City of Peoria v. Henderson

• Decision Date: 30 June 1976
• Docket Number: No. 75--6,75--6
• Citation: 350 N.E.2d 540,39 Ill.App.3d 762
• Parties: The CITY OF PEORIA, Illinois, a Municipal Corporation, and the People of the State of Illinois, v. Hanson HENDERSON et al.
• Court: United States Appellate Court of Illinois

Page 540

350 N.E.2d 540

39 Ill.App.3d 762

The CITY OF PEORIA, Illinois, a Municipal Corporation, and the People of the State of Illinois, v. Hanson HENDERSON et al.

No. 75--6.

Appellate Court of Illinois, Third District.

June 30, 1976.

Emmett Lally for appellant; Howard Thomas, Peoria, of counsel.

Michael W. Heller, Peoria, of counsel, for appellee.

STOUDER, Presiding Justice.

In the circuit court of Peoria County Hanson Henderson and several other persons were charged with violating gambling ordinances of the City of Peoria. (Peoria Circuit Court Case Numbers 74 OV 4680--4681--4687--4697--4700--4701--4703, combined in the Appellate Court as Case Number 75--6). Pursuant to leave granted, this appeal was briefed and argued with Appellate Court Case Number 75--94, the latter case having grown out of the same gambling raid but involving only state statute violations. However, the cases pending on review will be discussed and decided individually. The decision in the trial court was in favor of the defendants and the City has appealed.

With respect to the appeal by the City of Peoria from the adverse ruling on the ordinance violation charges, no question is presented concerning the propriety of the City's right to appeal since the proceedings are considered to be essentially civil in nature and only quasi-criminal. Village of Maywood v. Houston, 10 Ill.2d 117, 139 N.E.2d 233. In the ordinance violation proceeding the testimony of the police officers who conducted the raid was heard by the trial court sitting without a jury. At the close of the City's case the defendants moved for judgment in their favor. Their motion was granted.

Since there was no transcript of proceedings the evidence presented to and considered by the trial court has been presented to this court on a stipulation of facts. According to the evidence, during the early hours of September 8, 1974, armed with a warrant, the police vice and drug bureau conducted a raid on the Veteran's Club, a social establishment. Gaining entry to the club by following patrons, the officers proceeded through what was described as a dining and dancing room into the rear room of the club. Upon entering the rear room, the floor space of which was concededly smaller than the space used for dining and dancing in the front of the establishment, the police found a pool table which had a cord tied across it and on one end of which was a felt cloth with numbers on it. The police also discovered dice, money and playing cards. Inside the room the police ordered the persons found therein to place themselves against the wall so they could be searched. Testimony at trial by one police officer was that when they entered the room 'a hand' was 'throwing dice.' The same officer also testified 'another hand' grabbed a quantity of currency from the table and the person 'disappeared' in the direction of a corner of the room. There was no identification as to whose hand threw the dice or grabbed the money. The persons who were in the so-called back room were issued notices to appear in court. Subsequently they pleaded not guilty. There was no testimony concerning the activities or conduct of any of the defendants at or before they were arrested in the back room and there is no testimony concerning the relationship, if any, of the defendants to any of the activities going on in the back room or to the equipment located there.

On this appeal the plaintiff City argues the trial court erred because: (1) municipalities may prohibit persons from patronizing gambling houses; (2) evidence as to whether a place is a gambling place is, per se, circumstantial; (3) patronization of a gambling house may be shown without showing the establishment is used primarily for gambling purposes. From the briefs of the parties it appears there is no dispute concerning the power of the municipality to enact the ordinance involved and it is not disputed that violations of the ordinance may be proved...