People v. Kennedy

• Decision Date: 21 June 1922
• Docket Number: No. 14609.,14609.
• Citation: 135 N.E. 762,303 Ill. 423
• Parties: PEOPLE v. KENNEDY.
• Court: Illinois Supreme Court

303 Ill. 423

135 N.E. 762

PEOPLE

v.KENNEDY.

No. 14609.

Supreme Court of Illinois.

June 21, 1922.

Error to Lake County Court; Perry L. Persons, Judge.

Charles Kennedy was convicted of unlawful keeping for sale intoxicating liquor, and he brings error.

Reversed and remanded.

Carter, J., dissenting.

Sidney H. Block and George W. Field, both of Waukegan, for plaintiff in error.

Edward J. Brundage, Atty. Gen., and Ashbel V. Smith, State's Atty., of Waukegan, for the People.

CARTWRIGHT, J.

On June 8, 1921, a constable of Lake county, by authority of a search warrant issued by a justice of the peace under the act commonly called the Search and Seizure Act, entitled ‘An act to restrict the manufacture, possession and use of intoxicating liquor within prohibition territory’ (Laws 1919, p. 930), searched the premises occupied by the plaintiff in error, Charles Kennedy, and made return that he had seized intoxicating liquors specified in the return. On the same day an information containing 10 counts was filed in the county court by the state's attorney charging plaintiff in error with a violation of different provisions of the act. The third count charged that the plaintiff in error on May 10, 1921, was convicted of violating section 3 of the act and subsequently again unlawfully kept for sale intoxicating liquor. There was a trial, and the jury returned a verdict finding the defendant guilty in manner and form as charged in the third count. Motions for a new trial and in arrest of judgment were made and overruled, and the plaintiff in error was sentenced to imprisonment in the county jail for a period of 90 days and to pay a fine of $500. A writ of error was sued out of this court on the ground that a constitutional right of the plaintiff in error was violated by a trial upon an insufficient information.

The information was verified by Ashbel V. Smith, state's attorney, stating that the matters and things therein set forth were true as therein stated. The people introduced evidence tending to prove a violation of the act in question, and the defendant offered no evidence on that question, but called the state's attorney as a witness, and he said that he did not know personally that the matters and things set forth in the information were true, but he derived his information from others. A motion was then made that all evidence be excluded from the record, because the verification, in fact, was not made upon personal knowledge, but upon information, in violation of section 6 of the Bill of Rights, and the motion was denied. That section of the Bill of Rights declares that no warrant shall issue without probable cause supported by affidavit, and a verification stating that a person has been informed of the existence of facts and believes in their existence will not support a warrant. People v. Clark, 280 Ill. 160, 117 N. E. 432.

The information in this case was not of that character, but was supported by affidavit in positive terms, and complied with the provision of the Constitution. The state's attorney was not on trial, and the fact that he did not of his own personal knowledge know the facts, but derived such knowledge from others, which satisfied him of the existence of the facts, was not ground for claiming a violation of the constitutional right. Knowledge of the existence of facts may arise from a confession, or any other source which enables the person verifying the information to swear to its truth. People v. Boykin, 298 Ill. 11, 131 N. E. 133. The information stated probable cause and was supported by affidavit, and the court did not err in overruling the motion.

The defendant appeared in court and was furnished with a copy of the information, and a motion was made to quash, which was overruled, but the record does not show any plea to the information. Section 3 of division 13 of the Criminal Code (Hurd's Rev. St. 1921, c. 38, § 423) contains this provision:

‘Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare orally, by himself or his counsel, that hs is not guilty; which plea shall be immediately entered upon the minutes of the court by the clerk, and the mention of the arraignment and such plea shall constitute the issue between the people of the state and the prisoner.’

This court has consistently and uniformly held that the statute must be complied with and that a plea is essential to constitute an issue to be tried. In Johnson v. People, 22 Ill. 314, which was a prosecution for a misdemeanor, the above provision of the Criminal Code was quoted, and it was held that a plea was essential to the formation of an issue to sustain a verdict; that without it there was nothing to be tried by the jury; and that the judgment in that case should have been arrested for want of a plea. In Yundt v. People, 65 Ill. 372,...