People v. Lind

• Decision Date: 15 December 1938
• Docket Number: No. 24774.,24774.
• Citation: 370 Ill. 131,18 N.E.2d 189
• Parties: PEOPLE v. LIND.
• Court: Illinois Supreme Court

370 Ill. 131

18 N.E.2d 189

PEOPLE

v.LIND.

No. 24774.

Supreme Court of Illinois.

Dec. 15, 1938.

Error to Circuit Court, St. Clair County; Maurice V. Joyce, Judge.

Barney Lind was convicted for the larceny of thirty chickens, and he brings error.

Reversed and remanded.Lindauer & Lindauer and A. B. Davis, all of Belleville, for plaintiff in error.

Otto Kerner, Atty. Gen., Louis P. Zerweck, State's Atty., of Belleville, and A. B. Dennis, of Austin (R. V. Gustin, of East St. Louis, fo counsel), for defendant in error.

ORR, Justice.

Barney Lind and his sixteen-year-old son, Edwin, were jointly indicted, tried and convicted in the circuit court of St. Clair county for the larceny of thirty chickens, valued at $20. The elder Lind seeks review of his conviction by this writ of error.

When Barney Lind, a coal miner, arrived at his home in Lebanon from work about 3:30 P. M. on September 11, 1937, his son, Edwin, asked him to go dove hunting. It was the first day of the open season. They had an early supper and left together in their autombile shortly after 4 P. M., one taking a shotgun and the other a rifle. After hunting along a railroad right-of-way, where the boy killed four doves, they crossed into a nearby stubble field of a farm owned by Mike Hohrein. There were dead trees and a pond near this field, but no doves were found there and no shots were fired. As darkness approached they quit hunting and on the way back to their car left the stubble field and passed through the Hohrein farm yard. No one was living on the farm at the time as three weeks earlier Hohrein had conducted a public sale which Barney Lind had attended, buying various small articles of little value. While Lind and his son were passing between the house and the barn, two shots were fired at them without warning. Both were knocked down, the father being shot in the body and his son in the leg. They recognized Hohrein as the one who shot them, and asked for mercy. Hohrein then left without rendering any aid to them, and notified police officers and a doctor to come to his farm as he had shot some prowlers. With some difficulty, Lind and his son washed their wounds at the Hohrein well, and reached their automobile. They drove on home without delay and called a physician to treat them, and the father was later taken to a hospital. As a result of Hohrein's call, deputy sheriffs and other officers went to the Lind home and placed the father and son under arrest on a charge of stealing some thirty Rhode Island Red chickens from Hohrein's farm five days earlier, September 6. Soon after the father and son were removed to jail, Hohrein and several deputies came to the Lind home and talked to Mrs. Lind. They had no search warrant. There is a dispute over whether they secured her permission to search the premises for the chickens or whether, as she and her sisters said, they searched without asking her. The officers opened the henhouse and, with the aid of Hohrein and a flash-light, found thirty-one chickens which Hohrein claimed and seized as his own. The evidence shows that she and her husband had hatched and raised Rhode Island Red chickens that year, and chickens of the same breed remained there after Hohrein removed those claimed by him. Two old pairs of shoes which Hohrein claimed belonged to his deceased father were also discovered and taken. Barney Lind testified that he had bought the shoes with some old magazines in a grabpackage lot, at the Hohrein sale, for 25 cents. Some jelly which Mrs. Lind testified had been put up by her was also seized and claimed by Hohrein.

Prior to the commencement of their trial, Lind and his son filed a motion to suppress all evidence obtained by a search of their premises without a search warrant and to suppress all testimony pertaining to the same, claiming it was obtained by an illegal search and seizure, in violation of their rights guaranteed by section 6 of article 2 of the constitution, Smith-Hurd Stats.Const. art. 2, § 6. The circuit court denied their motion and this ruling is assigned as error.

There is direct and irreconcilable conflict in the testimony here as to whether Lind's wife gave her consent to the officers to search the premises. She and her two sisters, who were with her, emphatically deny that such consent was given, while the officers testified to the contrary. Even if it be assumed that she consented to the search, the more serious question arises whether the wife's consent to a search by men she knew to be a sheriff and deputy sheriff can operate as a waiver of her husband's constitutional rights. This point has never been squarely raised or passed upon in this State. In People v. Mizzano, 360 Ill. 446, 196 N.E. 439, the wife's waiver was not really in issue, inasmuch as the three defendants, after their arrest, had already admitted the officers to that part of the premises where some $2500 worth of stolen property was found saying [page 440]: ‘You can have whatever is in there.’ In deciding the issue this court said: ‘The facts in this case do not bring it within those cases cited by counsel for plaintiffs in error.’ We have searched the prior decisions of this court and find no other cases where the issue presented was the waiver, by his wife, of a defendant's constitutional protection against illegal search and seizure. In People v. Marvin, 358 Ill. 426, 193 N.E. 202, cited by the People, we merely emphasized the well-known rule that the constitutional prohibition does not extend to all searches and seizures but only is a guard or shield against unreasonable ones. People v. McGurn, 341 Ill. 632, 173 N.E. 754;People v. Patterson, 354 Ill. 313, 188 N.E. 417. In the Marvin Case, as in others before and since, we pointed out that there was no search involved when the contraband articles were in open view-that a search implies a prying into hidden places for that which is concealed. This principle has no application in the present case because the opening of henhouse gates and doors at night, and the searching with flash-lights to discover chickens allegedly stolen, is an invasion of property rights which any reasonable person would say would constitute an illegal search, if made without consent or a search warrant. Another important difference was pointed out in People v. Poncher, 358 Ill. 73, 192 N.E. 732, where the oft-confused distinction between search of one's person for a concealed weapon and the search of one's property was clearly made. There, the exhibits mentioned were held to be unlawfully obtained and erroneously admitted in evidence. This court said [page 734]: ‘The opinion in that case [North v. People, 139 Ill. 81, 28 N.E. 966] cannot be construed to mean that, if a person is lawfully arrested on a criminal charge which involves his possession of particular property, the officers are at liberty to search his home, his place of business, or buildings of which he may have the right of occupancy, without first obtaining a search warranttherefor. If it could be so construed, then a person might be arrested upon a public street, and, after his arrest, his home could be entered and searched without a warrant. What the [North] opinion means to hold, and does hold, is that, if a person is arrested, he may be searched for weapons and for property in his immediate personal possession which are involved in the crime charged.’ Although a question of waiver was not at issue in People v. Brocamp, 307 Ill. 448, 138 N.E. 728, we reversed the judgment of conviction where a defendant's home was illegally searched, saying [page 730]: ‘The officers had no right whatever to enter his home by force or by permission of another in his absence and search his premises without first obtaining the proper warrant for such search and seizure, as required by our Constitution.’

In other jurisdictions, we find some conflict of authorities, but by far the greater number and weight of judicial decisions favor the view that a wife cannot waive her husband's constitutional...