People v. McCurrie

• Decision Date: 20 December 1929
• Docket Number: No. 19788.,19788.
• Citation: 337 Ill. 290,169 N.E. 214
• Parties: PEOPLE v. McCURRIE.
• Court: Illinois Supreme Court

337 Ill. 290

169 N.E. 214

PEOPLE

v.McCURRIE.

No. 19788.

Supreme Court of Illinois.

Dec. 20, 1929.

Error to Circuit Court, Massac County; D. T. Hartwell, Judge.

Ike McCurrie was convicted of a second violation of the Illinois Prohibition Act, and he brings error.

Affirmed.John W. Browning, of Harrisburg, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Roy R. Helm, State's Atty., of Metropolis, for the People.

SAMUELL, J.

Plaintiff in error, Ike McCurrie, alias Hacker McCurrie, was indicted by the grand jury at the April, 1929, term of the circuit court of Massac county for a second violation of the Illinois Prohibition Act (Smith-Hurd Rev. St. 1929, c. 43, §§ 1-50), the indictment charging a former trial and conviction at the July, 1927, term of the county court of Massac county for unlawful possession of intoxicating liquor in violation of the Illinois Prohibition Act; that after said conviction and sentence, and on the 2d day of March, 1929, he was charged with the unlawful possession of intoxicating liquor for the purpose of sale in the first count and the unlawful possession in the second count, all in violation of the Illinois Prohibition Act. Plaintiff in error was tried before a jury in the circuit court of Massac county at the April, 1929, term. At the close of the trial the court gave to the jury two separate typewritten forms of verdict, one to be used by the jury in case the plaintiff in error was found guilty of a second offense of violating the Prohibition Act, and the other to be used if he was found not guilty. The first form submitted was as follows: ‘We, the jury, find that the defendant, Ike McCurrie, alias Hacker McCurrie, was convicted in the county court of Massac county, Illinois, for the crime of unlawfully possessing intoxicating liquor in violation of the Prohibition law in the State of Illinois, as charged and as set forth in the indictment in this case. And we further find that the said defendant, Ike McCurrie, alias Hacker McCurrie, guilty of unlawfully possessing intoxicating liquor for the purpose of sale in manner and form as charged in the indictment in this case. And we further find that this last mentioned possession of intoxicating liquor for the purpose of sale is a second or subsequent offense.’ The second form was as follows: ‘We, the jury, find the defendant Ike McCurrie, alias Hacker McCurrie, not guilty.’ The jury returned the first form of verdict given to them by the court, and immediately thereunder there was added with pen and ink the following words: ‘We, the jury, find the defendant, Ike McCurrie (alias Hacker McCurrie) guilty,’ and thereafter each juror signed his name. No poll of the jury was requested or made. Upon the verdict finding the plaintiff in error guilty as recited, and motion for new trial and arrest of judgment being denied, the court entered judgment and sentenced plaintiff in error to the state penitentiary.

The evidence discloses the following state of facts: One mile north of the city of Metropolis, Ill., is a cemetery, the south portion of which is the Odd Fellows' cemetery and the north portion of which is the Masonic cemetery. The cemetery is on the west side of the public road. Diagonally across the road from it, and southeast thereof, is the home of Mrs. Edna Oakes and her husband, Odis Oakes. South of that residence is the home of Mrs. Clara Dummeier and her husband, Charles Dummeier. South of the Dummeier home is the residence of C. S. Adkins, the father of Mrs. Oakes and of Mrs. Dummeier; and immediately south of C. S. Adkins' is the house of Charles Adkins, his son. Saturday afternoon, March 2, 1929, Mrs. Oakes, Mrs. Dummeier, and their mother, Mrs. Adkins, had been to Metropolis and were driving home in Mrs. Oakes' car, going northerly on the public road leading from Metropolis to their homes and to the cemetery. Plaintiff in error and Reed Barrett, in a sedan automobile frequently driven by McCurrie, overtook and passed the three women in the Oakes car on this road leading north from Metropolis. The Oakes car, with the three women in it, stopped in front of the Dummeier home. They observed the McCurrie car. It went into the cemetery on the north drive in the Masonic section, drove west, then south, then east, coming east on the second driveway in the Odd Fellows' section, from the south, being the driveway that comes out on the road at the first gateway from the south. The Odd Fellows' cometery is well filled with graves. The McCurrie car stopped on the second driveway from the south, in the Odd Fellows' cemetery, about midway from the east to the west, and one of these two men got out. He had something that glistened in the sun like glass, which he deposited under a small evergreen tree, the tree being about five feet high, with branches spreading from three to five feet and growing down to the ground. The man then re-entered the car. Ti proceeded eastwardly on the cemetery drive, came onto the public highway, headed south, met and passed the Oakes car that was parked in front of the Dummeier home, the women plainly recognizing the occupants of the car, namely, plaintiff in error and Barrett, and then the car proceeded southerly toward Metropolis. The women notified their father and husband, C. S. Adkins. He entered the Oakes car with them and they drove to the place in the cemetery where the McCurrie car had stopped. Mrs. Oakes and Mrs. Dummeier pointed out to Adkins the tree in question. He got out of the car on the driveway in the cemetery, walked some twenty feet from it to the tree in question, and there, underneath the branches of the evergreen tree, he found a one-gallon glass jar of white mule corn whisky. Without disturbing it he notified the sheriff. The sheriff and his deputy at once came out. Adkins took them to the designated spot and showed them the one-gallon jar of whisky. Adkins and the two officers made a further search. About five feet south, in some honeysuckles, they found another one-gallon glass jar of white mule corn whisky, and close by, in the honeysuckles, they found four half-gallon glass fruit jars of white mule corn whisky. The officers returned to Metropolis, had their car and a driver return them to the cemetery, dismissed the car and driver, and stayed in the cemetery for about an hour and a half, until after dark. After dark a car drove in on the same second driveway from the south in the Odd Fellows' cemetery, and the car stopped and lights were switched out. The motor continued in operation. A man got out and approached within three or four feet of the jug of whisky. The sheriff apprehended him. It was Reed Barrett. The man in the car was plaintiff in error. They were the same two men who were there in the afternoon, in the same car, at the same place.

Plaintiff in error and Barrett were the only witnesses for the defense on the trial, and both admitted being in the cemetery on each occasion, but denied having any white mule whisky there on that date. They each denied any knowledge of any liquor or how it came there. Plaintiff in error denies he took a glass jug from his car and placed it under a tree. He claims he took flowers there to his child's grave in the afternoon, the lot being on the north end of the cemetery and not on the south end. He further claims to have stopped in the Odd Fellows' cemetery in the afternoon, about one block from the place where the sheriff arrested him and Barrett that evening, for the purpose of dumping some rubbish. He does not state whether he did or did not get out of the car for that purpose at that time. He further testified that he followed the same road in the evening that he did in the afternoon; that he wanted to take ‘Mr. Barrett for a little drive.’ In the evening he stopped at the place where he was arrested, for the purpose of letting Barrett urinate. He turned out the lights.

Barrett testified that he was with McCurrie both times, the first trip made for the purpose of taking flowers, the second trip for the purpose of meeting a girl; that McCurrie turned off the lights and the sheriff arrested him immediately. Barrett testified he got out of the car in the afternoon and that he carried the trash. He says he did not get out of the car in the evening for the purpose of urinating. He says, on cross-examination, that they did not throw the trash in the cemetery.

Plaintiff in error assigned fourteen errors, but since only four have been briefed and argued, all other assignments of error will be disregarded. The errors assigned are: (1) The improper admission of People's Exhibits A, B, C, and D, being, respectively, the information and records of the proceedings in the county court of Massac county in 1926 and 1927 tending to show a former conviction; (2) the verdict was not in proper form; (3) improper instructions; (4) weight of evidence.

Plaintiff in error zealously urges that the evidence offered on the part of the people to prove a former conviction is insufficient to show jurisdiction on the part of the county court to enter the orders and judgment mentioned in People's Exhibits B, C, and D; that the exhibits do not show said court to have been regularly organized, constituted, or convened. The objection, in substance, questions the form of the placita. We concede the language employed does not follow the generally recognized and customary forms, yet there is, in our opinion, sufficient information contained in each placita to indicate in what court the matter was...