Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. LOUIS J. GILBERTO, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment entered by the Circuit Court of Cook County on March 17, 1967, finding that a 1965 Chevrolet was used in the commission of a criminal offense and was lawfully seized by police officers in the City of Chicago, and that the said Chevrolet was adjudged forfeited. A complaint had been filed which set out the following:
The plaintiff, by JOHN J. STAMOS, State's Attorney of Cook County, pursuant to Criminal Code of 1961 (as amended), Chapter 38, Section 36-1, 2(a), relates:
(1) That on or about January 13, 1967 police officers of the CITY OF CHICAGO having reasonable grounds to believe that the vehicle identified as: 1965 CHEVROLET, CHEVY II, Serial No. 113355N152337, while in possession and control of one FLETCHER GALLOWAY, was being used in the commission of an offense prohibited by Criminal Code of 1961 (as amended) Chapter 38, Section 28-1a8 (Gambling) did seize such vehicle and delivered it forthwith to the Sheriff who gave notice to JOHN J. STAMOS, State's Attorney, and to the following named persons whose right, title, or interest was of record in the office of the Secretary of State:
Fletcher Galloway, 7139 S. Rhodes Avenue, Chicago, Illinois 60619
Edna Galloway, 7139 S. Rhodes Avenue, Chicago, Illinois 60619
General Motors Acceptance Corp., 10046 S. Western Ave., Chicago, Ill. 60643.
all pursuant to the statutes made and provided.
(3) That such hereinbefore identified vehicle was used in the commission of a criminal offense either by the owner thereof or with his knowledge or consent by a person in possession and control of vehicle.
The plaintiff prayed that the vehicle be declared forfeited and sold at public auction; that all rights, interest and title of each of the parties claiming an interest in the vehicle be terminated.
With leave of the court the defendants, Fletcher and Edna Galloway, filed an answer in which they admitted that they were the owners of the vehicle in question but denied that on January 13, 1967, or at any other time, police officers of the City of Chicago had any reasonable grounds for believing that the automobile was being used in the commission of gambling in violation of section 28-1(a)(8), chapter 38 of the Criminal Code of 1961, or any other offense against the laws of the State of Illinois.
Fletcher and Edna Galloway (the parties in whose behalf the instant appeal was taken) then filed a motion to dismiss the above-entitled action for the reason that the cause of action stated in the complaint was barred by a prior finding and judgment of the Circuit Court, and in support of their motion filed suggestions in which they set out that on January 13, 1967, the case of People of the State of Illinois v. Fletcher Galloway was heard in a preliminary hearing before a judge of the court, at which hearing the court found that the evidence presented before the court was "policy result tickets and not records of bets and not within the prohibition of Chapter 38, Section 28-1 (a-8) of the Criminal Code of 1961"; that the court, after hearing evidence, held that there was not sufficient evidence presented to hold defendant Fletcher Galloway to the Grand Jury. Subsequently, on March 17, 1967, the instant complaint was tried before a judge of the court, and the motion to dismiss was denied.
The first contention made in this court by the defendant is that the complaint was insufficient. Section 36-1, chapter 38, Ill Rev Stats 1961, provides:
Any vessel, vehicle or aircraft used in the commission of an offense prohibited by Section 9-1, 10-2, 18-2, 19-1, 19-2, 20-1, 20-2 or 28-1 of this Code as heretofore or hereafter amended, . . . may be seized and ...