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The People v. Dolgin





WRIT OF ERROR to the Criminal Court of Cook County; the Hon. THOMAS E. KLUCZYNSKI, Judge, presiding.


Rehearing denied September 21, 1953.

Plaintiff in error, Max Dolgin, and one Jacob Lieb were indicted by the grand jury of Cook County on a charge of forging and counterfeiting cigarette tax meter stamps for the purpose of evading the Illinois Cigarette Tax Act. The indictment contained two counts, the first charging that the defendants themselves forged and counterfeited the stamps and the second that they caused and procured others to do so. At the trial before a jury in the criminal court of Cook County, the People elected to stand on the first count. The jury found Lieb not guilty but returned a verdict of guilty against plaintiff in error, upon which he was sentenced by the court to confinement in the State Penitentiary for a term of not less than two years nor more than ten years. He has sued out a writ of error to review the judgment and sentence.

The first assignment of error relates to the refusal by the trial court to allow a motion to suppress certain evidence, consisting of metering machines and equipment and cartons of stamped cigarettes seized in a raid made upon the place of business occupied by the R & L Tobacco Co., Inc., the corporation of which plaintiff in error was president. This evidence was seized by State highway policemen under authority of a search warrant issued by one of the judges of the criminal court of Cook County and a directive issued by the Department of Revenue of the State of Illinois under section II of the Illinois Cigarette Tax Act. (Ill. Rev. Stat. 1951, chap. 120, par. 453.11.) It is contended that the affidavits supporting the complaint for the search warrant are legally insufficient; that there was an unreasonable delay between the time the authorities obtained the information concerning the counterfeit tax stamps and the time of application for the search warrant and that a State highway policeman did not have authority to execute the warrant. Plaintiff in error also contends that section II of the Illinois Cigarette Tax Act, empowering officers and agents of the Department of Revenue to enter the place of business of a distributor without a search warrant and inspect the premises, stock of cigarettes, and vending devices with a view to determining if any of the provisions of the act are being violated, does not extend to State highway policemen, and that mere possession of a directive from the Department of Revenue does not make such an officer an agent or employee of the Department.

Plaintiff in error says that the search warrant was issued upon hearsay affidavits. The complaint for the warrant was signed by H.W. Nofs, a State highway policeman. It charges that the R & L Tobacco Co., Inc., William M. Levy and Max Dolgin counterfeited tax meter stamps and that the stamps and various tools for making them were concealed at 5645-47 South Harper Avenue, Chicago, Illinois, the business address of R & L Tobacco Co., Inc. Three affidavits were attached to the complaint. The first is that of A.H. Johnson, an investigator. He swore that on various dates between August 24, 1951, and October 8, 1951, he purchased eleven cartons of cigarettes of various brands at six retail stores. These he marked with a symbol for identification, the date of purchase and the name and address of the store where purchased. He sent them unopened to Pitney-Bowes, Inc., at Stamford, Connecticut. The second affidavit was that of S.J. Madenford, assistant manager of the tax equipment section of Pitney-Bowes, Inc. He swore he received the cartons sent by Johnson, identifying them by the symbols; that he opened the cartons and examined the Illinois cigarette tax stamps appearing on the packages therein and that the same were counterfeit. His affidavit also sets forth that Pitney-Bowes is the exclusive manufacturer of tax meters used in Illinois as well as in 36 other States; that each tax meter is assigned an exclusive serial number which is never reissued or duplicated; that this serial number represents a particular distributor to whom the meter is licensed in the State of Illinois; that this serial number is imprinted in boldface type on each package of cigarettes upon which a cigarette tax meter stamp is imprinted. He further swore that of the eleven cartons of cigarettes received, all but one bore the serial number 23227, the serial number assigned to R & L Tobacco Co., Inc. The third affidavit was another sworn to by A.H. Johnson. It states that affiant went to the six retail establishments where he had originally purchased the cigarettes; that he examined sales invoices and various other records covering a certain period before and after the date of purchase and that in five of the six cases the records examined disclosed that the R & L Tobacco Co., Inc., was the retailer's exclusive supplier of cigarettes for the period in question. Johnson also stated that he had personally examined the premises of the R & L Tobacco Co. and that he personally knew the company was engaged in the business of selling cigarettes at wholesale. His affidavit stated that he had personally examined the records of the Department of Revenue of which he was an employee and that they disclosed that the tax meter bearing serial number 23227 had been assigned to R & L Tobacco Co., Inc.

Specifically stated, plaintiff in error's objection is that Johnson's second affidavit is hearsay because it sets forth what he observed upon checking the records of the six retail establishments without incorporating the records themselves or authenticated copies thereof. It is said that because of this omission the affidavits contain no facts from which the issuing magistrate could conclude that the R & L Tobacco Co., or plaintiff in error was the supplier of cigarettes to the retail establishments in question.

Section 6 of article II of the constitution of this State provides that no search warrant shall be issued without probable cause, supported by affidavit, particularly describing the place to be searched and the persons or things to be seized. In applying these provisions of our basic law this court has repeatedly held that the affidavit in support of a search warrant must state facts which are within the personal knowledge of affiant; that affidavits made upon information and belief are legally insufficient and that search warrants issued upon such complaints or affidavits are in violation of the constitutional rights of the persons affected. (People v. Elias, 316 Ill. 376; People v. Sovetsky, 343 Ill. 583.) The existence of probable cause is always the ultimate question. This is judicial — to be decided by the magistrate before whom the complaint is made. (People v. Prall, 314 Ill. 518.) We have said that the complete legal idea expressed by the term "probable cause" is not to be gathered from a mere definition. (People v. Daugherty, 324 Ill. 160.) However, where a belief is held in good faith by the prosecutor of the guilt of the accused based upon circumstances sufficiently strong to induce the belief in the mind of a reasonably cautious person that the defendant in the prosecution was guilty of the particular offense charged, probable cause for the arrest of the person exists. (Glenn v. Lawrence, 280 Ill. 581.) If there is reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, it is a sufficient basis for the issuance of a search warrant. (People v. Lavendowski, 329 Ill. 223.) In People v. DeGeovanni, 326 Ill. 230, at page 234, we said: "A complaint for a search warrant is to be regarded as sufficient to authorize the issuance of a search warrant when the facts therein stated and sworn to show probable cause for the writ. It is not required that the complaint for a search warrant should show, beyond a reasonable doubt, that the writ should be issued."

In the case before us the affidavit of Johnson is not made upon information and belief. It states positively and unequivocally that affiant visited the retail establishments where cigarettes bearing forged stamps had been purchased originally and that upon personal inspection of their records by affiant it appeared that defendant's company had been the sole supplier of cigarettes at the times in question. The affidavit sets forth in considerable detail what records were examined and what the records showed; this evidence was competent and direct as bearing upon the issue of probable cause. It is a statement of facts within affiant's personal knowledge — of what he himself saw and observed. While it is true that the records themselves would have to be produced to prove the truth of the facts recited therein, affiant's statements to prove what the records showed were competent upon the issue of probable cause so long as they were based upon his personal inquiries and observations. We believe that the affidavits, taken together, make a clear case of probable cause for the issuance of the warrant. They are not subject to the hearsay objection interposed by plaintiff in error.

The cigarettes in question were purchased over a period from August 24, 1951, to October 8, 1951, from various retailers on repeated shopping days. The search warrant was not applied for until November 26, 1951, some 49 days after the date of the last purchase. Plaintiff in error says that this lapse of time between the last date of information and the date of application for the warrant invalidates the warrant. No Illinois decisions are cited in support of this position but a number from other jurisdictions are cited in which, under the particular circumstances, the lapse of time was held to be unreasonable. We have examined the cases cited by plaintiff in error. In most of them the warrant was based upon an isolated event taking place some time previously. There was no evidence of a continuing offense such as was made to appear to the magistrate in this case. This court has said that no hard-and-fast rule concerning the time within which the complaint should be made can be established except that it should not be too remote. (People v. Holton, 326 Ill. 481.) Whether or not it is too remote must depend upon all the facts and circumstances of the particular case. The only bearing that passage of time of itself has upon the question is its effect upon the existence or nonexistence of probable cause. Here the magistrate had before him the evidence that the R & L Tobacco Co. had, over a considerable period of time in an extensive territory, made repeated sales and deliveries of cigarettes bearing counterfeit tax stamps. We believe that there was reasonable cause to believe that this offense was continuing, so that even after the lapse of the time indicated the issuance of the warrant would not be improper.

The search warrant was served by a State highway police officer. Plaintiff in error contends that a search warrant is in the nature of civil process and since State highway policemen are specifically prohibited by statute from serving civil process, (Ill. Rev. Stat. 1951, chap. 121, par. 307.16,) the service here was illegal and void. Plaintiff in error cites People v. Moore, 410 Ill. 241, as authority for the position that a search warrant is civil process. But that case contains no such holding. The question before this court was whether the State could appeal from that portion of an order of a county court ordering the return of contraband property which had been seized upon a search warrant and ordered suppressed. This court recognized the difference between that portion of the order suppressing the warrant and the use of the property as evidence in a criminal proceeding from that part ordering a return of the property. We said that the former, being an order in a criminal proceeding, was one from which the State could not appeal. The latter, being an order civil in its nature, was one from which an appeal would lie on behalf of the People. While the case does not decide the precise question here involved, it does stand for the proposition that an order entered suppressing evidence in a criminal proceeding after seizure of the same upon a search warrant is criminal in its nature. We believe the warrant itself is in the nature of criminal rather than civil process. This was recognized in principle in our decision in Lippman v. People, 175 Ill. 101 where, at page 111, we quoted with approval the language of Bishop on Criminal Procedure (vol. 1, sec. 716) from Robinson v. Richardson, 13 Gray 454: "Search warrants were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings or for the maintenance of any mere private right, but their use was confined to cases of public prosecutions instituted and pursued for the suppression of crime or the detection or punishment of criminals." Under modern statutes relating to search and seizure the same principles prevail. (People v. Kempner, 208 N.Y. 16, 101 N.E. 794.) A search warrant is in the nature of criminal process. Its purpose is to aid in the detection and punishment of crime. It has no relation to civil process or civil trials. By statute State highway policemen are expressly designated as "conservators of the peace" with "all powers possessed by policemen in cities, and sheriffs, except that they may exercise such powers anywhere in this State." (Ill. Rev. Stat. 1951, chap. 121, par. 307.16.) Section 20 of the Illinois Cigarette Tax Act (Ill. Rev. Stat. 1951, chap. 120, par. 453.20,) authorizes "any peace officer of the State" to obtain a search warrant under that section and section 3 of division VIII of the Criminal Code (Ill. Rev. Stat. 1951, chap. 38, par. 693,) provides that a search warrant shall be directed to the sheriff or any constable of the county, or bailiff of the municipal court of Chicago. Whether we regard the search warrant as having been issued under the Criminal Code or under the Cigarette Tax Act, a State highway policeman had the power and authority to execute the warrant.

Moreover, it may be seriously questioned that a search warrant was needed to make the search and seizure valid. Section II of the Illinois Cigarette Tax Act (Ill. Rev. Stat. 1951, chap. 120, par. 453.11,) provides in part as follows: "At all times during the usual business hours of the day any duly authorized agent or employee of the Department may enter any place of business of the distributor, without a search warrant, and inspect the premises and the stock or packages of cigarettes and the vending devices therein contained, to determine whether any of the provisions of this Act are being violated." Under the authority of this section the State police officers who served the warrant were also given written authority by the Department of Revenue to inspect the premises as its agents, with specific instructions as to the scope and nature of the inspection and examination. This written authority was read to the plaintiff in error on the premises following the reading of the search warrant and before the inspection began. Plaintiff in error says that the State highway police officers could not be agents of the Department, but assigns no reason for his conclusion and no reason is perceived by us why the fact that an individual happens to be a State police officer would prevent him from being an agent and so designated by the Department. Being agents of the Department of Revenue, these officers were lawfully on the premises under section II of the Cigarette Tax Act and the written authority received from the Department. While lawfully on the premises these officers observed a felony being committed in their presence in violation of section 23 of the Cigarette Tax Act and forthwith arrested plaintiff in error. As peace officers they had authority to make the arrest, and, the arrest being lawful, a search of the immediate premises incident thereto would also be lawful, including the search of the safes in which the metering machines were found. (United States v. Rabinowitz, 339 U.S. 56; People v. Dubin, 367 Ill. 229.) We find, therefore, that the search and seizure were lawful and not in violation of the constitutional rights of plaintiff in error. The court correctly refused to allow the motion to suppress.

During the course of the trial a juror reported to a bailiff that an effort had been made to bribe her. The bailiff immediately brought the juror before the trial judge where she was examined in the presence of counsel for the People and counsel for both defendants. She described the attempt as having been made at her home by a man unknown to her who offered her $500 to vote for a verdict of "not guilty." The juror repeatedly stated that the experience would not prevent her from being a fair juror for both sides and that she held nothing against the defendants or the People because of the attempt. She also stated that she had not discussed the matter with any other juror and assured the court and counsel that she would not do so. It appeared that no member of the jury knew that she was in chambers discussing the matter. At the request of counsel for the People the court admonished the juror that she was to say nothing to the other jurors about the matter. She assured all concerned that she would say nothing to the other jurors. Following her return to the jury room, counsel for plaintiff in error and counsel for Lieb moved for a mistrial. The motion was denied and error has been assigned upon the ruling.

Not every effort by an unknown person to bribe a juror will require a mistrial. If it did, a defendant, if so disposed, could hamper and delay the administration of justice indefinitely merely by adopting the expedient of having someone approach a juror. Whether or not a mistrial shall be ordered upon such an occurrence rests in the sound judicial discretion of the trial judge. It is not the law that a mistrial must result as a matter of course. No decisions of this court standing for such a position have been cited and we are aware of none. An examination of the authorities from other jurisdictions and of our own decisions relative to other forms of improper conduct of or affecting the jury leads us to the conclusion that the rule should be that such a motion is addressed to the sound judicial discretion of the trial judge in the first instance and that, in the absence of a showing that the defendant has been prejudiced, a ruling denying the motion is proper. See, People v. Strause, 290 Ill. 259; People v. Coniglio, 353 Ill. 643; People v. Cain, 365 Ill. 494; People v. Mangano, 354 Ill. 329; People v. Phelps, 388 Ill. 618. The record before us is devoid of anything showing prejudice to the rights of the defendant. On the other hand, it reveals zealous efforts by the court, counsel and the juror herself to safeguard those rights. The repeated assurances by the juror that she had not been prejudiced, her full and frank ...

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