United States ex rel. Pugh v. Pate
Decision Date | 19 September 1968 |
Docket Number | No. 16539.,16539. |
Citation | 401 F.2d 6 |
Parties | UNITED STATES of America ex rel. Jesse PUGH, Petitioner-Appellant, v. Frank J. PATE, Warden of the Illinois State Penitentiary, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Sam Adam, Stanley A. Bass, Chicago, Ill., for appellant.
Donald J. Veverka, William G. Clark, Atty. Gen., of Illinois, Chicago, Ill., John J. O'Toole, Thomas E. Brannigan, Asst. Attys. Gen., of counsel, for appellee.
Before SCHNACKENBERG, KILEY and FAIRCHILD, Circuit Judges.
Rehearing Denied En Banc September 19, 1968.
Jesse Pugh, petitioner, has appealed from an order of the district court denying his petition for a writ of habeas corpus, filed May 11, 1967, naming as respondent, Frank J. Pate, Warden of the Illinois State Penitentiary.
It appears from petitioner's brief that on September 14, 1964, he was sentenced to the penitentiary for not less than five nor more than ten years, and that on his appeal, his conviction was affirmed by the Illinois Appellate Court, First District, 69 Ill.App.2d1 312, 217 N.E.2d 557 (1966). On March 17, 1967, petitioner was denied leave to file an original writ of habeas corpus by the Illinois Supreme Court.
The only error relied upon for reversal is:
The trial court, the Appellate Court of Illinois, and the United States District Court erred in holding that a fictitious signature, signed to the affidavit for a search warrant, did not render the search warrant void.
Petitioner accepts the facts as stated in the opinion of the Illinois Appellate Court, at 313, 217 N.E.2d at 558 which, in pertinent part is as follows:
In this court, it is alleged in the brief of petitioner and not denied that the affiant, who signed the complaint for the search warrant as "Joe Williams", thereby used a fictitious name and signature.
In King v. United States, 4 Cir., 282 F.2d 398, it was said at 399 (1960):
* * *"
In that case, conviction of defendant King rested on evidence taken from his home under a search warrant and the sole point of appeal was that the underlying affidavit was invalid and hence the search warrant was likewise invalid. This contention the court upheld. The affidavit was executed by Ruth or Rutha Douglas before a United States commissioner, upon which the commissioner authorized a search of King's home. The court said, at 399:
"* * * The short of it is that an oath by a person claiming a spurious identity is the sole basis for the warrant and the search. * * *"
At 399, the court added:
The court in King pointed out that the demand of rule 41 for the affiant's name is not without purpose and that it has been said that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant, and that defendant should be apprised of the name of that person. The court added, at 400:
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