People v. Elias

• Citation: 147 N.E. 472,316 Ill. 376
• Decision Date: 24 April 1925
• Docket Number: No. 16270.,16270.
• Parties: PEOPLE v. ELIAS.
• Court: Supreme Court of Illinois

316 Ill. 376

147 N.E. 472

PEOPLE

v.ELIAS.

No. 16270.

Supreme Court of Illinois.

April 24, 1925.

Error to Circuit Court, Du Page County; Mazzini Slusser, Judge.

Anton Elias was convicted of possessing and selling intoxicating liquors, and brings error.

Reversed.

Farmer, J., dissenting.Kelly, Burns & Daly, of Chicago (James D. Murphy, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage and Oscar E. Carlstrom, Attys. Gen., C. W. Reed, State's Atty., of Naperville, George C. Dixon, of Dixon, and Charles F. Mansfield, of Monticello, for the People.

THOMPSON, J.

The construction of section 6 of article 2 of the Constitution being involved, this writ of error is sued out of this court to review the judgment of the circuit court of Du Page county, finding plaintiff in error guilty of possessing and selling intoxicating liquors, contrary to the provisions of the Prohibition Act, and sentencing him to serve 6 months in the county jail and to pay a fine of $1,000.

[1] The eighth court of the indictment charges that Anton Elias did ‘unlawfully keep for sale intoxicating liquor while the said county of Du Page was then and there prohibition territory, said keeping for sale of intoxicating liquor being then and there unlawful, prohibited, and contrary to the provisions of the Illinois Prohibition Act,’ and the ninth count is the same, except that it charges a sale instead of a keeping for sale. It is not unlawful, under all circumstances, to sell or keep for sale intoxicating liquors in this state. In order, therefore, to charge a violation of the Prohibition Act, it is essential that the indictment negative the exceptions contained in the act (People v. Barnes, 314 Ill. 140, 145 N. E. 391;People v. Martin, 314 Ill. 110, 145 N. E. 395), though this need not be done by the use of the exact words used by the Legislature in stating the exceptions (People v. Tate, No. 16217, 146 N. E. 487). Inasmuch as the indictment did not charge plaintiff in error with a crime, the motion in arrest of judgment should have been sustained.

Prior to the opening of the trial, plaintiff in error filed in the circuit court a petition asking that certain intoxicating liquors in the hands of the sheriff be returned to him, for the reason that they were illegally seized. This petition was denied on the ground that the intoxicating liquor was seized by virtue of a search warrant issued in accordance with the provisions of section 29 of the Prohibition Act (Smith-Hurd Rev. St. 1923, c. 43, § 30). This section provides that——

‘Whenever complaint is made in writing, verified by affidavit, to any judge, having cognizance of criminal offenses, that complainant has just and reasonable grounds to believe and does believe that intoxicating liquor is manufactured, possessed, kept for sale, used, disposed of, or transported in violation of any law of this state, * * * with the facts upon which such belief is based, the judge may issue a search warrant.’

The complaint filed in this case before the county judge of Du Page county is in accordance with the form prescribed by the Prohibition Act, and reads as follows:

‘The complaint and affidavit of C. W. Reed, of Naperville, made before S. L. Rathje, county judge, in and for said county of Du Page, on this, the 3d day of June, A. D. 1924, who, being first duly sworn, upon his oath says: That he has just and reasonable grounds to believe and does believe that intoxicating liquor is now unlawfully manufactured, kept for sale, possessed, used, disposed of, transported, or any mash, still or other property designed for the illegal manufacture of intoxicating liquor is possessed, within prohibition territory, to wit, at and within a certain frame building situated on lots 1 and 2 in block 1 in Arthur T. McIntosh's first addition to Westmont, in the village of Westmont, Du Page county, Illinois, said premises being on the south side of Chicago avenue and east of Wilmette avenue in the village of Westmont, Du Page county, Illinois, and used as a residence, soft drink parlor, and restaurant and known as ‘Tony's Place,’ also such outbuildings as are situated on said lots 1 and 2 aforesaid, occupied, owned, or controlled by Anton Elias, in the village of Westmont, in the county and state aforesaid; and the following are the reasons for such belief, to wit: Information received from one Ray Bullerman, a reliable person, that he (Bullerman), on the 31st day of May, 1924, and on divers other days, bought intoxicating liquor, saw it kept for sale and sold by Anton Elias in said premises.'

[2] A frequent recurrence to fundamental principles is essential to the preservation of good government and to the security of the liberty and personal rights of the citizen. Sullivan v. City of Oneida, 61 Ill. 242. The natural right of a free man to be secure from unlawful search and seizure of his person or property was recognized in Magna Carta more than 700 years ago, and has always been regarded by the American people as the very essence of constitutional liberty. The preservation of the right was guaranteed by the federal Constitution when this nation was established, and this guaranty has been repeated in every state Constitution. Surely at this late day it is not necessaryto emphasize the importance to the welfare of our country of the due observance of the natural rights of our citizens guaranteed under the federal and state Constitutions. The writing into the Constitution of this state of the provision guaranteeing that ‘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 without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized,’ was not an idle ceremony. With a clearness of vision which has attracted the attention and commanded the respect of the civilized world, our forefathers provided an orderly manner for search and seizure and prohibited all others. Realizing that the due administration of the criminal laws demanded such authority, they provided for a lawful search and seizure when the complaint asking for the warrant was supported by an affidavit and described the place to be searched and the person or thing to be seized, but in the same provision they secured the individual in his person, his home, and his property from invasion through unbridled legislation and unrestrained executive will by prohibiting unreasonable search and seizure. The despotic English kings justified their general warrants of search and seizure on the ground that it was necessary in order to enforce the law, and, strange as it may seem, there is a misguided minority in this country that even at this late day argues that ‘the end justifies the means.’ The power to make searches and seizures is absolutely necessary to the public welfare. Without it many criminal practices would go unchecked and many criminals unwhipped. But the process may be exercised and the law enforced without transgressing those constitutional guaranties which are provided for the protection of the honest, law-abiding citizen. The enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.

[3][4][5][6]Whether there is probable cause for issuing a search warrant is a judicial question, to be determined by the magistrate before whom complaint is made. The testimony on which the magistrate acts must be reduced to writing, incorporated in a formal complaint, and verified by affidavit. People v. Prall, 314 Ill. 518, 145 N. E. 610;Salter v. State, 2 Okl. Cr. 464, 102 P. 719,25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935. Probable cause does not exist unless the magistrate is convinced by competent and material evidence that there is reasonable ground to suspect that the accused is guilty of the offense charged. State v. District Court (Mont.) 224 P. 866. The magistrate must exercise his own judgment and not act on the judgment of the official accuser. A warrant issued upon a conclusion of the accuser, without any facts stated in the application upon which the judicial officer to whom it is addressed may form his own conclusion, is not a showing of ‘probable cause supported by affidavit,’ within the meaning of the guaranty. State v. District Court, 59 Mont. 600, 198 P. 362.

‘If the magistrate is to issue a search warrant without being apprised of the reasons leading the sheriff to think a search should be made, and without weighing these reasons, then the propriety of a search is always in the discretion of the police officer, and there is no judicial discretion involved. Why require a warrant? Why not let the officer make it on his own responsibility, if his bare opinion as to the necessity for a search justifies process authorizing it?’ Cravens v. State, 148 Tenn. 517, 256 S. W. 431.

[7] The verified complaint must state the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the accused, with sufficient definiteness so that, if it is false, perjury may be assigned on the affidavit. People v. Prall, supra; Lippman v. People, 175 Ill. 101, 51 N. E. 872;Myers v. People, 67 Ill. 503;Gore v. State (Okl. Cr. App.) 218 P. 545;State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. 1284. Chief Justice Marshall, in Ex parte Burford, 3 Cranch, 448, 2 L. Ed. 495, held void an affidavit made as a foundation for a warrant by a person who did not have personal knowledge of the facts, saying:

‘If the charge against him was malicious, or grounded on perjury, whom could he sue for the malicious prosecution? Or whom could he indict for perjury?’

In Rice v. Ames, 180 U. S. 371, 21 S. Ct. 406, 45 L. Ed. 577, it is held that a complaint upon information and belief is bad, and that a warrant should not be issued until the judicial officer to whom application is made...