delivered the opinion of the court:
The defendant Jimmy Williams, alias Kid Rivera, was convicted in a bench trial in the circuit court of Cook County on two counts of gambling. He was sentenced to six months in the county jаil and fined $1,000 on each count, the jail sentences to run concurrently and the fines to be cumulative. Defendant appeals directly to this court alleging, among other things, a violation of his constitutional rights by reason of an illegal search and'seizure.
At about 5 A.M. on April 19, 1964, Illinois State police officers, armed with a warrant аuthorizing the seizure of numerous pairs of dice and a large table utilized for a dice game from the first floor of a building at 4025 West 18th Street in Chicago, entered the prеmises and found defendant and 33 other people standing around a dice table and a bar. Defendant and others were arrested and the arresting officers seized the dice table, dice (some- with the number 4025 on them), playing cards, policy slips, and business cards imprinted with “Kid —
A four-count indictment was returned against defendant.. Count I charged him with keeping a gambling device, a dice table, in violation of section 28 — 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1963, chap. 38, par. 28 — 1 (a) (3) -) Count II made the same charge as I and also alleged a previous conviction on April 17, 1958, as a keeper of a gambling house in violation of section 127 of division I of the Criminal Code. (Ill. Rev. Stat. 1957, chap. 38, par. 325.) The third count alleged that defendant kept a gambling place at 4025 W. 18th Street, Chicago, Illinois, in violation of section 28 — 3 of the Criminal Code of 1961. (Ill. Rev. Stat. 1963, chap. 38, pаr. 28 — 3.) Count IV alleged the same offense as in III and also alleged the same previous conviction as in count II. Conviction of a subsequent offense carries а more severe penalty than a first conviction.
Prior to trial defendant filed a motion to quash all four counts. The trial court held that the enhanced penаlty provisions for subsequent offenders found in paragraphs 28 — 1 and 28 — 3 were inapplicable where the prior conviction charged in the indictment predated thе effective date of the present criminal code, January 1, 1962. The court thereupon quashed counts II and IV for that reason. On motion of the State the cause was stricken with leave to reinstate, and a notice of appeal was filed pursuant to section 120 — 1 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1963, chаp. 38, par. 120 — 1.) The Appellate Court, First District, Second Division, reversed the order quashing counts II and IV and remanded with directions to reinstate those counts. (Peoplе v. Williams,
Defendant first contends that the seаrch warrant should have been quashed and the evidence obtained suppressed. He argues that the complaint for the warrant was insufficient because it was based on unreliable hearsay statements of an informer. The complaint for the search warrant recites that two informers, who had furnished reliable information in the past, advised the complainant that on March 31, April 8, 12, 13, and 15, 1964, they had witnessed dice games around a large covered table on the first floor of the building located at 4025 W. 18th Street, that they had participated in wagering at the dice table on these occasions, and that these games were frequented by numerous рatrons. The complainant also stated that on March 17, 1964, he observed known gamblers enter the building and stay for long periods of time.
The question here again pоsed is whether hearsay evidence is sufficient to establish probable cause for the issuance of a search warrant. Following a decision of the Supreme Court (Jones v. United States,
Defendant also argues that the trial court erroneously admitted into evidence items which were obtained as a result of the search, but which were not mentioned in the search warrant. He further contends that the items not mentioned in the warrant, namely, the records, playing cards, business cards, and telephone bill, were merely seized for evidentiary purposes and could not be seized even under a valid search warrant. The State, on the other hand, argues that the items objected to were obtained as a result of a search incident to a lawful arrest, and that they were proper objects of a search and seizure as items used in a criminаl enterprise.
It is well established that defects in a search warrant are immaterial if the search can be otherwise justified. (People v. Brinn,
Defendant next contends that he cannot be penalized as a subsequent offender under section 28 — 1 or 28 — 3 (Ill. Rev. Stat. 1965, сhap. 38, par. 28 — 1, 28 — 3,) for the reason that his earlier conviction for keeping a gambling house was prior to the effective date of the Criminal Code of 1961, January 1, 1962. He argues that the court must give a retroactive interpretation to sections 28 — 1 and 28 — 3, contrary to legislative intent, in order to sentence him as a subsequent оffender. As noted earlier, this same question was presented to the Appellate Court, First District, in People v. Williams,
Defendant’s final contention is that the State failed to prove him guilty beyond a reasonable doubt. It is well established that we will not disturb the findings of the trier of fact аnd substitute our own conclusions unless the proof is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. (People v. Boney, 28 Ill.sd 505; People v. Means,
The People point out that defеndant was convicted on count IV as a subsequent offender under section 28 — 3 which provides for a $1000 fine or imprisonment “in the penitentiary from one to three years, or both,” but that the trial court sentenced him to six months in jail and imposed a fine of $1000. They suggest that we regard this six-month jail sentence as a nullity. It is so considered and is vacated.
The judgment of the circuit court of Cook County, as modified, is affirmed.
Judgment modified and affirmed.
Mr. Justice Ward took no part in the consideration or decision of this case.