People v. Lavendowski

• Decision Date: 04 April 1928
• Docket Number: No. 18149.,18149.
• Citation: 329 Ill. 223,160 N.E. 582
• Parties: PEOPLE v. LAVENDOWSKI.
• Court: Illinois Supreme Court

329 Ill. 223

160 N.E. 582

PEOPLE

v.LAVENDOWSKI.

No. 18149.

Supreme Court of Illinois.

Feb. 24, 1928.

Petition for Rehearing Withdrawn April 4, 1928.

Error to Rock Island County Court; William L. Leach, Judge.

Joe Lavendowski was convicted of maintaining a common nuisance and of the unlawful possession of a still designed for the illegal manufacture of liquor, without having a permit therefor, and he brings error.

Affirmed.Ben A. Stewart, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Benjamin S. Bell, State's Atty., of Rock Island, Virgil L. Blanding, of Springfield, and Dan H. McNeal, of Rock Island (Edward L. Eagle, of Rock Island, of counsel), for the People.

DE YOUNG, J.

An information charging Joe Lavendowski with violations of the Illinois Prohibition Act was filed in the county court of Rock Island county. The information consisted of four counts, upon the second and fourth of which a nolle prosequi was entered. Lavendowski was charged by the first count with maintaining a common nuisance, and by the third count with the unlawful possession of a still designed for the illegal manufacture of liquor without having a permit therefor from the Attorney General. The plea was not guilty. A jury trial resulted in a verdict finding Lavendowski guilty upon the first and third counts. Motions for a new trial and in arrest of judgment were denied. Judgment was rendered upon the verdict, and Lavendowski was sentenced on the first count to imprisonment at the state farm at Vandalia for one year, and to pay a fine of $500, and upon the third count to imprisonment at the same farm for six months, and to pay a fine of $200. The costs of the prosecution were adjudged against him, and it was ordered that the terms of imprisonment be consecutive. He prosecutes this writ of error for a review of the record.

A complaint for a search warrant, verified by Steve Cutlich, was made before the county judge of Rock Island county. It was charged in the complaint that the affiant had just and reasonable grounds to believe, and did believe, that intoxicating liquor was unlawfully manufactured and possessed at and within a certain two-story frame building, together with outbuildings, barns, and sheds belonging thereto, situated on the southeast quarter of section 8, township 20 north, range 2 east, of the fourth principal meridian, in the town of Cordova, in Rock Island county; that the reason for the affiant's belief were that he was near the premises on June 7, 1926, and smelled the odor of fermenting grain mash used in the manufacture of intoxicating liquorcommonly called hootch, or home-made whisky; that he was familiar with that odor, knew it when he detected it, and that he was sufficiently near the premises to know that the odor came therefrom; that the liquor was manufactured and possessed with the intent to violate the Prohibition Law; that no permit had been obtained from the Attorney General to manufacture and possess the liquor, and that it was neither intended for nonbeverage purposes nor was it wine for sacramental purposes. The county judge issued a search warrant upon the complaint. The return of the sheriff indorsed on the search warrant set forth that he had executed the writ by searching the premises; that he had found and seized two large copper stills, ten five-gallon jugs, two three-gallon jugs, six one-gallon jugs, and two ten-gallon kegs, all filled with intoxicating liquor, and one ten-gallon keg containing about two gallons of such liquor, and that he had arrested Lavendowski.

Before the trial, Lavendowski filed his petition to quash the search warrant and to impound and exclude the evidence obtained thereby, on the ground that the state's attorney purposed upon the trial to use such evidence against the petitioner, in violation of his constitutional rights. The prayer of the petition was denied. On the same day a motion to quash the information was made and overruled.

Upon the trial three deputy sheriffs testified in behalf of the prosecution. It appeared from their testimony that they found on the premises a shed or building about 10 or 12 feet wide and 18 or 20 feet long, covered by a strawstack; that in the shed they found the stills and liquors, which they seized; that the stills were made of copper, and were about 2 1/2 or 3 feet in height as well as in diameter, and that each still had ten burners, was heated by kerosene, and was connected at the top with coils, which ran to a tank. A chemist made an analysis of the liquor, and found that it contained 45.76 per cent. of alcohol by volume. In a conversation with one of the deputy sheriffs, Lavendowski stated that the liquor belonged to him, and that he had been in that business a few weeks. Objections to the evidence of the prosecution and motions to exclude it on the ground that it was obtained by an illegal search and seizure were made and denied. The plaintiff in error did not testify, and no evidence was offered in his behalf.

The first contention made by the plaintiff in error for a reversal of the judgment is that sections 29 and 30 of the Illinois Prohibition Act (Cahill's Stat. 1925, pp. 1035, 1036; Smith-Hurd Rev. St. 1925, pp. 1101, 1102), which authorize the making of a complaint, verified by affidavit, for a search warrant and the issuance of such a warrant upon reasonable cause shown, make no provision for an orderly proceeding terminating in a final judgment with reference to the disposition of the property seized or the person in whose custody the property may be found, and hence deprive him of his liberty and property without due process of law, in violation of section 2 of article 2 of the Constitution. A search warrant is generally defined to be an order in writing, in the name of the people, signed by a magistrate, and directed to a peace officer, commanding him to search for personal property and bring it before the magistrate. 35 Cyc. 1265. Section 30 of the act commands the peace officer to whom the warrant is directed forthwith to bring the seized intoxicating liquor, with its containers, and the person or persons in whose possession they are found, before the magistrate who issued the warrant, or before some other judge or justice of the peace having cognizance of the case, ‘to be dealt with according to law.’ A search warrant is not an action or proceeding in which the title to, or the right to, the possession of the property seized, or the liberty of its custodian, is determined. These are questions which must necessarily be adjudicated in an action or prosecution which follows the issuance and return of the search warrant. Hence the command of the warrant that the propertyseized and the person in possession of it shall be brought before the magistrate, to be dealt with according to law.

Due process of law in the regular course of judicial proceedings requires notice to the defendant, as a matter of right and not of favor, before he or his property can be condemned. The essential elements of due process of law are notice and an opportunity to be heard in the protection and enforcement of his rights before a court of competent jurisdiction, in an orderly proceeding adapted to the nature of the case. Simon v. Craft, 182 U. S. 427, 21 S. Ct. 836, 45 L. Ed. 1165;Lent v. Tillson, 140 U. S. 316, 11 S. Ct. 825, 35 L. Ed. 419;Turpin v. Lemon, 187 U. S. 51, 23 S. Ct. 20, 47 L. Ed. 70;City of Chicago v. Cohn, 326 Ill. 372, 158 N. E. 118;People v. Marquis, 291 Ill. 121, 125 N. E. 757, 8 A. L. R. 874;People v. Cohen, 219 Ill. 200, 76 N. E. 388. After the return of the search warrant, the information in the case at bar was filed. Plaintiff in error made a motion to quash the information. Upon the denial of that motion he filed a plea of not guilty. A jury trial followed, which resulted in a verdict adverse to him. After the verdict was returned, he made motions for a new trial and in arrest of judgment, both of which were denied. Judgment was rendered only after a trial in which he participated from its inception to its conclusion. Plaintiff in error had his day in court. He was afforded the opportunity to be heard in his defense, and availed himself of that opportunity. The prosecution was conducted under the general law, and was adapted to the nature of the case. The court had jurisdiction to hear and determine the cause. No element of due process of law was wanting.

The contention that the issuance, service, and return of the search warrant deprived plaintiff in error of the property seized is likewise untenable. At common law the search warrant was not used to try the title to, or the right to, the possession of goods. People v. Kempner, 208 N. Y. 16, 101 N. E. 794, 46 L. R. A. (N. S.) 970, Ann. Cas. 1914D, page 169. Neither section 29 nor section 30 of the Prohibition Act makes provision for the forfeiture or destruction of the property taken upon a search warrant. The record in the case at bar fails to show any action, proceeding, or order concerning the title to, or the ownership or possession of, the seized property, nor does it appear that any dispositionof the property was made. Hence plaintiff in error was not deprived of the property taken by authority of the search warrant. Moreover, even if, after his conviction, the property had been forfeited and destroyed, he would have no ground for complaint. An owner of property has no vested or constitutional right to use or allow the use of it for purposes injurious to the public health or morals, and the state has the right, in the exercise of its police power, to provide for the seizure and destruction of property so used. Gambling instruments, in their nature incapable of use for any other purpose, and intoxicating liquors held contrary to law, are within this rule. Under the Prohibition Act, intoxicating liquors, when illegally possessed, are no longer recognized as property. Section 28 of the act (Cahill's Stat. 1925, p. 1035) expressly...