APPEAL from the County Court of Madison County; the Hon.
MICHAEL KINNEY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State of Illinois from an order of the county court of Madison County granting the defendants' motion (1) to suppress the use as evidence, in a pending criminal prosecution, of certain property seized in a raid by the State police on May 12, 1950, under a search warrant, and (2) ordering the restoration to the defendants of all the property seized, including money in the amount of $18,000.
The facts material to this appeal are undisputed and may be stated in sequence of time as follows:
May 12, 1950, on complaint sworn to by an investigator for the State Bureau of Criminal Identification and Investigation, Henry F. Beneze, a justice of the peace in Madison County, issued a search warrant under section 2 of division VIII of the Criminal Code, (Ill. Rev. Stat. 1949, chap. 38, par. 692,) directing a search of the Hyde Park Club. The search warrant was given to constable Harold Beneze, who, accompanied by between thirty and fifty State highway police, went to the city of Venice, arriving at the premises about three o'clock in the afternoon of May 12, 1950. The constable served the search warrant upon the defendant Moore by handing it to him and offering to read it, but Moore said reading it was not necessary. The State highway police proceeded to take possession of all the chattel property here in question, including equipment, furniture, tables and other related items, which, per se, have no gambling character, and, in addition, about $18,000 in money. A return of the search warrant was signed by the constable, and returned to the justice of the peace.
May 25, 1950, a criminal information was filed in the county court, charging the defendants, under section 1 of the act prohibiting book-making, (Ill. Rev. Stat. 1949, chap. 38, par. 336,) with being the owners and occupants, on May 12, 1950, of a certain building and keeping and maintaining therein as owners a certain book for the purpose of unlawfully recording bets on the results of horse races, contrary to the statute.
On the same day that the criminal information was filed a petition was filed by the State's Attorney and the Attorney General, jointly, in the same cause, alleging that said money was contraband and should be declared to be such by the court and the State's Attorney be authorized to turn over said money, to be disposed of in accordance with sections 3, 4 and 5 of the act relating to fees of State's Attorneys, (Ill. Rev. Stat. 1949, chap. 53, pars. 18a, 19 and 20,) to the school fund of the county, and that the illegal gaming apparatus, equipment and articles, as soon as they had served their purpose as evidence in the prosecution, should be confiscated, burned or otherwise destroyed, as provided in section 7 of division VIII of the Criminal Code. Ill. Rev. Stat. 1949, chap. 38, par. 697.
On May 29, 1950, an order of the county court was entered in the matter of the petition for confiscation and disposition of said property, showing that all the defendants were present by their attorneys and represented to the court that the defendants Moore, Calcaterra, Conner and Quinn are the owners of said money, gaming apparatus, equipment and articles described in the petition and demanded a hearing upon the merits of said petition, and the court ordered that the gaming apparatus, equipment and articles in said petition described be impounded and held and kept by the Illinois State highway police until the further order of the court, and that the money be impounded and held and safely kept by the State's Attorney until the further order of the court, and that the defendants file answer to the petition on or before June 15, 1950.
On June 8, 1950, defendants Moore and Calcaterra filed answer to the petition for confiscation by their attorney and denied that the money was contraband or subject to confiscation and denied that it had any evidentiary force or value and that said defendants were immediately entitled to said money.
On the same day, said defendants filed a petition for the return of the money, averring that said money is not of the obnoxious class of property which the law condemns but is of the harmless and moral class that cannot be condemned or destroyed by the State under any statute and is not contraband.
On September 8, 1950, defendants filed motion to suppress the search warrant and all evidence secured thereunder, and that all the property be returned to the owners, Moore and Calcaterra.
The criminal information was set for hearing on September 11, 1950, and has never been heard, but evidence was heard on the defendants' motion to suppress the search warrant and for a return of the property, and on September 27, 1950, an order was entered by the county court allowing said motion and the money and articles seized on May 12, 1950, were ordered returned to the rightful owners as alleged in the petition. The record does not show any actual hearing on the petition of the defendants filed June 8 for the return of said money, but the order of the court above mentioned evidently refers to that petition because Moore and Calcaterra were not named as the owners of the money in any other petition appearing in the record. Afterwards a motion was filed by the State to vacate and set aside the order, which is immaterial to this appeal, and later an appeal was perfected by the State to this court.
The State has appealed directly to this court on the theory that the judgment appealed from is final, is civil and not criminal, and that the defendants have raised constitutional questions under the law of search and seizure, and that the State has a financial interest in the $18,000 alleged to be contraband and has a right to directly appeal to this court under the statute. The defendants argue that this court has no jurisdiction; that this is a criminal case and the order is not final and appealable, and also argue that money, as such, can never be considered contraband. The defendants also filed a motion in this court to dismiss the appeal, which was taken with the case. The points therein contained were argued in the briefs, and, because of the importance of the case, we are inclined to consider the cause on the merits, if jurisdiction to hear the cause at all is with this court.
Reviewing the above record, it is obvious that both parties are interested in this appeal primarily because of the intrinsic value of the money, and not because of the use of the money as evidence in the trial of the pending criminal case. Such inference is material only to the extent that it aids the court in determining whether the order appealed from essentially concerns a property right rather than a criminal proceeding.
The jurisdictional question depends upon whether the judgment on the motion to suppress evidence and to return the property was final in character and ...