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People v. Cole





APPEAL from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.


Following a jury trial in the circuit court of Sangamon County, defendant, Stuart Cole, was convicted of murder and sentenced to a term of from 50 to 75 years in the penitentiary. This judgment was reversed by the Appellate Court for the Fourth District, which held that defendant was unconstitutionally denied his right to a jury trial by an impartial jury. (132 Ill. App.2d 1041.) We allowed the State's petition for leave to appeal.

The defendant's first contention is that the State has no right to petition for leave to appeal from the appellate court's decision under our Rule 315 (50 Ill.2d R. 315). We do not agree with this contention. In People v. Perry, 52 Ill.2d 156, this court has recently recognized the right of the State to petition for leave to appeal from an adverse decision of the appellate court. Also, Rule 315(a) and Rule 604(a) have been amended effective November 30, 1972, specifically authorizing the State to petition for leave to appeal in such cases. 52 Ill.2d R. 315(a), R. 604(a).

On the morning of April 28, 1967, a freshly dug grave containing the mutilated remains of two men, subsequently identified as Merle Hornstein and Bill Worthington, was discovered southwest of Springfield. Interviews with persons acquainted with the deceased men, as well as a gravesite investigation, led police to believe that probable cause existed to arrest the defendant for the murders. On the afternoon of the 28th, at approximately 1:30, police proceeded to the defendant's residence, a former railroad blockhouse, where defendant was arrested. No evidence was seized at the time of arrest, but about one and one-half hours later at approximately 3 P.M., after the defendant had been taken from his home, evidence was taken from the defendant's residence without a search warrant by the officer in charge of preserving and cataloguing the evidence. Following the defendant's arrest another officer had been stationed at the premises until the investigating officer arrived.

The appellate court held that the taking of the evidence from the defendant's residence after he had been arrested and removed to the police station violated his rights under the fourth amendment to the Federal constitution. It held that the admission into evidence of the items taken, however, was harmless error. The evidence of the defendant's guilt aside from the evidence taken without a search warrant is indeed overwhelming.

One of the victims, Merle Hornstein, and another party owned the railroad blockhouse where the defendant lived. On April 27, 1967, at about 1 P.M., Hornstein and Bill Worthington left Hornstein's home in Springfield. They were driving Hornstein's red El Camino Chevrolet pickup truck. Hornstein was known to have had several hundred dollars in currency with him. At about 1:10 P.M. he stopped at a business establishment and asked a friend to accompany them to the blockhouse. The friend declined and Hornstein and Worthington drove off in the direction of the defendant's home. The red El Camino truck was seen parked at the blockhouse by several neighbors between 2 P.M. and 6 P.M. At that time the truck was empty. Two neighbors testified that during the afternoon two shots were heard. The sounds came from the direction of the blockhouse. About 6 P.M. the truck was seen leaving. At that time it contained boxes and bags.

About 7 P.M. the defendant purchased a flashlight, batteries, some rope and a long-handled tool at a local hardware store. The check-out lady was acquainted with the defendant and noticed that he was carrying a large sum of money in his money pouch. That evening he was seen driving the truck turning off the road which led to the vicinity of the gravesite onto a State highway. At 3:40 A.M. on April 28 the truck was found burning along the highway and a rifle which belonged to the defendant was found in the cab of the truck. Later that morning the defendant was seen walking along the railroad tracks toward Springfield.

A card addressed to the defendant was found near the gravesite and ballistic evidence indicated that metal fragments found in the dismembered bodies had been fired from the defendant's gun. Tire prints found near the gravesite were identified as having been made by the truck. When the police and the sheriff went to the blockhouse to arrest the defendant, they saw blood on the floor at the entrance to the building. The officers broke open the door and arrested the defendant on the roof of the building. At that time he was armed with a loaded .45-caliber automatic and a 12-gauge shotgun.

Items which were taken from the defendant's home and introduced into evidence were an ax, a broom, a five-gallon bucket, a sales slip, some sand, some soil and two small boards. Tests revealed the presence of human blood on each of these items. Also taken from the defendant's home and introduced into evidence were a small amount of substance believed to be human flesh and a piece of paper similar to paper found at the gravesite.

In light of the overwhelming evidence of guilt the appellate court properly held that any error committed in the introduction of these items into evidence was harmless error beyond a reasonable doubt. (Fahy v. Connecticut, 375 U.S. 85, 11 Ill. Ed.2d 171, 84 S.Ct. 229; Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824; Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726; Schneble v. Florida, 405 U.S. 27, 31 L.Ed.2d 340, 92 S.Ct. 1056.) However, for the reason stated later, this case must be remanded to the appellate court for consideration of other issues. We must therefore review the propriety of the appellate court's holding that the warrantless search and seizure violated the defendant's fourth-amendment rights as a guide to the trial court in the event a retrial is necessary.

The search and seizure in this case occurred before the decision of the United States Supreme Court in Chimel v. California (June 23, 1969), 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034. The decision in Chimel does not apply to searches conducted prior to that decision. (Williams v. United States, 401 U.S. 646, 28 L.Ed.2d 388, 91 S.Ct. 1148.) Therefore, the validity of the search and seizure incident to the arrest in this case must be judged by pre-Chimel standards.

The defendant contends that after he was arrested and taken to the jail, the officers could have procured a search warrant before conducting a search of his residence. The test relating to a warrantless search prior to Chimel was not whether a warrant could have been secured but whether the search without a warrant was reasonable. (United States v. Rabinowitz, 339 U.S. 56, 94 L.Ed. 653, 70 S.Ct. 430; People v. Hanna, 42 Ill.2d 323; see also People v. Pickett, 39 Ill.2d 88; People v. Brown, 38 Ill.2d 353; People v. Harris, 34 Ill.2d 282; People v. Jones, 31 Ill.2d 240; People v. DiGerlando, 30 Ill.2d 544; People v. Watkins, 19 Ill.2d 11.) "That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case." (339 U.S. at 66, 94 L.Ed. at 660.) We therefore find no merit in the defendant's contention that the search was invalid because it would have been practical for the officers to obtain a search warrant.

In determining the reasonableness of the search "The critical issue in each case must be whether the situation that confronted the officer[s] justified the search. * * * Other courts are in accord. They * * * have examined the nature of the offense and the surrounding circumstances to determine whether the search was warranted. [Citations.]" (People v. Watkins, 19 Ill.2d at 18.) In the present case in determining the validity of the search and seizure "it is the reasonableness of the search * * * which is of primary importance and ...

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