People v. Wrest

• Decision Date: 30 October 1951
• Docket Number: Gen. No. 51M1
• Citation: People v. Wrest, 103 N.E.2d 171, 345 Ill.App. 186 (Ill. App. 1951)
• Parties: PEOPLE v. WREST et al.
• Court: Appellate Court of Illinois

Page 171

103 N.E.2d 171

345 Ill.App. 186

PEOPLE v.WREST et al.

Gen. No. 51M1.

Appellate Court of Illinois, Fourth District.

Oct. 30, 1951.

As Modified on Denial of Rehearing Jan. 18, 1952.

A. M. Fitzgerald, Springfield, G. Edmond Cook, Madison, for appellant.

Ivan A. Elliott, Atty. Gen. of Illinois, Austin Lewis, State's Atty. of Madison County, Granite City, (William C. Wines, Harold G. Talley, James C. Murray, Raymond S. Warnow, John T. Coburn, Asst. Attys.Gen. of counsel), for appellee.

BARDENS, Justice.

On May 12, 1950, Robert C. Winder, Captain of the Illinois State Highway Police, together with Norman Lee, Chief investigator for the Department of Criminal Identification of the State of Illinois, aided by other state pplice, and in possession of a search warrant issued by a Justice of the Peace of Madison County for the search of the '200 Club' in the City of Madison, made a raid on said club and seized money and property, the material items of which are summarized as follows: Item 1, dice dice boxes, dice cards, dealing checks, and keys.Item 2, horse betting wall board, betting cards, horse betting tabs, blackjack table and covers, billing machine full of racing tabs.Item 3, adding machines, 'lightning cashier,' and coin meter.Item 4, money in coin and currency, checks and a fifty dollar U. S. Savings Bond.There were other items of property seized, but the same are not of importance to this decision and are not herein classified.

A return of the property seized was later made to the Justice of the Peace, who entered an order impounding the property and thereafter the County Court of Madison County also entered an order impounding the property and ordering the money placed in the custody of Austin Lewis, the State's attorney of said county.The impounding order provided that the property should be kept for use as evidence upon the trial.Thereafter, informations were filed against the two defendants who were the operators of the '200 Club,' together with a petition for confiscation and disposition of the property and money seized.

The defendants did not file a motion to suppress the evidence but did, on May 31, 1950, each enter a plea of guilty to operating a bookmaking establishment for horse race betting.Each was fined the sum of $2,000 upon the charge, which fines were paid in full.

Thereafter, the defendants answered the petition of the state's attorney and attorney general for confiscation and disposition of the property and money seized and petitioned the court to order such property and money restored to them.They set up that they were the owners and in possession of the property when it was seized; that the search and seizure were illegal; that money is not of such a nature as to be subject to destruction or confiscation; that the other property seized was not shown to have been in illegal use; and that no criminal proceedings were then pending against them.Other and supplemental pleadings were filed.After hearing evidence and considering briefs and arguments, the lower court granted the relief prayed by the state's attorney and attorney general, ordered the monies to be paid to the Common School distributable fund of Madison County, and ordered the other property destroyed.From that order defendants appeal.

The evidence produced by the people disclosed that Normal Lee had been assigned to investigate horse book establishments in Madison County; that on May 10, two days before the raid, together with Mr. Brennan, his supervisor, he entered the '200 Club,' the door being unlocked.He described the sign on the outside of the building designating the building as the '200 Club,' and the interior as containing a small coffee shop and sandwich counter and other counters that ran along the walls, such counters being away from the walls and about four feet high and eighteen to twenty feet long and two feet deep.Behind the counters were well boards with names of horses, numbers of horses, races, and other writing thereon.The evidence further showed that there were two entrances to the premises, one in the front corner and one in the rear, and that the wall boards ran long the side wall of said building; that the counter was in two sections with an entrance or opening or four to five feet between them; and that in addition to the counters there were two cages described as 'cashiers' cages.'One of these cages was between the two counters and the other one was at the end.In this main room with the counters and cages were many chairs and some benches which faced the wall boards.

Mr. Lee further described the activities in the room on the 10th of May.He stated that there were approximately 75 people in the room on that date and that patrons were placing bets; that the people placing bets had a racing form and checked with the horses on the wall board; that they would then go to the counters, place their bet with a man behind the counter on some horse in the race; that they used United States currency; that he saw patrons place money on the counter which was accepted by one of the men behind the counter and placed in a drawer beneath the counter.The bettor then would receive a ticket.Afterwards he saw some patrons go up and lay a ticket in the window of the 'cashiers' cage' and receive money from the man in the cage.Mr. Lee made a bet of four dollars himself in the manner indicated.He further testified that he went back to the 'club' on May 11 about four o'clock in the afternoon and saw about the same situation and actions as he saw on the previous day.

On May 12th a search warrant was issued by the Justice of the Peace and directed to Harold Beneze, a constable but delivered by the Justice to an assistant attorney general who in turn delivered the warrant to Captain Winder.A group of about twelve state police participated in the raid, besides Winder and Lee, part of them going in the front and part in the rear door of the club.Both doors were unlocked and open to the public.Captain Winder was in charge of the group that went in the front door and upon entering blew his whistle, announced a raid was in progress, and served the warrant on a man standing behind one of the counters.There were some 175 to 200 people present at the time and the patrons were allowed to go out the back door, but were asked to leave their name and address.The defendant Wrest was present at the time of the raid which was started about three o'clock P.M.A truck was brought to the 'club' at about five P.M. and the property in question was loaded upon the truck and taken away.The money that was seized was taken from the drawers under the counters and in the cashiers' cages and was taken to the police station that evening and later on to a bank for safe keeping.The evidence showed the main room of the 'club,' in addition to counters, cages, wall boards, and chairs, contained betting cards, horse betting tabs, a 'lightning cashier,' coin meter, and several adding machines.None of the officers actually saw any bets placed on the day of the raid.

In addition to the main room in the building, there was what was designated as a back room, formed by a partition, in which was the end cashier's cage above referred to.This back room was not open to the public but was accessible through a doorway which had no door.In this back room were found certain items of property classified under Item 1.In the rear of this back room was another partition behind which was a safe which contained approximately fifteen thousand dollars but no claim by the people was made as to the money in this safe and it was turned back to the defendants or their attorney.

A stipulation was entered into to the effect that at the time of the seizure the money in question was the property of the defendants.The People proved a number of prior convictions of the defendants on charges of keeping a gaming house.Defendants, however, outside of stipulations, offered no evidence.

Defendants' assignments of error can be summed up substantially as follows: (1) That the search and seizure were illegal; (2) that there is no evidence of illegal use of the property at the time of its seizure; (3) that legal currency and coin of the United States of America can never be contraband and destroyed or confiscated; and (4) that the chattel property is of a legal and inoffensive character and should not be destroyed.With regard to the assignment of error that the search and seizure were illegal, the defendants contend that most of the property taken was not described in the warrant; that the warrant was not served before the seizure or by any constable or sheriff or local police officer; and that the state police were not authorized to serve the warrants.

In our opinion it is not necessary to treat separately of each of the contentions regarding the seizure because we hold that the seizure was legal upon the basis that the officers had reasonable grounds to believe that a crime was being committed in their presence and that, therefore, they had a right to make an arrest and a consequent search of the immediate premises without any search warrant at all.In the People v. Dubin, 367 Ill. 229, 10 N.E.2d 809 where the officers had no search warrant, the court, after reviewing the evidence, found that the officers did have reason to suspect a crime was being committed and held that the search and seizure of the defendant's dental office was not illegal.The court, 367 Ill. on page 235, 10 N.E.2d on page 812, uses the following language: 'They had reason to suspect an misdemeanor was being committed, and, as incidental to the arrest, were authorized to search for, and to seize any property pertaining to this crime.'

Citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231.In the People v. Tabet, 402 Ill. 93, 83 N.E.2d 329, 333, wherein the defendants were convicted of a crime of larceny and complained that they were unlawfully...