People v. Clark
| Decision Date | 23 October 1917 |
| Docket Number | No. 11414.,11414. |
| Citation | 117 N.E. 432,280 Ill. 160 |
| Parties | PEOPLE v. CLARK. |
| Court | Illinois Supreme Court |
Error to Kankakee County Court; J. H. Merrill, Judge.
Nellie Clark was convicted of crime, and sues out a writ of error on the ground that a constitutional question is involved. Reversed.
E. P. Harney, of Momence, for plaintiff in error.
Edward J. Brundage, Atty. Gen., Wayne H. Dyer, State's Atty., of Kankakee, and C. W. Middlekauff, of Freeport, for the People.
On February 5, 1917, an information containing six counts was filed in the county court of Kankakee county by the state's attorney of that county, the first three counts charging plaintiff in error and one Flanigan with keeping a house of ill fame, and the last three counts charging them with being inmates of a house of ill fame. The information was not sworn to by any person, and there was no affidavit by any one as to the truth of the charges in said information. Upon the filing of the information the court ordered that a capias be issued for said defendants, returnable forthwith, and such a capias was issued and given to the sheriff of the county, who arrested the defendants on said capias the same day, and the court admitted them to bail and set their case for hearing on the 15th day of February following. On that date the defendants by their attorney moved to quash the information and each count thereof, which motion was overruled. They also made a motion to require the state's attorney to elect whether he would ask for a conviction upon the first three counts or the last three counts of the information, on the ground that they charged separate and distinct offenses, which motion was also overruled. The defendants were then arraigned, pleaded not guilty, and were put upon trial before a jury. After the evidence was in, the motion to require the state's attorney to elect on which counts he would ask for a conviction was renewed and overruled, and the first three counts of the information were dismissed as to the defendant Flanigan. The case was submitted to the jury upon all the counts as to plaintiff in error, and upon the last three counts as to Flanigan, and a verdict was rendered finding plaintiff in error guilty in manner and form as charged in the first, second, third, fourth, fifth, and sixth counts of the information and finding defendant Flanigan not guilty. A motion by plaintiff in error to set aside the verdict and for a new trial was, upon hearing, denied. Thereupon the plaintiff in error made a motion in arrest of judgment on the ground that the court erred in not compelling the state to elect whether it would ask for a conviction upon the first three counts of the information or upon the last three counts, for the reason that the first three counts and the last three counts of the information charged separate and distinct offenses and required punishments of a different nature, and on the further ground that the court erred in refusing to quash the information for the reason the same was not sworn to, contrary to the Fourth Amendment to the Constitution of the United States, which is 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, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
Also that the court erred in refusing to quash the information, upon motion, for the further reason that said information was not verified, in that it was not sworn to, contrary to section 6 of article 2 of the Constitution of the state of Illinois, which is 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 warrants shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.’
The motion in arrest of judgment was overruled, and the court sentenced the plaintiff in error to pay a fine of $200 on each count of the information and to serve one year in the county jail on the fourth, fifth, and sixth counts of the information, the imprisonment under the fifth count to begin at the expiration of imprisonment under the fourth count and the imprisonment under the sixth count to begin at the expiration of the imprisonment under the fifth count, and that she be confined in the county jail until the fine and costs should be fully paid. The plaintiff in error has sued out a writ of error from this court on the ground that a constitutional question is involved.
Numerous errors have been assigned on the record, but the only ones argued and which we will consider are the refusal of the court to quash the information for the reason that it was not sworn to, and in issuing the warrant for the arrest of the plaintiff in error and holding her thereunder for trial when such warrant or capias was not based on an affidavit, in contravention of the provisions of the Constitutions of the United States and of this state above set out.
The plaintiff in error was prosecuted under section 117 of the County Court Act (Hurd's Stat. 1916, c. 37, § 207, p. 804), which provides as follows:
As to whether this section is in contravention of section 6 of our Bill of Rights has never been squarely passed on in this state. In Myers v. People, 67 Ill. 503, an information filed in the county court was not sworn to, but was filed by the state's attorney pursuant to the sworn complaint of another, and upon the filing of the sworn complaint the court granted leave to the state's attorney to file the information. In that case the court said (67 Ill. 510) in the opinion:
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...of the [s]tate's attorney any more than on the unsworn complaint of a private citizen or on no complaint at all." People v. Clark , 280 Ill. 160, 167, 117 N.E. 432 (1917). Even though a state's attorney, like the police officer in Bass's case, is sworn to uphold the laws and constitution of......
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...grand jury "shall preside over all hearings and swear all witnesses." (Ill.Rev.Stat.1975, ch. 38, par. 112-4(c); see People v. Clark (1917), 280 Ill. 160, 166, 117 N.E. 432.) Whether violation of this provision mandates dismissal of the indictment appears to present an issue of first impres......
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