Gindrat v. People

Decision Date15 June 1891
Citation138 Ill. 103,27 N.E. 1085
PartiesGINDRAT et al. v. PEOPLE.
CourtIllinois Supreme Court
OPINION TEXT STARTS HERE

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.

Wing, Stough, Carter & Qualey, for plaintiffs in error.

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 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 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. Rep. 865, and 17 N. E. Rep. 898, and the decision of the supreme court of the United States in Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. Rep. 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 defendants by an unlawful seizure is made for the first time in this court. It was not made on the trial in the court below. Such an objection as this, which is not suggested by the nature of the offered evidence, but depends upon the proof of an outside fact, should have been made on the trial. The defense should have proved that the Most letter was one of the letters illegally seized by the police, and should then have moved to exclude it, or opposed its admission on the ground that it was obtained by such illegal seizure. This was not done, and therefore we cannot consider the constitutional question supposed to be involved.’ And the supreme court of the United States, in the opinion delivered by Chief Justice WAITE, said. ‘Something was said in the argument about an illegal, unreasonable search and seizure of the papers and property of some of the defendants, and their use in evidence on the trial of the case. Special reference is made in this connection to the letter of Most about which Spies was cross-examined; but we have not been referred to any part of the record in which it appears that objection was made to the use of this evidence on that account. * * * The question whether this letter, if obtained in the manner alleged, would have been competent evidence, is not before us.’ Plaintiffs in error cite, in behalf of their contention on this point, the cases of Entick v. Carrington, 19 How. State Tr. 1029, and Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524. Entick v. Carrington, in which Lord CAMDEN delivered his celebrated opinion, which is regarded as one of the permanent monuments of the British constitution, was an action of trespass for entering the plaintiff's dwelling-house in November, 1762, and breaking open his desks and boxes, and searching and examining his papers. The attempted justification was by virtue of a search-warrant which was different from that which had been in question in the prior case of Wilkes, 19 How. State Tr. 982, since it specified the name of the person against whom it was directed, but in respect to papers it was a general search-warrant, not specifying any particular papers to be seized, and giving authority to take all books and papers of the party named, at discretion. The warrant was held invalid; but manifestly the question whether the papers illegally seized were competent testimony against Entick in a prosecution for crime did not arise. The provisions of our state constitution above quoted are copied almost literally from articles 4 and 5 of the amendmentsto the constitution of the United States. Boyd v. U. S., supra, was an information against 35 cases of polished plate glass, for their forfeiture on account of their fraudulent entry and importation; and A. E. Boyd & Sons were the claimants. On the trial of the cause it became important to show the quantity and value of the glass contained in 29 cases previously imported. To do this the district attorney offered in evidence an order made by the district judge under section 5 of the act of June 22, 1874, directing notice under seal of the court to be given to the claimants, requiring them to produce the invoice of the 29 cases. The claimants, in obedience to the notice, but objecting to its validity and the constitutionality of the law, produced the invoice, and, when it was offered in evidence, objected to its reception on the ground that in a suit for forfeiture no evidence can be compelled from the claimants themselves, and also that the statute, so far as it compels production of evidence to be used against the claimants, is unconstitutional and void. The court held that the proceeding was a ‘criminal case,’ within the meaning of that part of the fifth amendment which declares that no person ‘shall be compelled in any criminal case to be a witness against himself;’ that the seizure or compulsory production of a man's private papers, to be used in evidence against him, is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty, or forfeiture, equally within the prohibition of the fifth amendment; and that when the thing forbidden in the fifth amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is ‘an unreasonable search and seizure’ within the fourth amendment; and the conclusion of the court was that the notice...

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