The officers testified that the coat looked to be about Harvey‘s size but it was not inventoried and its whereabouts at the time of trial was unknown, and that Harvey did not wear a coat to the police station. Pictures were introduced showing him without a coat at the station and the others with different types of outer apparel. Harvey stated that he wore a coat to the station but had left it in his cell when the pictures were taken.
From these facts we find that the execution of the search warrant was in compliance with
Harvey next contends that the affiant in the complaint for the search warrant should have been made avаilable to him as his witness at the trial on the merits, as the witness might have been able to exculpate him. He cites Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623, and a number of other cases to the effect that fundamental fairness demanded the presence of affiant at the trial. But unlike the facts in Roviaro, the affiant herе merely appeared before the judge who issued the search warrant. He was not present at the time the warrant was served nor at Harvey‘s arrest. Whether he would have been able to identify Harvey as the individual he described in his complaint would relate only tо the question of probable cause for the
Finally, defendant Harvey contends that he was not proved guilty beyond a reasonable doubt and that his sentence was excessive. After a careful review of the evidence, we find it fully sufficient to suрport the jury‘s verdict and not, as he contends, so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt warranting our interference on review. (People v. Mack, 12 Ill.2d 151.) Likewise, we find no abuse of discretion on the part of the trial court in the imрosition of sentence. Defendant Harvey was afforded a fair and complete hearing in aggravation and mitigation and his punishment was well within the statutory limits. Under such circumstances the trial court was in a far superior position than we to make a sound determination сoncerning the punishment to be imposed. People v. Taylor, 33 Ill.2d 417.
For the reasons stated the judgments of the circuit court of Cook County in each of the cases here reviewed, People v. Stansberry, People v. Hatch, and People v. Harvey, are hereby affirmed.
Judgments affirmed.
Mr. JUSTICE SCHAEFER, dissenting:
In my opinion the evidence does not establish the guilt of the defendant, James Harvey, beyond a reasonable doubt.