City of Kewanee v. Puskar
| Decision Date | 18 April 1923 |
| Docket Number | No. 14737.,14737. |
| Citation | 139 N.E. 60,308 Ill. 167 |
| Parties | CITY OF KEWANEE v. PUSKAR. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to City Court of Kewanee; H. Sterling Pomeroy, Judge.
Action of debt by the City of Kewanee against Mike Puskar. Judgment for plaintiff, and defendant brings error. Judgment affirmed as to four counts of the declaration, and reversed as to the remaining seven counts.
James N. Cummings, of Kewanee, for plaintiff in error.
Charles E. Mulligan, City Atty., of Kewanee, for defendant in error.
The city of Kewanee filed a declaration in debt in the city court of Kewanee against Mike Puskar, plaintiff in error, herein referred to as defendant. The declaration as finally amended contained eleven counts. The first count charged the defendant with suffering a nuisance to exist on June 5, 1920, within the corporate limits of the city, by knowingly permitting certain premises owned by him to be used as a boarding house or rooming house within which intoxicating liquor was kept for sale as a beverage, in violation of section 5 of article 3, chapter 17, of the Revised Ordinances of the City of Kewanee, known as Ordinance No. 664. Each of the other ten counts charged that the defendant, within the corporate limits of said city, did sell and keep for sale intoxicating liquor, in violation of section 1 of article 3 of Ordinance No. 664. The demand in each and every count was for the sum of $200, and the ad damnum was laid in the sum of $4,000. The defendant filed a plea of nil debet, upon which issue was taken. The jury returned a verdict in favor of the city on every one of the eleven counts, and assessed the defendant's fine or penalty in the sum of $100 on every count. Motions for a new trial and in arrest of judgment were overruled by the court, and judgment was rendered against the defendant on the verdict for the sum of $100 on every one of the eleven counts and for costs of suit. The trial judge certified that the validity of an ordinance was involved, etc., and a writ of error was sued out of this court by the defendant to review the judgment.
Section 5 of the ordinance, which is set out in haec verba in the first count of the declaration, provides, in substance, that whoever knowingly permits any building or premises, or any part thereof, situated within the corporate limits of said city and owned or leased by him or under his control, to be used for the purpose of maintaining or keeping any clubroom or other place in which intoxicating liquor or spirituous, malt or fermented liquor, or any drinks which contain any spirituous, vinous of fermented liquor, is received or kept for the purpose of use, gift, barter, exchange, or sale as a beverage, or for distribution or division among the members of any clubroom or association, or to be used within which to sell, give away, or to take orders for the sale or the delivery of any intoxicating liquor, or any spirituous, vinous, malt, or fermented liquor, or any drinks which contain spirituous, vinous, malt, or fermented liquor in any quantity whatsoever, shall be deemed guilty of suffering a nuisance to exist, and upon conviction thereof shall forfeit and pay to the city not less than $50 nor more than $200 for each and every day that he shall permit any such building or premises, or any part thereof, to be used for such purpose. Section 1 of the ordinance prohibits any one from directly or indirectly selling or keeping for sale, barter, exchange, or giving away in any manner, by himself or another, as principal, clerk, agent, or servant, within the corporatelimits of the city, of any intoxicating liquor, or spirituous, vinous, malt, or fermented liquor, for drinks, or any mixture of said liquors which contains spirituous, vinous, malt, or fermented liquor in any quantity. Section 10 of the ordinance provides a penalty or fine of not less than $25 nor more than $200 for the first offense under section 1, and if any person or corporation shall be convicted of violating said section, and shall subsequently violate the provisions thereof, he shall upon conviction thereof be fined not less than $50 nor more than $200.
The evidence produced at the trial showed that the defendant and his wife were the owners of a house in the city of Kewanee located at 517 West Fourth street, and that he and his family resided in another house, the back yard of which was very close to the rear of the premises on Fourth street. In the house on Fourth street a copper still was found by the police, and also four barrels of fermenting raisings, one barrel of prune mash, a couple of tubs of juice, and several jugs and kegs of raisin whisky and some prune whisky. The police officers had found the defendant in the back yard of his residence premises provious to entering the Fourth street premises, and the defendant volunteered to go with the officers and search the Fourth street premises for whisky, etc., after they had informed him that they had good reason to believe that the premises contained whisky and a still, and that illegal business was being conducted in those premises. Therefore no question can arise on this record as to the incompetency or impropriety of any evidence being admitted in violation of the defendant's rights against unlawful search and seizure. If there had been an unlawful search and seizure, and exhibits had been introduced that were seized against his constitutional rights, those questions could not be raised upon an objection to the evidence on the trial, as no preliminary hearing had been had on the question of unlawful search and seizure. People v. Brocamp (No. 14869) 138 N. E. 726.
The evidence in the record is to the effect that the defendant was thoroughly cognizant of the fact that the unlawful business of distilling and selling whisky was conducted in the Fourth street premises. The proof showed that he made three sales of whisky in the months of May and June, 1920, and that he was present in that place when a number of other sales were made by other parties. The proof also showed that the defendant was seen in the premises working on the still and trying to mend it by soldering certain parts thereof. The defendant denied about everything of which he was accused, but he is so thoroughly impeached that no attention need be paid to his testimony; he being his sole witness in the matters wherein he was contradicted.
It is abundantly shown by testimony of the parties...
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