Schnackenberg, Kiley and Fairchild, Circuit Judges. Kiley, Circuit Judge (dissenting).
SCHNACKENBERG, Circuit Judge.
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.2d*fn1 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:
"On August 29, 1963, a search warrant was issued by a judicial tribunal upon a complaint in which the informer, who gave his name as Joe Williams, stated under oath that narcotic drugs were concealed by Jessie Pugh in a certain apartment on the third floor of a building at 1809 East 67th Street in Chicago. The informer stated that he had purchased two tin-foil packages of heroin from Jessie Pugh at that address on August 28th. The warrant was executed on August 30th. When the officers were admitted into the apartment, they identified themselves as police officers, showed the search warrant to Jessie Pugh, and began their search of the apartment. * * * Eventually, an envelope containing heroin was discovered concealed in a hi-fi set within the apartment. All of the narcotics was admitted into evidence at the trial, over the objection of the defendants."
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):
"* * * The constitutional requirement of an oath or affirmation would be effectively eroded away if fictitious oaths were permitted. The statutory mandate that the affiant's name shall be stated is not satisfied by a false name, given by an unknown individual. * * *"
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 ...