People v. Brocamp
| Citation | 307 Ill. 448,138 N.E. 728 |
| Decision Date | 05 April 1923 |
| Docket Number | No. 14869.,14869. |
| Parties | PEOPLE v. BROCAMP. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Peoria County; Theodore N. Green, Judge.
Earl Brocamp was convicted of receiving stolen property, and he brings error.
Reversed and remanded.George W. Sprenger, of Peoria, for plaintiff in error.
Edward J. Brundage, Atty. Gen., Ernest J. Galbraith, State's Atty., of Peoria, Edward C. Fitch, of Springfield, and Irwin L. Fuller, of Peoria, for the People.
Earl Brocamp, plaintiff in error, was convicted in the circuit court of Peoria county for receiving stolen property of the value of $50 knowing the same to be stolen, and his age was found to be 31 years. The indictment contained two counts, the other count charging grand larceny. Motions for new trial and in arrest of judgment were overruled by the court, and he was sentenced to serve an indefinite term in the penitentiary.
About the 4th of December, 1921, a garage of Leroy Burr, in the city of Peoria, was burglarized and eleven automobile tires, an electric drill, three wrenches, one bolt cutter, and a box of pump packing were taken therefrom. On December 8, 1921, an investigator from the state's attorney's office and several deputy sheriffs went to the cottage of plaintiff in error, known as the ‘White House,’ located in Peoria county on the bank of the Illinois river, and facing a public road known as the Galena road. He had rented this cottage October 1, 1921, and was living in it with his family. The river at this point runs in a northeasterly and southwesterly direction, and the Galena road runs parallel thereto and adjacent to a very high bluff, and on a level with a single-track electric street car line on the southerly side thereof. Adjacent to the river side of the street car track and at a distance of several feet below the level is the right of way and single track of the Chicago, Rock Island & Pacific Railroad Company. This right of way is used by the occupants of the summer cottages along the river there as a passageway, with crossings placed at various points from the public road across the street car and railroad tracks to the cottages. Adjacent to the river side of the railroad track is a strip of ground about 18 feet in width, which at the entrance to the White House is on a level with the floor of the porch, and is reached by means of a wooden bridge. At the river side of this strip of ground there is a drop of approximately 15 feet to the sand upon which the house itself is built, and from the rear of the cottage to the river is a sandy beach. The White House consists of approximately two stories. The first floor is built below the level of the 18-foot strip of ground lying immediately in front, and is used as a kitchen and a storeroom, and the second floor is on a level with the 18-foot strip, and has a room and sleeping quarters, the latter being directly over the kitchen and storeroom, and the living room extends beyond the front wall of the kitchen a distance of 12 feet toward the embankment at the front. A porch six feet in width extends across the front of the cottage, connected with the ground in front by the wooden bridge, with stairs leading down to the kitchen on the side of the house. To the southwest of this cottage about 20 feet is another cottage, known as the ‘Buena Vista,’ of practially the same construction as the White House, and connected therewith by a wooden bridge or walk. Beneath the living room of the White House, and parallel with the public road is an areaway formed on the river side by the front wall of the kitchen, on the road side by the earth wall or embankment,and overhead by the floor of the living room. This areaway is open at both ends, so that it is possible to see in a northeasterly and southwesterly direction through the same, and a person can walk through it in a crouching position. The White House was occupied by plaintiff in error and his family from October 1, 1921, to December 8, 1921, while the Buena Vista was occupied by his stepson, Robert Slagle. Within this areaway were piled some old lumberused for kindling, a quantity of soft coal, and also a piece of an old railroad tie which was used as a chopping block. The soil within this areaway is composed mostly of sand, with some cinders and ashes, and around the chopping block were wooden chips and splinters. While the investigator and the officers were examining the areaway, one of them noticed a hollow sound while they were walking near the chopping block. They removed about six inches, of the top soil, and discovered a box, which, on being removed, was found to be about 4 fee wide, 7 feet long, and 4 feet deep. It was found directly under the living room of the cottage, with one side almost against the front wall. Upon the sand covering the lid of the box was the old railroad tie used as a chopping block and an ax. On being opened the box was found to contain eleven automobile tires, which were taken to the sheriff's office, and plaintiff in error was arrested and was charged with their theft. Afterwards the officers returned to the White House and searched it, and found therein two wrenches, a bolt cutter and a box of pump packing, all of which were claimed by plaintiff in error as owner. The tools were found in a tool box in the kitchen, and on the trial he introduced witnesses who testified that he had these in his possession before Burr's garage was burglarized. All of the articles found on the premises, except a few of the tires that were not well identified by Burr as his property, were introduced in evidence as exhibits before the jury. Burr claimed to be able to identify the tools as his property because of his familiarity with them, and because of certain parts being broken off of the bolt clipper. Plaintiff in error disclaimed being the owner of the tires, and also disclaimed all knowledge of them and as to how they came there. His evidence tended to show that the passageway under his house was used somewhat by the public in traveling by his house. Other families had occupied the White House before he rented it.
When this case was called in the circuit court plaintiff in error by his attorney made a motion to quash the indictment, which was overruled. He then made a motion in writing, verified by affidavit, asking for the return of all the property claimed by him and taken from his cottage by the officers, and stated that the state's attorney intended to use said property as evidence on the trial. It was further stated in the affidavit that the property was taken from his house unlawfully, and without any warrant or authority for the search and seizure, and that the doors were forced open and the property seized in violation of his rights guaranteed by the state and federal Constitutions, and that the state's attorney retained his property and refused to return it to him, and intended to use it for the unlawful purpose aforesaid. The court denied the motion, and refused to give the defendant any hearing whatever upon his motion. Upon being arraigned he pleaded not guilty, and again renewed his motion aforesaid, which was denied. The cause proceeded to trial, and during the trial, when the wrenches, bolt cutter and pump packing were introduced in evidence, he again objected to the evidence on the ground that they were his property, and that his constitutional rights were being invaded. At the close of all of the evidence he again renewed his motion to exclude the exhibits, but the court denied all of his motions, and overruled the objections. At the beginning of the trial plaintiff in error also made a motion asking that the state's attorney be compelled to elect upon which count of the indictment he would proceed. This motion was denied, and he has assigned errors upon said rulings.
The Fourth Amendment to the federal Constitution provides:
‘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 warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be...
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