People v. Martin

• Court: Illinois Supreme Court
• Writing for the Court: HEARD
• Citation: People v. Martin , 314 Ill. 110, 145 N.E. 395 (Ill. 1924)
• Decision Date: 28 October 1924
• Docket Number: No. 16093.,16093.
• Parties: PEOPLE v. MARTIN.

314 Ill. 110

145 N.E. 395

PEOPLE

v.MARTIN.

No. 16093.

Supreme Court of Illinois.

Oct. 28, 1924.

Error to Appellate Court, Fourth District, on Error to County Court, Franklin County; A. D. Morgan, Judge.

William H. Martin was convicted of violating Prohibition Act, and brings error.

Reversed.

Duncan, C. J., and Farmer and Stone, JJ., dissenting.J. E. Carr, of West Frankfort, and George Sawyer, of Marion, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Roy C. Martin, State's Atty., of Benton, George C. Dixon, of Dixon, and Nealy I. Glenn, of Benton, for the People.

HEARD, J.

At the April term of the county court of Franklin county, Illinois, the state's attorney of said county filed an information in said court against plaintiff in error for alleged violation of the Prohibition Act (Smith-Hurd Rev. St. 1923, c. 43). The information contained three counts, the first of which alleged ‘that William, H. Martin, on the 25th day of January, in the year of our Lord 1923, at and within said county of Franklin, in the state of Illinois aforesaid, did then and there unlawfully have and possess a still, contrary to the form of the statute,’ etc. The second county alleged ‘that William H. Martin, on the 25th day of January, in the year of our Lord 1923, at and within said county of Franklin, in the state of Illinois aforesaid, did then and there unlawfully have and possess intoxicating liquor, contrary to the form of the statute,’ etc. The third county alleged that Martin did unlawfully keep and maintain a common unisance. A nolle prosequi having been entered as to the third count, it is not now under consideration. A judgment trial resulted in a verdict of guilty on the first and second counts of the information. Motions for a new trial and in arrest of judgment were overruled, and Martin was sentenced on the first count of the information to pay a fine of $200 and costs, and on the second count of the information to pay a fine of $1,000, and to be imprisoned in the county jail of said county for the term of six months. The record was reviewed by the Appellate Court for the Fourth District upon writ of error, and that court affirmed the judgment upon the first count of the information and held that the judgment on the second count was erroneous, assigning the reason that the court had no power to impose both fine and jail sentence for possessing liquor, and remanded the cause as to the second count, with instructions to the trial court to enter a proper judgment in accordance with the law. A writ of certiorari having been allowed by this court, the record is now here for review upon writ of error.

It is contended by plaintiff in error that both counts of the information are insufficient, in that neither count charges a crime against the laws of the state of Illinois, and that a judgment based upon either count is void. Since the passage of the Prohibition Amendment to the Constitution of the United States (Amend. 18) the United States courts and the courts of last resort of many of the states have passed upon the question of what allegations are necessary in an indictment or information charging violation of the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.) and other prohibition acts, with varying results. A discussing of these various cases would subserve no good purpose, as an examination of them discloses that they are based upon local statutes, upon local statutory provisions as to the sufficiency of indictments, or upon previous local decisions as to what allegations are necessary in an indictment.

By section 289 of chapter 37 of our statutes (Smith-Hurd Rev. St. 1923) it is provided that ‘every information shall set forth the offense with reasonable certainty, substantially as required in an indictment.’ Section 716 of chapter 38 provides:

‘Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.’

Section 3 of chapter 43, in force at the time of the alleged commission of the offense, provides:

‘No person shall on or after the date when this act goes into effect, manufacture, sell, barter, transport, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicatingliquor as a beverage may be prevented. Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, delivered, furnished and possessed, but only as herein provided, and the Attorney General may, upon application, issue permits therefor, but in case the office of commissioner of prohibition shall be created, then such commissioner shall issue said permits: Provided, that nothing in this act shall prohibit the purchase and sale of warehouse receipts covering distilledspirits on deposit in government bonded warehouses.’

Section 28 of said chapter provides:

‘It shall be unlawful to have or possess any liquor intended for use in violating this act or property designed for the illegal manufacture of liquor, and no property right shall exist in any such liquor or property.’

Section 27 provides:

‘It shall be unlawful for any person to own, operate or maintain, or have in his possession or any interest in a still, unless he shall first secure a permit from the Attorney General, but in case the office of commissioner of prohibition shall be created, then from such commissioner, to own such still.’

[1] By the laws of this state, the possession of intoxicating liquor may be lawful, or its possession may be a violation of either section 3 or section 28, or both. Sections 3 and 28 are not descriptive of the same offense. A person may violate section 3 by possessing intoxicating liquor, without being authorized by law to possess the same, without intending to use the same in violating the Prohibition Act, which intention is a necessary element in a violation of section 28. On the other hand, a person may violate section 28 by intending to violate the act with liquor which he lawfully possesses, under the provisions of the act, and so not violate section 3, The second count of the information is not in the language of either section. It neither charges that plaintiff in error possessed intoxicating liquor without being authorized by law to possess the same, nor that he possessed intoxicating liquor with intent to violate the provisions of the Prohibition Act, but simply alleged that he possessed the same, which, of itself, is not a violation of the law. The use of the word ‘unlawfully’ in connection with the allegation of possession does not have any effect, inasmuch as the use of this word represents merely the conclusion of the pleader and does not state any fact from...