APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1971.
The defendant, Samuel Saiken, was indicted by the circuit court of Cook County for the crimes of murder and conspiracy to obstruct justice. A jury returned a verdict of not guilty on the murder charge and guilty on the charge of conspiracy to obstruct justice.
The defendant claims that the search which lead to the discovery of the body of the victim was improper and in violation of constitutional and statutory provisions; that the jury verdict was against the manifest weight of the evidence; and that the trial court abused its discretion in denying probation and in sentencing him to the penitentiary for a term of not less that 2 nor more than 3 years.
The defendant was indicted for murdering Ella Jean Scott, also known as Tina Mumma, and for conspiring with his son, Joel Saiken, to obstruct justice by concealing the victim's body in a steel drum and burying it on his farm in Chesterton, Indiana.
The victim was a friend of both the defendant and his son. The defendant testified that he met her at O'Hare Airport on November 4, 1967, and that they drove to the defendant's farm in Chesterton, Indiana, where they picked up Joel, the defendant's son, and the three of them, along with the victim's cat, then returned to the defendant's warehouse, in Chicago; that when they arrived at the warehouse, Joel and the victim went in, but Joel returned alone after five minutes; that shortly thereafter, Joel admitted that he had killed Mrs. Mumma. The defendant denied that he in any manner conspired to obstruct justice.
Joel testified that he never saw the victim alive on November 4 or 5; that he had been at the farm in Chesterton; and that his father had gone to O'Hare Airport to meet Mrs. Mumma. He further stated that his father came back alone the next day, and admitted to him that he (the father) had killed Mrs. Mumma; that he and the defendant then went to the warehouse and placed the victim's body in a steel drum; that the defendant then asked him to bury the body on the farm; and that he buried the body behind the goose barn on the eastern side of the farm.
The defendant's version was corroborated by a gas station attendant, who had seen the defendant, Joel, the victim and the cat, at, and about, his service station while minor repair work was done on the defendant's car at about 2 A.M. on November 5.
At the hearing on the motion to suppress evidence, Officer Young, on whose affidavit the search warrant was issued, testified that on the evening of February 18, 1969, he had a conversation with the defendant's son, Joel, for about one and one-half hours; that Joel told him that he had buried the body on the farm under a manure pile behind the goose barn; and that the victim had died from a gunshot wound.
As a result of this information, Officer Harry Young obtained a search warrant on February 19, 1969, and made a search for the body. He dug near the goose barn for about two hours. The ground was frozen hard and he was unable to find the body. That evening he again talked to Joel, who further pinpointed the location of the body. The next day, Officer Young returned to the spot behind the goose barn and continued the excavation at the place where he had been digging the day before, and about 4 hours later he found the body.
The defendant contends that the affidavit of Officer Young on which the search warrant was issued, was insufficient in that it was based upon hearsay. The affidavit, subscribed to before Harry W. Estler, Justice of the Peace, stated:
"HARRY YOUNG swears that by virtue of information voluntarily conveyed to him by one JOEL SAIKIN on Tuesday, the 18th day of February, 1969, affiant has good reasons to believe, and does believe, that a dead human body, to-wit: a white, female approximately seventeen (17) years of age is secreted in and about the following real estate in Porter County, Indiana:
The East 1/2 of the Southeast 1/4 of the Southwest 1/4 of Section 17, Township 37 North, Range 5 West of the Second Principal Meridian, containing about 20 acres more or less,
said real estate being the property of Sam D. and Minnie Saikin, said dead body being secreted in the following place and manner, to-wit: buried beneath the ground behind the goose house on said premises, originally buried under or near a manure pile located behind or near the goose house ...