APPEAL from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
On February 24, 1971, in a case bearing Sangamon County Circuit Court Docket Number 144-71 the grand jury returned a two-count indictment charging that the defendant-appellant, Ernest B. Dinora, on the 18th day of August, 1970, committed the offense of keeping a gambling place in that he knowingly permitted a building located at 212 North Fourth Street, in the City of Springfield, occupied by him and under his control, to be used as a gambling place in violation of Ill. Rev. Stat. 1969, ch. 38, sec. 28-3. Count II of the indictment was also bottomed upon the same offense as described in Count I but sought the enhanced penalty provided in sec. 28-3 for each subsequent conviction and recited prior convictions of the defendant.
On February 24, 1971, in a case bearing Sangamon County Circuit Court Docket Number 148-71, the grand jury returned a five-count indictment charging the defendant-appellant Ernest B. Dinora with the offense of keeping a gambling place at 212 North Fourth Street on the 5th day of October, 1970. The other counts of the indictment sought enhanced penalty under the provisions of sec. 28-3 of the Criminal Code and recited prior convictions but all counts were keyed to October 5, 1970.
On March 19, 1971, the state's attorney in cause bearing Sangamon County Circuit Court Docket Number 185-71 filed a petition for injunction, to abate a nuisance, under the provisions of Ill. Rev. Stat. 1969, ch. 100 1/2, sec. 14 et seq. This petition named Dinora as the party defendant. The petition alleged that Dinora owned the premises at 212-214 North Fourth Street, recited that on November 30, 1970, he had pleaded guilty to a charge of keeping a gambling place at 212 North Fourth Street on May 20, 1969; that on the same day he pleaded guilty to a charge of gambling in that he possessed slips by which racing bets were recorded on May 23, 1969, which said slips were found during a search, pursuant to warrant, of the first floor rooms of 212 North Fourth Street; that the first floor rooms of 212 and 214 North Fourth Street and the basement which underlies them were so integrally related that they constituted a common gambling place "* * * and are a public nuisance by sec. 28-3 Criminal Code of 1961, as amended, and continue to constitute such nuisance, * * *." The petition prayed that the court declare all the first floor rooms at 212 and 214 North Fourth Street and the underlying basement, a public nuisance; that the court perpetually enjoin the use of the premises for such nuisance and that the court enjoin, for a period of one year, the use of said premises for any purpose whatsoever.
Ill. Rev. Stat. 1969, sec. 28-3, provides that a gambling place is any real estate used for purposes of gambling and that any person who permits any premises owned or occupied by him or under his control to be used as a gambling place, shall be fined or imprisoned and sub-sec. (a) of sec. 28-3 declares that "such premises is a public nuisance and may be proceeded against as such, * * *." Ill. Rev. Stat. 1969, sec. 37-4, provides, in pertinent part, that the state's attorney of the county of nuisance may commence an action to abate a public nuisance as described in sec. 37-1 of the Criminal Code. This section further provides that the proceedings and hearings upon the merits shall be in the manner of "an act in relation to places used for the purpose of using, keeping or selling narcotic drugs, approved July 5, 1957, reference being to Ill. Rev. Stat. 1969, ch. 100 1/2, sec. 14 et seq. Ill. Rev. Stat. 1969, sec. 37-1, provides that any building used in the commission of offense prohibited by sec. 28-3 of the Criminal Code is a public nuisance and provides for penalties by fine or imprisonment or both. Ill. Rev. Stat. 1969, ch. 100 1/2, sec. 17, provides that upon the filing by the state's attorney of a complaint to abate a public nuisance the defendant shall be held to answer the allegations of the complaint "* * * as in other civil proceedings." Sec. 18 of the statute provides in pertinent part that "The plaintiff at any time before, but not later than 10 days after, the filing of the answer, * * * may file interrogatories in writing concerning matters material to the allegations of the complaint or respecting the ownership of the property upon which it is claimed the nuisance is maintained. A full answer to each interrogatory under the oath of the defendant shall be filed with the clerk within 10 days after a copy of the interrogatories has been served upon him. For a failure to so answer interrogatories the court may strike the answer to the complaint from the files and enter default and a decree pro confesso, and a rule to answer interrogatories may be entered and the court may punish a defendant for contempt of court for a refusal to obey such rule. No person shall be excused from answering interrogatories under oath on the ground that an answer may tend to incriminate him or subject him to a penalty or forfeiture. The answer shall be evidence against, but not on behalf of, the defendant and it shall not be used against him in any criminal proceeding nor shall he be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter or thing disclosed by him in such answer responsive to the interrogatories." (Emphasis supplied.)
In the action to abate the public nuisance, and pursuant to sec. 18 of the statute, the state's attorney propounded certain interrogatories to the defendant Dinora, a portion of which, together with defendant's responses, is as follows:
"INTERROGATORY 1) State whether Defendant is the true owner of the premises described in paragraph 1 of the Petition filed herein.
ANSWER TO NO. 1) Yes, together with his wife.
INTERROGATORY 5) State whether any gambling has occurred on the premises described in paragraph 1 of the Petition filed herein during the period of time the Defendant has owned, occupied or controlled said premises; for each such occurrence of gambling state:
c) Which room of the premises it occurred in
d) Whether any record was made of any bet ...