People v. Kraus
| Decision Date | 12 November 1941 |
| Docket Number | No. 26090.,26090. |
| Parties | PEOPLE v. KRAUS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; John Prystalski, Judge.
Charles Kraus was convicted of petit larceny, and he brings error.
Reversed and remanded with directions.
George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, James A. Brown, and Melvin S. Rembe, all of Chicago, of counsel), for defendant in error.
A jury in the criminal court of Cook county found Charles Kraus guilty of petit larceny and found the value of the water stolen from the town of Cicero to be $14.99. He was sentenced to the Cook county jail for five months and fined one dollar and costs. He has sued out this writ of error to review that judgment and one of his claims is that his constitutional rights were invaded by an unreasonable search and seizure, for which reason he says the court erred when it denied his motion to suppress evidence.
On March 4, 1940, some of the officials of the Milk Wagon Drivers Union and the Inside Dairy Workers Union informed the State's attorney of Cook county that they had evidence showing a theft of water by the West Towns Dairy, Inc., an Illinois corporation, whose place of business was located at 1623 South Cicero avenue, Cicero, Illinois. Charles Kraus was the president of that corporation. The matter was referred to Brown, an assistant State's attorney of Cook county. Several employees of the dairy, who at that time were on strike, were questioned by him.
On March 8, 1940, Robert Pavalla, a non-striking employee, was apprehended by two Chicago police officers, Robert Ward and Willis Brennan, who had been assigned by the Chicago police department to the State's attorney's office. Pavalla was taken from his milk route by the officers to the Cicero town hall, where he was questioned by Brown, but he refused to answer at that time. He was then taken before the grand jury in the matter of People v. John Doe. As a result of Pavalla's testimony thus obtained, Robert Ward, the Chicago patrolman, appeared before Henry J. Sandusky, the police magistrate of Cicero, and signed a complaint against Charles Kraus charging him with larceny of water from the town of Cicero. A warrant for Kraus's arrest was issued and delivered to Cicero police officers for execution. They, together with Brown and several employees of the water department of Cicero, went to the dairy and the Cicero officers arrested Kraus. Brown and the water department employees then forced their way into the bottling room of the dairy, which was toward the rear. Kraus and his attorney barred the door to the ice-box room, which was adjacent to the bottling room, and refused to allow the workmen to enter. Brown then ordered the Cicero police officers forcibly to remove the attorney and Kraus, and to take the laborers into the ice-box and break the floor at the places he had indicted on a floor plan of the dairy. The Cicero police officers refused to do this after Kraus's attorney called their attention to the fact they had no search warrant, and their action was approved by a Cicero police captain who was consulted by telephone. Kraus was then taken to the Cicero police station by the Cicero officers. Brown then called his Chicago police officers, Ward and Brennan. When they arrived they forcibly removed Kraus's attorney from in front of the ice-box door and took the workmen into the ice-box. A 10-inch concrete floor and an 18-inch cork sub-floor were broken up in two rooms, a 14-inch brick wall was broken through, and some pieces of pipe 1.5 inches in diameter were removed. This had been attached to the incoming four-inch water pipe, and ran around the water meter to the ice-box, and thence back to the meter room where it was attached to the dairy water pipes. In the record this is designated as a ‘by-pass' or ‘tapping’ pipe.
Subsequently, on March 14, 1940, the grand jury returned the indictment upon which Kraus was later found guilty. The larceny complaint filed before the Cicero police magistrate by the Chicago police officer, Ward, was dismissed on March 22, 1940. A motion to quash the above indictment because water could not be the subject of larceny was properly denied. Water in the pipes of a waterworks system, gas, and electricity, are the subject of larceny. Clark v. State, 14 Okl.Cr. 284, 170 P. 275, L.R.A.1918C, 577;Woods v. People, 222 Ill. 293, 78 N.E. 607, 7 L.R.A.,N.S., 520, 113 Am.St.Rep. 415,6 Ann.Cas. 736;People v. Menages, 367 Ill. 330, 11 N.E.2d 403, 113 A.L.R. 1276. Cases involving water in lakes or running streams are not in point. The relevant facts as to the search and seizure were agreed upon by counsel, but the court denied defendant's motion to suppress the pipes and evidence of the water theft obtained through the search directed by Brown and the Chicago police. The defendant then pleaded not guilty.
At the trial, Charles Brabec, a meter reader for the water bureau of the town of Cicero, testified that in February, 1940, he installed a new meter at the dairy. He tried to shut off the water by closing the valve in the four-inch intake pipe. He then began removing the meter, but stopped when he noticed that water under pressure ran from the meter. He saw a pipe coming through the wall about three feet above the meter. He went into the next room and found a pipe which led from the cement floor to the point where it pierced the wall and entered the meter room. He closed a valve in this pipe with a wrench. This shut off the water and he finished changing the meter. A report of the condition found was made to the water department by his helper. On cross-examination Brabec testified that on one occasion he removed a fish from the water meter at the dairy, and that this fish would cause the meter to stop registering. He also said this fish was not placed in the meter by human hands.
Robert Pavalla was called as a witness for the People. He testified, in substance, that he put in the tapping pipe at the direction of Charles Kraus, but that he did not remember Kraus's specific directions or the exact time he did the work. In doing this work he was assisted by Johnny Barrell. Brown then read to Pavalla from a transcript of the proceedings before the grand jury which had indicted Kraus. Brown asked Pavalla whether the questions read had been asked of him and whether he had given the answers read to him from the transcript. In each instance Pavalla answered in the affirmative. This was over the specific objection that the People thereby were attempting to impeach their own witness. The prosecutor made no claim that he was attempting to refresh the witness's memory. Upon cross-examination, Kraus's counsel asked the court to direct Brown to turn the transcript of the grand jury proceedings over to him so that he could cross-examine the witness on it. The court refused to do this.
Johnny Barrell testified that at the direction of Pavalla he closed the valve at the main water line in the pipe leading to the dairy and that this stopped the flow of water so that the...
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