People v. Holton

• Decision Date: 06 October 1927
• Docket Number: No. 17765.,17765.
• Citation: People v. Holton, 326 Ill. 481, 158 N.E. 134 (Ill. 1927)
• Parties: PEOPLE v. HOLTON.
• Court: Illinois Supreme Court

326 Ill. 481

158 N.E. 134

PEOPLE

v.HOLTON.

No. 17765.

Supreme Court of Illinois.

June 22, 1927.

Rehearing Denied with Modification Oct. 6, 1927.

Error to McDonough County Court; T. H. Miller, Judge.

Ora Holton was convicted of unlawfully selling and possessing intoxicating liquor, and he brings error.

Judgment affirmed in part, and reversed in part.Ira J. O'Harra, of Macomb, and O'Harra, O'Harra & O'Harra, of Carthage, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., William R. Harris, State's Atty., of Macomb, and Royce A. Kidder, of Springfield, for the People.

DE YOUNG, J.

Ora Holton was indicted in the circuit court of McDonough county for violations of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1925, c. 43, § 1 et seq.). The indictment consisted of ten counts, upon the first four of which a nolle prosequi was entered. The remaining counts were thereafter certified to the county court, and upon a trial in that court the jury returned a verdict finding Holton guilty on the fifth and eighth counts. Motions for a new trial and in arrest of judgment were made and denied, and judgment was rendered on the verdict. Holton prosecutes this writ of error for a review of the record.

The fifth count of the indictment charges that plaintiff in error, on December 14, 1925, ‘did unlawfully and willfully sell intoxicating liquor without then and there having a permit from the Attorney General of the state of Illinois to sell the same, which said intoxicating liquor then and there contained more than one-half of 1 per cent. of alcohol by volume and was then and there fit for use for beverage purposes.’ The eighth count charges that plaintiff in error on the same day ‘did unlawfully and willfully possess intoxicating liquor which then and there contained more than one-half of 1 per cent. of alcohol by volume and was then and there fit for use for beverage purposes, the possession of which said intoxicating liquor was then and there prohibited and unlawful and in violation of section 28 of the Illinois Prohibition Act, said intoxicating liquor being then and there possessed by the said Ora Holton with intent to use the same in violation of the Illinois Prohibition Act.’

It appears that All Miller, a baseball player by occupation, residing at Hot Springs, Ark., was employed by the county of McDonough to obtain evidence of illegal sales of liquor in that county; that Miller met plaintiff in error, and they had conversations and a transaction involving the sale of intoxicating liquor, but that the dates of their meetings, and whether plaintiff in error bought or sold the liquor, were matters in dispute. The evidence on the part of the prosecution shows that Miller first saw plaintiff in error in the city of Bushnell, in McDonough county, early in December, 1925; that on the evening of the 12th day of that month he called plaintiff in error at the latter's home by telephone, and told him that he (Miller) was at the gymnasium and wanted ‘a pint’; and that shortly afterwards, on the same evening, he received from plaintiff in error a bottle of liquor, for which he paid him $4. The nolle prosequi was entered upon the counts of the indictment charging the sale of liquor on December 12, and furtherreference to what occurred on that day is therefore unnecessary.

The prosecution's evidence further shows that Miller next met plaintiff in error at his home on December 14, at about 6 o'clock p. m.; that Miller told plaintiff in error he wanted another pint of liquor; that plaintiff in error entered the house and returned with a bottle, for which Miller gave him $4; that on the same evening Miller went to Macomb by a railroad train, and after arriving there telephoned the sheriff, met him at his garage, and gave him the bottle; and that he (Miller) had taken a drink from the bottle, but otherwise its contents remained unchanged. The bottle, with its contents, was marked ‘Exhibit B,’ and was offered in evidence on the trial. The sheriff corroborated Miller's testimony concerning the receipt of the exhibit, and testified that he put it in a locker at the jail, where it remained until it was delivered to a chemist to analyze. After making an analysis, the chemist returned it to the sheriff. The chemical analysis showed the contents of the bottle to be 33.6 per cent. grain alcohol. On December 26, 1925, the sheriff, accompanied by his deputy and two special deputies, and with a search warrant which had been issued by the county judge, went to the home of plaintiff in error, searched the house, and found a gallon jug and two bottles of whisky, five bottles of apricot brandy, and some extracts. The officers placed these receptacles in a locker at the jail, where they were kept until their contents were analyzed by the chemist. The analyses disclosed a higher content of alcohol than was contained in ‘Exhibit B.’

Plaintiff in error testified that he met Miller early in December, 1925, when Miller asked him if he had any liquor, and that he answered in the negative; that he did not meet Miller, either on the 12th or 14th of December; that on December 13 Miller came to the garage of plaintiff in error, where one Kipling was at work repairing the latter's automobile, and asked whether they needed any liquor; that plaintiff in error answered he might use some, if it was good; that Miller replied, ‘You always refuse to sell to me, but I will sell to you; I will show you I ain't as afraid of you as you are of me;’ that plaintiff in error rejoined he was not in the business, but that, if Miller had something fit to drink, he would buy it; that Miller then said he would show plaintiff in error what he had; that Miller invited Kipling to enter the house, and they all went inside; that Miller had samples of apricot brandy and alcohol, which he said were called ‘odds and ends,’ and belonged to a man from Chicago, who remained in the automobile in front of the house; that Miller told plaintiff in error he had another gallon of alcohol, twelve quarts of apricot brandy and six bottles of bonded whisky, all of which he brought into the house, and that he, plaintiff in error bought the liquors from Miller and paid him $86 therefor in bills. Plaintiff in error denied that he ever sold any liquor to Miller. He further testified that on December 14, between 4 and 5 o'clock p. m., he and his wife went to a hotel in town, each to take a bath, and when they returned, at about 7 o'clock, found the door of their house broken down. Homer Bollinger testified that he and his wife were visitors at the home of plaintiff in error from the 12th to the 16th of December, and Bollinger corroborated the latter's testimony concerning the purchase of liquors from Miller and the condition of the door on the evening of the 14th of December. On rebuttal, Miller testified that he was not absent from Macomb on December 13, and that he did not arise until noon on that day. Plaintiff in error was arrested on December 30, and at that time told the sheriff that he was not acquainted with Miller.

[1] It is first contended by plaintiff in error that the search warrant was illegally issued and that the evidence thereby obtained was improperly admitted. The warrant directed the sheriff to search ‘a certain dwelling house, barn, garage, outbuildings and sheds located at 1055 Miller street, in the city of Bushnell.’ The description of the place to be searched, it is argued, is insufficient. There was no number on the house on the day of the trial. Fred Sperry, who had obtained his information from the telephone directory, testified that the property to be searched was known as 1055 Miller street. Two other witnesses, who had resided in Bushnell for many years, testified that the house of plaintiff in error was the only one on Miller street in the block numbered 1,000. Plaintiff in error filed an affidavit in support of a motion to quash the search warrant, and in this affidavit, which was introduced in evidence, he swore that the sheriff and his deputies, by virtue of the warrant, searched the dwelling house located at 1055 Miller street, and that it was his private dwelling, occupied by himself and his family.

[2] Section 6 of article 2 of the Constitution provides:

‘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.’

Pointing out a definitely ascertainable place in terms of reasonable certainty is sufficient, and a technical description of the place to be searched is not required. Blakemore on Prohibition (2d Ed.) pp. 446, 447; People v. Lienartowicz, 225 Mich. 303, 196 N. W. 326;People v. Flemming, 221 Mich. 609, 192 N. W. 625;Commonwealth v. Intoxicating Liquors, 122 Mass. 36;McSherry v. Heimer, 132 Minn. 260, 156 N. W. 130;State v. Hesse, 154 Minn. 89, 191 N. W. 267;United States v. Borkowski, 268 F. 408;Hornig v. Bailey, 50 Conn. 40;State v. Comolli, 101 Me. 47, 63 A. 326.

Plaintiff in error has cited 17 cases upon the questions of the requisite certainty or particularity in the description of the place to be searched in a search warrant and the failure of the officer specifically to follow the directionsof the warrant. In none of these cases, however, was the warrant held insufficient, where the officer, by following the description contained in it, would have found the place to be searched, and could have gone to no other place, although the street number was omitted, or was incorrectly given. Rules of construction are not to be invoked to make that clear which is obvious (State v. Comolli, supra), and they should not be permitted to make legally uncertain that which, as a fact, is definitely ascertainable. If the description of the place to be searched is sufficiently definite, so that the...