APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendants, Joseph, Jimmie, and Carl Dockery were indicted for attempted murder and aggravated battery. At a bench trial in the circuit court of Cook County they were found guilty of attempted murder. Defendant Jimmie Dockery was sentenced to five years' probation, and defendants Joseph and Carl Dockery were sentenced to terms of two to five years in the Illinois State Penitentiary. All defendants appeal.
On August 30, 1969, at about 6:30 in the evening, the complainant, Larry McHerron, his uncle, Jerry McHerron, and several others were near 2840 South State Street in the City of Chicago, engaged in a dice game. Jerry McHerron testified that while the game was in progress Carl Dockery approached them with a shotgun and ordered them to stay where they were. He stated Larry McHerron ran toward the building located at 2840 South State, when he was confronted by Joseph Dockery who displayed a hand gun. Joseph then told him to get on his knees. He stooped down and leaned against a fence. Jerry McHerron testified that Larry's hands went up in the air, and then a shot rang out from the gun in Joseph Dockery's hand.
Larry McHerron testified that as he leaned against the fence, he turned to see Jimmie Dockery come out of the building holding chains and a knife. He stated that as he turned the gun went off, he fell to the ground and was hit with the chains by Jimmie Dockery.
The day previous to the incident Larry McHerron and Jimmie Dockery had a fight over money Larry owed to Jimmie. Jimmie testified he had nine stitches in his head as a result of the fight.
Joseph Dockery testified he went looking for Larry McHerron after he saw his brother Jimmie at the hospital. He said he wanted to find out what happened, not to avenge his brother, that he wasn't upset over what happened to him. He stated Larry came running toward him with a knife in his hand. He then pulled out a blank pistol he had in his pocket and told him to halt. When Jimmie burst through the door, Larry "jumped up scared" and the pistol went off. He denied Jimmie had a knife or chains in his hands and denied Carl was there when the gun went off. However, he admitted he saw Carl about fifteen minutes after the incident.
Jimmie Dockery said he had no knife or chains in his hands and further stated he saw Larry McHerron strike his brother's hands when the gun fired.
Carl Dockery testified he had been in the area of the shooting the previous evening and had to leave his car there because it wouldn't start. He returned in the afternoon of the 30th to attempt to start it. He denied owning a shotgun and said his uncle, a mechanic, was able to fix his car but was arrested when he attempted to drive it away.
Detective Farley Miles, who investigated the shooting, went to Mercy Hospital and talked with Larry McHerron. From there he went to 2901 South Federal and located a 1964 Plymouth registered to Carl Dockery. Over the objections of defense counsel he stated he saw another officer remove a box from the car. On the box were the words: "E.J. Korvette, one shotgun."
Dr. David Vorce testified X-rays showed metal in the left parietal region of the victim's head. It was his opinion the metallic substance was the result of a bullet wound.
The defendants first complain that the common law record erroneously indicated they were found guilty of both attempted murder and aggravated battery when, in fact, the judge found them guilty only of attempted murder. The State concedes the error.
• 1, 2 Secondly, the defendants maintain it was error to admit the shotgun box into evidence, because it was recovered as the result of an illegal search. To support their contention they rely on Chimel v. California, 395 U.S. 752, and Preston v. United States, 376 U.S. 364. However, the facts in both of those cases are distinguishable from the case at bar. Chimel involved the warrantless search of a house after the arrest of the defendant in the house. In the case at bar the search of a car is in issue. Automobiles, because of their mobility, may be searched upon facts not justifying a warrantless search of a house. It is only necessary that the officers conducting the search "have reasonable or probable cause" to believe they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. Dyke v. Taylor Implement Co., 391 U.S. 216; Chambers v. Maroney, 399 U.S. 42.
Preston v. United States involves an automobile, but the court held the reason for the arrest of the defendants (vagrancy) did not give the police probable cause to believe that any other crime had been committed, therefore, searching the car without a warrant was a violation of the defendants' constitutional rights.
In the case at bar the officers knew the names of the individuals accused of the crime and were able to determine that the car, parked near the scene of the crime, belonged to one of them. Since they also knew that both a shotgun and pistol had been used to ...