People v. Koshiol

• Decision Date: 20 May 1970
• Docket Number: No. 41700,41700
• Citation: People v. Koshiol, 262 N.E.2d 446, 45 Ill.2d 573 (Ill. 1970)
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Mary B. KOSHIOL, Appellant.
• Court: Illinois Supreme Court

Page 446

262 N.E.2d 446

45 Ill.2d 573

The PEOPLE of the State of Illinois, Appellee, v. Mary B. KOSHIOL, Appellant.

No. 41700.

Supreme Court of Illinois.

May 20, 1970.

Rehearing Denied Oct. 6, 1970.

Gerald W. Getty, Public Defender, Chicago (James J. Doherty and Andre Mandeville, Asst. Public Defenders, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Joseph Romano, Asst. States' Attys., of counsel), for the People.

CREBS, Justice.

Defendant, Mary B. Koshiol, was tried by a jury in the circuit court of Cook County on a two-count indictment charging aggravated battery and attempted murder of her husband, John Koshiol. At the close of the State's evidence the aggravated battery charge was dismissed, but she was found guilty of 'attempt murder' and sentenced to the Women's Prison at Dwight for a term of not less than 2 years nor more than 6 years. She now appeals from this conviction and sentence claiming that her constitutional rights were violated by an unlawful search and seizure at the apartment she and her husband jointly occupied, that the evidence was insufficient to prove her guilt, that the final argument of the prosecutor was prejudicial, and that the court erred in instructing the jury.

Defendant and her husband were married for 18 years and lived together with their four children in an apartment in Chicago. Mr. Koshiol testified that in September, 1965, he began suffering painful vomiting spells which continued periodically during the following months of that year and then recurred during the first three months of 1966. After three separate confinements in private hospitals failed to reveal the cause of his trouble he was transferred to a Veteran's Administration Hospital on March 8, 1966, where an expert in blood disorders diagnosed his illness as chronic arsenic intoxication. Suspicions were aroused that his wife was putting arsenic in his food when he recalled that on each confinement in the hospital his vomiting would stop and then reoccur when he returned home. When he vomited in the Veteran's Hospital on March 12 after drinking a milk shake which defendant had brought to him he was restricted to the hospital diet alone and all subsequent gifts of food or drink from his wife were turned over to the hospital for checking. From this time on his vomiting stopped. In the hospital check a number of items delivered to her husband by defendant proved negative for arsenic content, but toxicology experts testified that a milk shake delivered on April 5 contained 10 milligrams of arsenic trioxide, another delivered on April 15 contained 45.5 milligrams, and an orange delivered on April 21 contained 3.425 milligrams.

Defendant was arrested on May 24 in her husband's hospital room. On June 1, while defendant was in custody, her husband was released from the hospital for the day to arrange for a woman to take care of his children. His sister testified that she came to help and while removing defendant's clothes from a dresser drawer she found two bottles, one of which was later found to contain arsenic. She then searched further and found a syringe needle and another bottle in the bathroom which contained arsenic. Defendant's son also testified that he found a bottle in the kitchen pantry which was later determined to contain arsenic.

Defendant contends first that the rights against unreasonable search and seizure under the fourth amendment to the United States constitution are personal to the possessor and that a spouse should have no authority to bind an absent spouse by waiving a legal search warrant or consenting to an unauthorized search of premises jointly owned or occupied by both. She recognizes that the United States Supreme Court has has never expressly ruled on this subject and that the long established rule in Illinois is contrary to her position. (People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172; People v. Perroni, 14 Ill.2d 581, 153 N.E.2d 578; People v. Speice, 23 Ill.2d 40, 177 N.E.2d 233; People v. Stacey, 25 Ill.2d 258, 184 N.E.2d 866; People v. Palmer, 26 Ill.2d 464, 187 N.E.2d 236; People v. Palmer, 31 Ill.2d 58, 198 N.E.2d 839; People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430.) However, she argues that we should reconsider the matter on the grounds that a personal right which can be waived by another either directly, or indirectly as an agent, thereby loses its personal status and the right itself would soon disappear. We disagree, particularly under the facts of this case. The husband was not acting as an agent of his wife, nor was he waiving his wife's right in permitting his sister to conduct a search of his own apartment in his presence. Rather, he was exercising his own personal right of possession and control to which he was entitled as a joint owner and occupant of the premises. To hold otherwise here would lead to the strange conclusion that the right of the wife to conceal her efforts to kill her husband are paramount to and somehow must supersede her husband's equal right to protect himself by searching his own residence for the physical evidence of his wife's activities. Defendant cites no reason why such a search by her husband was unreasonable other than that his position was antagonistic to her and his whole attitude was contrary to her best interests. That he was antagonistic at this point is true, but it surely constitutes an anomalous argument under the circumstances. In any event, regardless of the alleged antagonism on the part of the husband, it neither depleted his right nor increased his wife's. Defendant makes one further argument that the rule as it now stands represents a challenge to the Judeo-Christian community at large because it discourages marriage and encourages immorality in that the right against unreasonable search under such rule is allegedly secure against a person's part-time paramour and is lost against a person's wedded partner. She asks if one of the prices of marriage is an abandonment of rights under the fourth amendment. We consider this argument entirely spurious. The right to search or to consent to a search is based on the right to the use or occupancy of the premises and not on the relationship of husband and wife as opposed...