People v. Edge

• Decision Date: 21 September 1950
• Docket Number: No. 31436,31436
• Citation: People v. Edge, 406 Ill. 490, 94 N.E.2d 359 (Ill. 1950)
• Parties: PEOPLE v. EDGE.
• Court: Illinois Supreme Court

Page 359

94 N.E.2d 359

406 Ill. 490

PEOPLE v. EDGE.

No. 31436.

Supreme Court of Illinois.

Sept. 21, 1950.

Henry C. Ferguson, of Chicago, for plaintiff in error.

Ivan A. Elliott, Attorney General, and John S. Boyle, State's Attorney, of Chicago (Leo F. Poch, John T. Gallagher, Rudolph L. Janega, Irving Lang, and Thomas S. McInerney, all of Chicago, of counsel), for the People.

WILSON, Justice.

The defendant, Cornelius Edge, was indicted in the criminal court of Cook County for the offense of possessing policy tickets. The indictment consisted of two counts. Both charged defendant with knowingly possessing policy tickets on June 25, 1948, and the second count contained the additional charge that he had previously been convicted of the same offence on June 10, 1948, in the municipal court of Chicago. Motions to quash the indictment and to suppress the evidence were overruled. A jury found defendant guilty, as charged in the second count of the indictment, and he was sentenced to imprisonment in the penitentiary for a term of not less than one year nor more than two years. Defendant prosecutes this writ of error.

Defendant was indicted under section 2 of an act entitled, 'An Act for the prevention of policy-playing.' (Ill. Rev. Stat. 1949, chap. 38, par. 413.) The statute consists of three sections. Section 1 defines the offense of selling or offering to sell policy tickets, while section 2 makes the possession of policy tickets, knowingly, and many other specified kindred acts criminal offenses. Section 3 provides that the possession of a policy ticket is presumptive evidence that the possession is knowingly and in violation of the act. Although the sale and possession of policy tickets are separate and distinct offenses, the penalties prescribed are identical. Upon a first conviction under either section 1 or 2, the defendant is subject to a fine or not less than two hundred nor more than one thousand dollars, or imprisonment in the county jail for not more than one year, or both. For a second conviction of the same offense, the only punishment prescribed is imprisonment in the penitentiary for a term of not less than one year nor more than two years.

Defendant first complains that the trial court erred in denying his motion to quash the indictment. His initial contention is that section 2 of the statute is null and void because the title of the act does not express the subject matter of the section, in violation of section 13 of article IV of our constitution, Smith-Hurd Stats. Defendant's brief refers exclusively to the title or digest of section 2, 'Owner of building permitting,' supplied by the publishers of the State Bar Association edition of the Illinois Revised Statutes and makes no reference to the official title of the act, as passed by the General Assembly. The constitutional provision invoked has no application to the unofficial heading or digest of a section of a statute added by a publishing company for the convenience of its patrons.

In the same connection, defendant also contends that the part of the second count of the indictment charging that he was formerly convicted of possessing policy tickets discloses, upon its face, that the alleged prior conviction is void. Count 2, in addition to reciting, in narrative form, defendant's pleas, the judgment of conviction and fine in the municipal court of Chicago on June 10, 1948, sets forth, verbatim, the information on which he was tried. The information, so far as pertinent, charges that defendant, on June 9, 1948, at Chicago, "did then and there unlawfully have in his possession" a policy ticket. Although apparently intended to be drawn in the language of the statute, the information substitutes the word 'unlawfully' for 'knowingly.' Defendant argues that 'unlawfully' is not equivalent to 'knowingly;' that the information fails to charge a criminal offense and that, consequently, the alleged judgment of conviction 'of the offense charged in said information' is a nullity.

To give a court jurisdiction in a criminal case, it is essential that the indictment or information charge the accused with a crime. People v. Harris, 394 Ill. 325, 68 N.E.2d 728; People v. Nickols, 391 Ill. 565, 63 N.E.2d 759. Moreover, where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. People v. Harris, 394 Ill. 325, 68 N.E.2d 728; People v. Barnes, 314 Ill. 140, 145 N.E. 391. Under section 2 of the act prohibiting policyplaying policy tickets must be possessed knowingly in order to constitute a crime. Section 3 of the act only serves to emphasize this by providing that the possession of policy tickets is presumptive evidence that the tickets were knowingly possessed. The word 'knowingly,' omitted from the information in question, is not supplied, in substance, by the term 'unlawfully.' Inclusion of the word 'unlawfully' connotes that the possession was contrary to or in defiance of law, whereas 'knowingly' implies that the act was performed consciously, intelligently, and with actual knowledge of the facts. Webster's New International Dictionary, 2nd edition; Black's Law Dictionary, 3rd edition; Bouvier's Law Dictionary, Rawle's 3rd revision, p. 3376; 43 Words and Phrases, Perm. Ed. p. 297. For the reason the information did not allege that defendant knowingly possessed policy tickets, either in the language of the statute or in other appropriate words, it failed to charge him with a criminal offense.

The prosecution concedes, in effect, that the information did not charge a crime, but contends that the former judgment of conviction is not subject to collateral attack in this cause. The point is not well taken. A judgment of conviction entered upon an information which does not charge an offense is not merely erroneous, but void for want of jurisdiction of the subject matter, and may be attacked at any time, either in a direct proceeding on review or collaterally. People v. Nickols, 391 Ill. 565, 63 N.E.2d 759; People v. Buffo, 318 Ill. 380, 149 N.E. 271, 272. In the case last cited, this court held a former indictment and conviction for a violation of the Illinois prohibition statute were not admissible in evidence in a prosecution for a second violation of the act where the former indictment showed on its face that it did not charge any criminal offense. The court observed: 'If the former indictment did not charge defendant with any crime, it would seem necessarily to follow the court had no jurisdiction to try and convict him of a crime. * * * To give a court jurisdiction of the subject-matter in a criminal case it is essential that the accused be charged with a crime. If that is not done, a plea of guilty in manner and form as charged does not authorize the court to render a judgment of conviction for some criminal offense, and if a judgment is so rendered, it is void and may be attacked collaterally. * * * Inasmuch as the defendant was not charged in the former indictment with a violation of any criminal law, the court had no jurisdiction to try, convict, and sentence him for the commission of a criminal offense. The former judgment was void and subject to collateral attack.'

The motion to quash the indictment, to the extent that the second count charges a former judgment of conviction, should have been sustained. Both counts of the indictment, however, properly charge defendant with knowingly possessing policy tickets on June 25, 1948, and, to this extent the motion to quash was properly overruled.

Of the remaining contentions made and argued, the only one requiring consideration is defendant's assertion that the trial court erred in denying his motion to suppress the evidence. Defendant contends he was unlawfully arrested and that the accompanying search of his person and seizure of a package of policy tickets were accomplished in violation of his constitutional rights. Recourse to the evidence heard upon the motion to suppress reveals the following facts: Early in the evening of June 25, 1948, Timothy D. Allman, a police officer assigned to a gambling detail, while driving along Thirty-first Street, in Chicago, in a squad car with two other officers, observed an automobile parked in an alley and partly across the sidewalk. As he approached the alley a second time, after turning around, Allman saw a man enter the...