Pete Maschio and wife testified defendant came to their house, where he roomed, between 1 and 2 o'clock in the morning, changed his clothes, and left, and did not return. fendant three times as defendant disappear- his father worked, and on the way found a ed. Witness testified he afterwards examin- revolver. The place where he found it was ed the basement for the marks of bullets. east of the depot, toward Jeisyville, where Over the top of the basement door, where the defendant lived. The gun was produced he came out, there were two bullet holes in and identified, but was not offered in evithe cement wall and two in the top right dence. over where he had been standing. The evidence shows that there were, all told, some 15 or more bullet holes in the basement near where the witness Motley, Tony, and defendant were. Neither this witness nor any other witness testified positively that defendant fired the shot which killed Motley; but a number of witnesses testified the flash of the pistol came from between defendant and Tony and Motley, and that they were very close to him, one on his right and one on his left. Sam Mottershaw testified he was in the basement when Motley and Vancil came down and asked the crowd to leave. The witness left, went upstairs, and did not see the shooting, but heard several shots fired. He saw Vancil back out of the basement up the stairway, but did not see him shooting. Vancil went to the southeast corner of the building, and was about 22 feet from where witness was standing. Witness saw Percy Manuel come out, and then defendant came out. Defendant tapped Manuel on the shoulder and told him to keep still, and went south toward the alley. Defendant and Vancil fired some 3 or 4 or 5 shots at each other as the defendant was leaving. When defendant came out of the basement he had a gun in his hand. Andrew Keirs, Jr., a boy 16 years old, testified he was in the basement when Tony rushed Motley and pushed him to the northeast corner. Defendant was near by. Witness heard the shot and saw Motley fall. He testified he saw the flash of two guns. One looked like it came from where Tony was when he whirled around from Motley; the other was close to where defendant was standing. Witness went up the stairs, and did not see defendant after that. He saw Vancil at the southeast corner of the building, and saw him fire at somebody, and the person he fired at fired back at Vancil twice. He could not tell who it was. Witness testified Tony fired toward Vancil after the first shot. Harry McKenna testified, as several other witnesses did, about Tony scuffling with Motley after he was ordered to get out of the basement and the firing of a shot. He heard several other shots in succession, but by that time he was out of the basement. A gun which had not been fired was found lying by the body of Motley, and a gun and brass knucks were found by the body of Tony, and a razor was sticking out of his pocket. The witnesses are substantially agreed that defendant went to the dance in his shirt sleeves; that he wore no belt, and no one saw a gun on him before the shooting began. Defendant testified in his own behalf that he was 26 years old. He came to Kincaid in August, 1919, and had been working in the mines. He roomed and boarded at Maschio's, in Jeisyville. He testified he wore no coat or hat when he was in the basement. He had no gun or weapon, and did not own one. He saw Tony and Motley quarreling, and could not understand why they got so angry, Motley had a gun in his hand, and ordered every one to get out. Pretty soon he heard shots and saw Motley and Tony, with guns, facing each other. Then there were more shots, and he saw Motley fall, and witness exclaimed to Tony, "You killed Motley!" Pretty soon he heard voices from his side say, "Whitey, get out; if you don't you going to get mobbed." He left the basement and went over the wagon road to Jeisyville. After he got out he heard shots fall. Didn't know how many. When he got to Jeisyville he went to his boarding house and changed clothes. He was running, and did not stop to tell any one to keep still or he would kill him. He didn't see Manuel on his way out. After arriving at his room and changing his clothes he went west through Bulpitt and through cornfields until he got past the village of Tovey. A taxi came along, and he got in it and went to Peoria. From there he went to Detroit, and then to Montreal. He denied shooting Motley, and denied having had a gun in his hand. He testified there was no place about his clothes where he could have concealed a gun. Pete Bellegante testified he was in the basement when the shooting occurred. He saw Motley and Tony looking at each other, and they didn't look very good. Tony had his hand under his coat. Vancil was standing at the first step of the stairway, and had his hands in his coat pocket. Defendant was 6 or 8 feet from Motley, and took no part in the conversation between him and Tony. Witness asked Tony to go home, and tried to get him out. Witness stopped at the top of the stairs to talk to Mottershaw, and heard Motley order every one out of the place. Just following that he heard one or Dominic Dianasa, a boy 13 years old, liv- two shots. He thinks he heard 35 or 40 all ing in Kincaid, testified that the morning told. after the homicide he went to the mine where. Several witnesses testified for defendant (143 N.E.) that his reputation as a peaceable and law-, testified that the route he took from Kincaid abiding citizen was good. to Jeisyville was not near the place where [6, 7] Defendant contends it was error for the court to instruct the jury on the subject of manslaughter, and that under an indictment for murder the accused might be The argument convicted for manslaughter. on; [1-4] It is earnestly insisted by defendant that he was unarmed, and could not have shot Motley. In addition to his own testimony that he had no gun, he insists that it was impossible for him, dressed as he was, to have concealed a gun on his person so that it would not have been seen before the shooting took place, and no witness testified to seeing a gun on his person before that time. On the other hand, Vancil testified defendant had a gun and fired at him as he was backing out of the basement; that defendant came out of the basement with a gun in his hand, and started south toward the alley running east and west south of the building; that he (Vancil) shot at him two or three times as he was going, and that de-in support of that assignment of error is that fendant shot at the witness twice as he there was no evidence to base the instruction Motterwas disappearing in the darkness. that if defendant was guilty of any shaw testified he saw defendant come up out crime it was murder. Reliance is placed on of the basement, and that he had a gun in decisions that, if the evidence admits of but his hand, and, after tapping Manuel on the one conclusion-that is, that the defendant, shoulder and telling him to keep still, de- if guilty at all, is guilty of the crime chargfendant went south toward the alley, and 3, ed-it is erroneous to instruct the jury he 4, or 5 shots were exchanged between him may be found guilty of a lesser offense. Peoand Vancil. There was some other testi- ple v. Moore, 276 Ill. 392, 114 N. E. 906; mony that the man who went south from People v. Schultz, 267 III. 147, 107 N. E. 833. It was a the building did some shooting. In the case of People v. Moore the court said material issue whether defendant had a gun, an instruction may properly be given that the and on that question there was conflicting accused may be found guilty of a lesser oftestimony. It was a matter for consideration fense embraced in the crime charged if there of and determination by the jury. When the is evidence on which to base the instruction, evidence is contradictory it is for the jury even though there was also evidence that the to determine what witnesses are entitled to crime charged was committed. The crime the greatest weight and credit. been so often decided by this and other of manslaughter is embraced in a charge of courts, and the rule is so familiar, as to murder, and the accused may be found not guilty of murder and convicted of manmake the citation of authorities unnecessary. It is only when a reviewing court is satis- slaughter. It is undoubtedly true that when fied, from a consideration of all the testi- the charge is murder and the evidence conmony, that there is a reasonable doubt of clusively shows the crime committed was the defendant's guilt, that the verdict and murder it would not be proper to instruct judgment will be disturbed. The jury must that the accused might be found guilty of a have believed the testimony for the people lesser offense; but, where the homicide was that defendant was armed with a gun. committed during a fight or quarrel suddenThere is nothing inherently improbable or ly arising, it is not always conclusive that unreasonable in their adopting that belief. the crime was murder or nothing. Under the The jury had the advantage of seeing the circumstances the proof shows attended the witnesses and hearing them testify, which killing of Motley, we think it was not imhas always been recognized as giving better proper for the court to instruct as it did on opportunity to determine the weight which the subject of manslaughter.. the testimony should receive than a reviewing court has by reading it from the abstract. Also, defendant's immediate flight from the building and from the country was a circumstance tending to cast suspicion on his testimony. Considering all the facts and circumstances proved, a reviewing court would not be warranted in reversing the judgment on the ground that it was not warranted by the evidence. This has [5] Complaint is made of the admission of the testimony of Gianasa, the boy who found a revolver the morning after the homicide, between Kincaid and Jeisyville. Defendant [8, 9] Complaint is made of the giving of several other instructions for the people. It is said some are argumentative, and not based on evidence; in some are repetitions; one singles out and gives prominence to defendant's flight; one is an abstract proposition of law and assumes the use of a weapon by defendant. It is true, part of a rule of law stated in one instruction is in substance embraced in part of another; but none of them are entire repetitions. The court might have been justified in modifying the instructions by striking out the repetitions, but giving them as they were given does not consti consider timely application for return of articles wrongfully seized and refusal is reversible error. tute reversible error, as it clearly seems de-, 5. Criminal law 395, 1168 (2)-Court should fendant could not have been prejudiced by the instructions. The court instructed the jury that, if they believed from the evidence defendant immediately, after the homicide fled to Canada and remained there until he was taken into custody, such flight was a proper circumstance to be considered in determining the guilt or innocence of defendant. We are unable to see any objection to this instruction. Siebert v. People, 143 Ill. 571, 32 N. E. 431. We are of opinion defendant was not prejudiced by erroneous instructions given for the people. Our conclusion is that the case made against defendant, as shown by the record, is not one in which a reviewing court would be warranted in interfering with the verdict of the jury and the judgment of the trial (Supreme Court of Illinois. Feb. 19, 1924. Rehearing Denied April 3, 1924.) 1. Searches and seizures 7-Search without warrant, or of place not described in warrant, unreasonable. Under Const. Ill. art. 2, § 6, forbidding unreasonable searches and seizures, a search without a warrant, or a search of a place not described in the warrant, is unreasonable. 2. Searches and seizures 7-Search of residence portion of premises under warrant describing whole as store held unreasonable. Where only a portion of a residence was used as a store, a search of the whole premises under a warrant describing them as a store was as to the residence portion unreasonable and a violation of Const. Ill. art. 2, § 6. 3. Criminal law 386, 394-Generally admissibility not affected by source or illegality in procurement. While the court on objection to evidence will not enter upon a collateral issue as to the where defendant has made timely application source from which the evidence was obtained, before the beginning of the trial for an order directing the return to him of property unlawfully seized, the court should hear and determine the question of the illegality of seizure, and failure to do so and receipt in evidence of such matters over defendant's objection constitutes reversible error. 6. Criminal law 394, 395-Rule that source of evidence will not be inquired into inapplicable where unconstitutional seizure becomes apparent. The rule that courts will not stop the progress of the trial of a criminal case to inquire whether evidence otherwise competent was lawfully or unlawfully obtained has no application, where it becomes apparent during the trial that there has been an unconstitutional seizure of property of accused, and the court should on motion of defendant exclude such property and any testimony relating thereto given by government agents who made the unlawful seizure. As a general rule, the admissibility of evi-9. Criminal law 396(2)-Permitting introdence is not affected by the source from which it comes or the illegality of the means by which it was procured. 4. Criminal law 395-Where evidence obtained without authority of state, illegality of procurement will not affect admissibility. Since Const. art. 2, § 6, prohibiting unreasonable searches and seizures, is intended to protect the individual from official oppression and not from private trespass or criminal violence, where a defendant's property or papers have been by artifice or deceit, or unlawfully by stealth or force, obtained by an individual not acting under color of authority from the state, the courts will determine the admissibility in evidence of such articles without inquiring into the method by which they were procured. duction by state of record of former conviction held not error. Where defendant was improperly permitted to introduce only a part of the record of a former prosecution, showing that a jury had been sworn and evidence heard on the sole issue of former jeopardy, it was not error to permit the state to offer so much of the remainder of the record as showed a conviction; the part of the record introduced by defendant being insuflicient to show former jeopardy, since the jury, though sworn, might have been discharged for good cause without a verdict. Thompson, J., dissenting. Error to Winnebago County Court; Fred E. Carpenter, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (143 N.E.) Sam Castree was convicted of a violation of the prohibition act, and he brings error. Reversed and remanded. Roy F. Hall, of Rockford, for plaintiff in error. Edward J. Brundage, Atty. Gen., William Johnson, State's Atty., of Rockford, George C. Dixon, of Dixon, and A. B. Louison, of Rockford (James Wilson Gullett, of Springfield, of counsel), for the People. DUNN, J. An information of two counts was filed against Sam Castree in the county court of Winnebago county, charging him in the first count with having on February 1, 1923, unlawfully sold intoxicating liquor, and in the second with unlawfully possessing intoxicating liquor on the same date. He was tried and found guilty on both counts, and on March 26, 1923, his motions for a new trial and in arrest of judgment were overruled and he was sentenced to 150 days' imprisonment in the county jail and to pay a fine of $100 and costs. He sued a writ of error out of this court on the ground that a constitutional question is involved. Before the information was filed, the state's attorney had made a complaint, under oath, to two justices of the peace of the county and had caused a search warrant to be issued to search the store building occupied by the plaintiff in error, known as 1427 Rock street, in the city of Rockford, for intoxicating liquor, under which two deputy sheriffs had searched his residence and found and taken away three jugs of intoxicating liquor The affidavits for the search warrant stated that the reasons for the affiant's belief that intoxicating liquor was unlawfully possessed and kept for sale in the premises were "information from responsible person who has seen intoxicated persons coming from said premises." Before the trial the plaintiff in error filed a petition, verified by his oath, stating that 1427 Rock street is not a store building but is a residence, and he conducted a small store in the room of the house, which fronts and has its entrance on Lane street, while the entrance to his residence is from Rock street; that there is a door from the house leading into the room which he uses as a store, and there is no other store room in the dwelling, and that all the remainder of such dwelling house is used solely as a dwelling; that the officers having the warrant searched not only the store room but went through the door into his dwelling and searched it in the nighttime, and the intoxicating liquor which they seized was not found in the store, but was taken from his house. The prayer of the petition was that the court investigate the question and that the property alleged to have been taken under the search warrant be impounded and not used in evidence against the plaintiff in error. The court denied the petition, and on the trial admitted in evidence, over the objection 143 N.E-8 of the plaintiff in error, the proceedings under the search warrant, the search of the dwelling as well as the storeroom, the finding of intoxicating liquor in the dwelling, and the jugs and liquor which were seized. The action of the court in denying the motions of the plaintiff in error and admitting the evidence of the officers as to the result of their search raises the principal question in the case, which is: Is evidence obtained by an unreasonable search conducted by officers of the state admissible on the trial of the owner of the premises searched on a criminal charge, upon the ground that it was obtained in violation of his constitutional right? Section 6 of article 2 of the state Constitution 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." [1, 2] Not all searches are prohibited, but unreasonable searches, only. Warrants may issue, but not without probable cause, supported by affidavit, and only to search the place particularly described. A search without a warrant is an unreasonable search, and a search of a place not described is without a warrant and is unreasonable. The search of the plaintiff in error's dwelling under a warrant particularly describing a store was of the right of security guaranteed him by unreasonable, and therefore was an invasion section 6 of the Bill of Rights. The Fourth Amendment to the federal Constitution is in practically the same words. It was one of the ten amendments ratified by the Legislatures of the various states after having been submitted by the first Congress in response to the recommendation of the states ratifying the Constitution, and the importance with which the right which it guarantees has been regarded is indicated by the various decisions of the Supreme Court sustaining it and the language of one of the most recent of them: "It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two amendments [The Fourth and Fifth]. The effect of the decisions cited is: That such rights are declared to be indispensable to the full enjoyment of personal security, they are to be regarded as of the very espersonal liberty and private property'; that sence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen-the right, to trial by jury, to the writ of habeas, officers invaded the defendant's premises and corpus and to due process of law. It has been without authority of law searched for and repeatedly decided that these amendments should receive a liberal construction, so as to stolen. It was a case within the exception seized certain property alleged to have been prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, mentioned in the Gindrat Case, subversive of by imperceptible practice of courts, or by well- the defendant's constitutional right, and we intentioned but mistakenly overzealous execu- held that while the court, on objection to the tive officers." Gouled v. United States, 255 U. admission of evidence, will not stop the trial S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647. of the case and enter upon the trial of a collateral issue as to the source from which the evidence was obtained, where the defendant makes timely application, before the beginning of the trial, for an order directing the return to him of the property or papers unlawfully seized, the court should hear and determine the question of the legality of the seizure, and if it erroneously refuses to do so and receives the property in evidence against the defendant over his objection, it is an ermust be reversed. This decision was in acror for which the judgment of conviction cordance with the decisions of the Supreme Court of the United States and of many of the states of the Union. [3, 4] It is the general rule that the admissibility of evidence is not affected by the source from which it comes or the illegality of the means by which it was procured. The rule is stated in Gindrat v. People, 138 Ill. 103, 27 N. E. 1085, as follows: "Courts, in the administration of the criminal law, are not accustomed to be oversensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent, and not subversive of some constitutional or legal right." The last clause is important and is vital to the question now under consideration, for to receive the evidence in this case would be subversive of the plaintiff in error's constitutional right to be secure in his person, houses, papers, and effects against unreasonable searches and seizures. In the Gindrat Case it was not so, for the person who obtained the evidence there was only a private detective acting under a private employment having no official authority, and it was held, in accordance with the universal holding of the federal courts in similar cases, that section 6 of article 2 of our Constitution is a limitation on the powers of the state government and has nothing to do with the unauthorized acts of private individuals having no authority or color of authority from the state. That provision in a Constitution is intended to protect the individual from official oppression and not from private trespass or criminal violence. The opinion in the Gindrat Case makes plain the difference, in pointing out the clear distinction between that case and the case of Boyd v. United States, supra. In other cases in this court the rule has been applied that where a defendant's property or papers have been by artifice or deceit, or unlawfully, by stealth or force, obtained by an individual not acting under color of authority from the state, the court will determine the admissibility of the evidence without inquiring into the method by which it was procured. Siebert v. People, 143 Ill. 571, 32 N. E. 431; Trask v. People, 151 Ill. 523, 38 N. E. 248; People v. Paisley, 288 Ill. 310, 123 N. E. 573. [5] In People v. Brocamp, 307 Ill. 448, 138 N. E. 728, the question was presented for the first time in this court of the admissibility in evidence of stolen property which had been obtained by an unlawful search and seizure conducted by virtue of their office by state officers charged with the prosecution of crime. In that case, without a warrant such In Boyd v. United States, supra, the court held that the enforced production, through an order of the court, by a defendant of his private papers, to be used in evidence against himself in a criminal case, was equivalent to an unreasonable search and seizure. The intimate relation between the Fourth Amendment, which prohibits unreasonable searches, and the Fifth, which declares that no person shall be compelled in a criminal case to be a witness against himself, was considered, and it was held that an actual entry upon premises and a search for and seizure of papers were not necessary to constitute an unrea. sonable search and seizure within the meaning of the Fourth Amendment, but a compulsory production of a person's private books and papers to be used against him in a criminal proceeding was within the spirit and meaning of the amendments. It was said in the opinion: "We are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizureand an unreasonable search and seizure-within the meaning of the Fourth Amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that deviations from legal modes of procedure. This way, namely, by silent approaches and slight can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to |