27 N.E. 1085 (Ill. 1891), Gindrat v. People

Citation:27 N.E. 1085, 138 Ill. 103
Opinion Judge:BAKER, J.
Party Name:GINDRAT et al. v. PEOPLE. [1]
Attorney:[138 Ill. 104] Wing, Stough, Carter & Qualey, for plaintiffs in error. [138 Ill. 105] George Hunt, Atty. Gen., for the People.
Case Date:June 15, 1891
Court:Supreme Court of Illinois
 
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Page 1085

27 N.E. 1085 (Ill. 1891)

138 Ill. 103

GINDRAT et al.

v.

PEOPLE. 1

Supreme Court of Illinois

June 15, 1891

Error to criminal court, Cook county; JOHN P. ALTGELD, Judge.

Indictment for larceny. Defendants were convicted, and they bring error. The instructions referred to in the opinion read as follows: '(7) The court instructs you that no circumstance introduced in evidence on this trial can be used by you as a basis for any inference of guilt against the defendants, or either of them, unless such circumstance is first proven to your entire satisfaction; and every circumstance in the case which is not proven to your entire satisfaction should be wholly dismissed from your consideration, and must not be permitted to influence you to any extent against the defendants, or either of them. Any circumstance which is essental to a conclusion of guilt against the defendants, or either of them, should be established beyond all reasonable doubt, and to a moral certainly, before it can be used by the jury against the defendants.' '(11) The court instructs the jury that the burden of proving everything essential to the establishment of the charge against the defendants, and each of them, lies on the prosecution, and even if it were conceded that somebody stole a diamond ring from the prosecuting witness, Gilman, yet the defendants, John Gindrat and George Brown, are not required nor expected to prove who, if any one, committed the larceny.'

BAILEY, J., dissenting.

[138 Ill. 104] Wing, Stough, Carter & Qualey, for plaintiffs in error.

[138 Ill. 105] George Hunt, Atty. Gen., for the People.

BAKER, J.

In the criminal court of Cook county the plaintiffs in error, John Gindrat and George Brown, were indicted and tried for the larceny of a diamond ring. Upon conviction each of them was sentenced to imprisonment in the penitentiary for a term of four years. The evidence introduced by the prosecution tended to prove that about 4 o'clock in the afternoon of May 14, 1890, the plaintiffs in error went into the place of business of Charles Gilman, a jeweler at No. 124 North Clark street in the city of Chicago, and asked to see some rings; that three trays containing rings were placed by Gilman on the show-case before them; and that they feloniously abstracted from one of the trays a diamond ring of the value of $125, and substituted in its place an imitation of a diamond ring, worth about 25 cents, and then left the premises without making any purchase. The court at the trial permitted the prosecution to show, over the objections of plaintiffs in error, by one De Sell, a police officer, that, about 10 o'clock in the night of said May 14th, he, said De Sell, dressed in citizen's clothes, and acting as a [138 Ill. 106] detective, and without authority from any one, and having no search-warrant, went to the rooms occupied by Brown and Gindrat and his wife at the corner of Washington and May streets, and searched everything in said rooms, and in a small valise found two imitation diamond scarf-pins; and also over like objections permitted said cheap imitation jewelry to be given in evidence to the jury. It is urged by plaintiffs in error that this action of the court was a violation of section 6 of article 2 of the constitution of the state of Illinois, which reads as follows: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause, supported by affidavit

Page 1086

particularly describing the place to be searched, and the persons or things to be seized;' and also a violation of the provision in section 10 of the same article of the constitution, that 'no person shall be compelled in any criminal case to give evidence against himself.' In response to this claim our attention is called to the decision of this court in Spies v. People, 122 Ill. 1, 12 N.E. 865, and 17 N.E. 898, and the decision of the supreme court of the United States in Spies v. Illinois, 123 U.S. 131, 8 S.Ct. 21, 22.

The question here at issue did not arise upon the record before the courts in that case, and consequently could not have been, and was not, decided. This court there said on page 233 of the official report of the case, and on page 978, 12 N.E. Rep.: 'The objection that the letter was obtained from the...

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