People v. Chatman

• Decision Date: 29 September 1967
• Docket Number: No. 40306,40306
• Citation: 230 N.E.2d 879,38 Ill.2d 265
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Rosalie CHATMAN, Appellant.
• Court: Illinois Supreme Court

Page 879

230 N.E.2d 879

38 Ill.2d 265

The PEOPLE of the State of Illinois, Appellee, v. Rosalie CHATMAN, Appellant.

No. 40306.

Supreme Court of Illinois.

Sept. 29, 1967.

Rehearing Denied Nov. 27, 1967.

Geter & Geter, Chicago (Howard D. Geter, Sr., and Howard D. Geter, Jr., Chicago, of counsel), for appellant.

William G. Clark, Atty. Gen., Springfield, and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and James S. Veldman, Asst. State's Attys., of counsel), for appellee.

KLUCZYNSKI, Justice.

Defendant, Rosalie Chatman, was indicted in the circuit court of Cook County for the crime of gambling. (Ill.Rev.Stat.1965, chap. 38, par. 28--1(a)(8)). Her pretrial motions to bar her prosecution because of former jeopardy, to quash the search warrant, and to suppress evidence were denied. She waived jury trial, was convicted and fined $1,000.

The evidence adduced established that on September 1, 1965, Chicago Police detective Robert Beavers appeared before one of the judges of the circuit court of Cook County and swore out a complaint for a search warrant for a certain described woman and the premises located at 4620 S. Evans Avenue in Chicago. The complaint stated that on August 31, 1965, an informant who had proved reliable in the past told Beavers that he could make policy bets in the basement apartment at the Evans Avenue address. As a result of this 'tip', Beavers commenced a surveillance of the premises and counted eleven persons entering and leaving in a period of some forty-five minutes. Later that day Beavers searched the informer and found that he had neither money nor any policy paraphernalia upon his person. He gave the man one dollar and saw him enter the premises and return later with bet and result tickets for four of the city's better known policy wheels. These tickets were attached as exhibits to the complaint. As a result of this complaint a warrant issued describing the premises to be searched and the woman who had taken the informant's wager.

Pursuant to this warrant, Beavers and several other officers went to the Evans Avenue address, knocked and were admitted by Jimmy Ruffin. Defendant was found in the apartment seated at a table which was covered with policy result tickets, pads, various other forms of writing and a sum of United States currency. She was arrested and charged with violating section 28--1(a)(8). A hearing was had before a magistrate resulting in her being held to the Cook County grand jury and indicted.

At trial on the indictment, defendant presented no evidence, apparently relying upon her pretrial motions to bar the action because of alleged former jeopardy, quash the search warrant and suppress evidence. From their denial and her resultant conviction she appeals, contending that these motions were improperly overruled, that she was not proved guilty beyond a reasonable doubt, and that the court lacked jurisdiction to impose the $1,000 fine.

Defendant's contention that the prosecution on the indictment was barred by former jeopardy is premised on her claim that the magistrate had authority to dispose of her case, and that the hearing before him constituted such trial on the issue of her guilt as to place her in jeopardy for the offense charged.

We consider first defendant's claim that the magistrate had authority to dispose of her cause. Section 8 of article VI of the Illinois constitution, S.H.A. provides that the General Assembly 'shall limit or define the matters to be assigned to magistrates.' Section 4 of the act Ill.Rev.Stat.1965, ch. 37, § 624, relating to magistrates provides that criminal and quasi-criminal proceedings are assignable to magistrates: '(a) misdemeanor and quasi-criminal actions in which the maximum punishment authorized by law does not exceed a fine of $1,000 or imprisonment for one year in the county jail or municipal house of correction, or both; * * * (d) proceedings for the preliminary examination to determine probable cause * * *.' The penalty prescribed for an offense is therefore determinative of the magistrate's authority for disposition.

Some confusion is occasioned here, however, since the legislature in its 1965 session passed two amendments to section 28--1 of the Criminal Code (Ill.Rev.Stat.1963, chap. 38, par. 28--1, one on April 21, the other on April 23. The first amendment (House Bill No. 274, approved April 21, 1965) changed only the penalty provision of section 28--1, subsection (c) which had provided that 'A person convicted of gambling shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.' The amendment prescribed that 'A person convicted of gambling under any of subsections (a)(3) through (a)(10) of this Section shall be fined not to exceed $5,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 5 years, or both fined and imprisoned.' The second amendment (House Bill No. 148, approved April 23, 1965) repeated the old provisions of section 28--1 but amended subsection (a)(5) and added a new subsection (d), providing that 'circumstantial evidence be given the same validity and weight' in prosecutions under section 28--1 'as in any criminal prosecution.' Since the second amendment left the penalty provisions of section 28--1 unchanged, it is defendant's contention that this amendment, being later in time, repealed the new penalty provisions set forth in the first amendment.

In People ex rel. Martin v. Village of Oak Park, 372 Ill. 488, at p. 490, 24 N.E.2d 571, 572, we stated: 'A general rule of construction is that if an act or section of an act be amended, and the amendment does not entirely repeat the original act or section, such portions not repeated are repealed without any specific expression for that purpose. The omitted portion cannot be legislated into existence by judicial construction. The portions of the old act or section retained, either literally or substantially in the amendment, are regarded as a continuation of the old law and not a new enactment. (Citing cases.) Another well-recognized rule which should be used in construing both amendatory acts of 1935 is that two acts passed at the same session of the legislature are not to be construed as...