People v. De Geovanni

• Decision Date: 22 June 1927
• Docket Number: No. 17569.,17569.
• Citation: 157 N.E. 195,326 Ill. 230
• Parties: PEOPLE v. DE GEOVANNI.
• Court: Illinois Supreme Court

326 Ill. 230

157 N.E. 195

PEOPLE

v.DE GEOVANNI.

No. 17569.

Supreme Court of Illinois.

June 22, 1927.

Error to Woodford County Court; W. H. Foster, Judge.

James De Geovanni was convicted of unlawfully possessing and selling intoxicating liquor, and he brings error.

Affirmed.Fort & Fort, of Minonk, and I. R. Wasson, of Peoria, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John R. Tweddale, State's Atty., of Washburn, and Virgil L. Blanding, of Springfield, for the People.

DUNCAN, J.

Plaintiff in error, James De Geovanni, prosecutes this writ of error to review a judgment and order of the county court of Woodford county imposing a fine of $400 and costs and committing him to jail until he pays the fine and costs or is discharged according to law. He was tried on an information of two counts, charging unlawful possession and sale of intoxicating liquor without a permit of the Attorney General and in violation of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1925, c. 43, § 1 et seq.).

Le Roy Rowe, a prohibition investigator of Woodford county, was one of the principal witnesses against the plaintiff in error (herein called the defendant) and testified, in substance, as follows: On February 19, 1926, the defendant was conducting a soft drink parlor, in which there were pool tables and card tables. Defendant's place of business was in Roanoke, Woodford county, Ill. Rowe on that date purchased at that soft drink parlor, and drank there, three of four drinks of liquor, for which he paid 25 cents per drink. The drinks were served to him in an ounce whisky glass. He, also, on the same date, and at the same place bought a half pint of the liquor in a soda water bottle to take with him, for which he paid 75 cents. On February 22, 1926, he bought two drinks of liquor at the same place and a half pint bottle of liquor, for which he paid $1. He delivered both of the bottles of liquor to the sheriff of Woodford county, who marked and preserved the same for evidence, and they were introduced as exhibits on the trial of the cause after being thoroughly identified by witnesses as the same bottles, with the same contents, that were delivered to the sheriff by Rowe.

In pursuance of a search warrant duly executed by a justice of the peace of said county on February 24, 1926, the sheriff's two deputies entered the premises of the defendant and searched the same and seized one bottle and two two-gallon jugs of intoxicating liquor, which they found well concealed in said premises, after first being informed by the defendant that there were no intoxicating liquors in his premises. These three containers and their contents, except what had been taken therefrom by a chemist for analysis, were put in evidence before the jury after being fully identified by witnesses as the same containers, with the same contents, that were taken from the defendant's premises by the search and seizure aforesaid. The chemist analyzed the contents of all five of the bottles and judgs and testified that the two bottles of liquor purchased by Rowe contained intoxicating liquor fit for beverage purposes and contained 33.9 and 44.1 per cent. of alcohol by volume, respectively, and that the intoxicating liquor in all three of the other containers contained 37.1 per cent. of alcohol by volume. The defendant offered no testimony, and the foregoing evidence is not controverted in any way.

[1]In the complaint for the search warrant sworn to by Rowe, the prohibition investigator, it was stated that he had just and reasonable grounds to believe, and did believe, that intoxicating liquor was then unlawfully possessed and kept for sale at and within a certain building used and occupied as a soft drink parlor and known as the Club saloon (the exact location of the drink parlor or saloon being then stated), and that the following are the reasons for his belief:

‘This affiant did on the 19th day of February, A. D. 1926, purchase and pay for a quantity of intoxicating liquor, and saw intoxicating liquor in said building, and saw intoxicating liquor sold therein by the manager, James De Geovanni.’

It is argued by the defendant that the justice of the peace was not justified in issuing the search warrant on the complaint, five of the bottles and jugs and testified that made five days after Rowe saw intoxicating liquor, purchased intoxicating liquor, and saw intoxicating liquor purchased at the defendant's premises. The contention is that the fact that intoxicating liquor was seen on the premises on February 19 and was sold to Rowe and to others on that day by the defendant did not warrant the belief that intoxicating liquor was there was kept by the defendant for sale on February 24, or on any date between February 19 and February 24, and that the legal presumption would be that it was not possessed or sold by the defendant on any day after February 19. It is for the same reason argued that the county court should have sustained the defendant's motion to suppress all evidence obtained by the search and seizure. These contentions cannot reasonably be sustained. To sustain such contentions would virtually amount to a holding that a search warrant could not be legally issued for the search and seizure of intoxicating liquor unless the complainant made the complaint therefor on the premises while the illegal business was in progress. The justice of the peace who issued the warrant was clearly justified by the facts stated in the complaint of Rowe in concluding that the defendant was engaged in the illegal occupation or business of keeping for sale and of selling intoxicating liquor on February 19, and that he possessed such liquor for sale on February 24, in the absence of a showing that he, as manager or proprietor, had ceased to do business there or had discontinued such illegal business or occupation. A soft drink parlor is commonly known as a place where soft drinks are sold and drunk on the premises. A saloon is commonly and generally known as a place where intoxicating liquors are sold and drunk, and is so defined in Webster's New International Dictionary. The defendant's place was not only known as a soft drink parlor, but was also known as the Club saloon, according to the allegations in the complaint. It being shown, in substance, that intoxicating liquor was kept and was sold to Rowe and to other persons at the defendant's soft drink parlor, or Club saloon, on February 19, it cannot be reasonably held that it was not probable that such business continued for a reasonable time thereafter, in the absence of a showing that the defendant had ceased to do business at that place or had discontinued such illegal business. The complaint was filed in reasonable time, and the court properly refused to sustain the defendant's motion to suppress the evidence obtained by the search and seizure aforesaid.

[2][3] A complaint for a search warrant is to be regarded as sufficient to authorize the issuance of a search warrant when the facts therein stated and sworn to show probable cause for the writ. It is not required that the complaint for a search warrant should show, beyond a reasonable doubt, that the writ should be issued. The writ in this case was not issued in violation of section 6 of the Bill of Rights, which provides, in substance, that no search warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched and the persons or things to be seized. The complaint for the search warrant and the warrant were drawn in conformity with the provisionsof the Constitution aforesaid. People v. Shields, 309 Ill. 142, 140 N. E. 850;People v. Zalapi, 321 Ill. 484, 152 N. E. 500;People v. Cioppi, 322 Ill. 353, 153 N. E. 604.

[4] It is contended by the defendant that sections 29 and 30 of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1925, c. 43, §§ 30, 31) are invalid because they do not require the judge or magistrate to determine, from facts stated in the complaint for a search warrant, whether or not there are probable grounds for the issuance of such warrant, and that said sections clearly undertake to transfer from the judge or magistrate all judicial discretion and to confer his judicial power upon the person making the complaint in order that he may determine the question of probable cause for issuing such warrant. These sections furnish no reasonable ground for such contention. Section 29 does provide that whenever complaint is made in writing, verified by affidavit, to any judge having cognizance of criminal offenses, that the complainant has just and reasonable grounds to believe, and does believe, that intoxicating liquor is manufactured, possessed, kept for sale, used,...