People v. Macklin

• Decision Date: 22 June 1933
• Docket Number: No. 21775.,21775.
• Citation: People v. Macklin, 353 Ill. 64, 186 N.E. 531 (Ill. 1933)
• Parties: PEOPLE v. MACKLIN.
• Court: Illinois Supreme Court

353 Ill. 64

186 N.E. 531

PEOPLE

v.MACKLIN.

No. 21775.

Supreme Court of Illinois.

June 22, 1933.

Error to Criminal Court, Cook County; Harry M. Fisher, Judge.

Bob Macklin was convicted of carrying a concealed weapon, and he brings error.

Reversed and remanded.

Benjamin C. Bachrach, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the People.

PER CURIAM.

Bob Macklin was indicted in the criminal court of Cook county for carrying a concealed weapon.He pleaded not guilty and waived a trial by jury.The court found him guilty and sentenced him to ten days' imprisonment in the house of correction of the city of Chicago.Charging the invasion of his constitutional rights, he prosecutes this writ of error.

Prior to the commencement of the trial, the plaintiff in error made a motion to suppress the evidence relating to a revolver taken from him by a police officer.In support of the motion the plaintiff in error, forty-five years of age and a resident of Chicago, testified that on July 6, 1932, at about 8 o'clock in the evening, he and another man, with whom he was not acquainted, were walking north on Western avenue between 122d and 123d streets in the city of Blue Island in Cook county; that he was quiet, sober, and had not committed any offense whatever; that he was carrying to his home a revolver wrapped in paper; that a police officer approached him, commanded him to raise his hands, searched and arrested him, and committed him and his companion to jail.The police officer had neither a warrant to arrest, nor a warrant to search, the plaintiff in error.The motion was denied.

Upon the trial, the prosecution called as witnesses three police officers of the city of Blue Island, and they testified as follows: On July 6, 1932, at about 10:40 p. m., while in the performance of their duties, they were riding in an automobile on Western avenue.They saw the plaintiff in error leave a gasoline service station located at the northwest corner of Western avenue and 123d street, and walk north.After proceeding about twenty-five feet another man joined him.The police officers stopped the two men and inquired where they were going.The plaintiff in error answered that he was on his way home.To ascertain whether he was armed, one of the officers placed his hands upon him.He thereupon leaned forward in an attempt, apparently, to reach a weapon.The officer, after commanding the plaintiff in error to raise his hands, discovered a revolver concealed under the latter's belt and coat or jacket.The officer took the weapon, found it loaded with shells, and placed the plaintiff in error under arrest.He had not committed an offense in the presence of the officers and they had no information that he was wanted to answer a criminal charge.The revolver was admitted in evidence.

To the testimony of the plaintiff in error given on the preliminary motion, he added on the trial that he stepped into the gasoline service station to inquire about the distance to the street car line on Western avenue; that he obtained the revolver from a man for whom he had worked and was carrying it to his home to be used for its protection; that a string was wound about the paper in which the revolver was wrapped and the weapon was not exposed to view; that when the police officer commanded him to raise his hands the revolver was taken from the paper and that the police officers struck him on the head, knocked him down, and beat him.When the introduction of evidence was concluded, the plaintiff in error renewed his motion to exclude the prosecution's evidence on the ground that his constitutional rights had been violated.The motion was again denied.

The contention of the plaintiff in error is that his arrest, the search of his person, and the seizure of his revolverviolated section 6 of article 2 of the Constitution, which provides: ‘The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.’

At common law there was the right of arrest by a private person or an officer, without a warrant, of a person walking in the streets at night, when there was reasonable ground to suspect that he was a malefactor.Lawrence v. Hedger, 3 Taunt. 14;Hawkins' Pleas of the Crown (8th Ed.)pp. 120, 128, 129....