APPEAL from the Circuit Court of Morgan County; the Hon. J.
WALDO ACKERMAN, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
In a trial by jury before the Circuit Court of Morgan County defendant Martin L. Hammers, Jr., was found guilty of the murder of Rose Ann Charapata. He was subsequently sentenced to a term of 50 to 150 years' imprisonment. Upon appeal he contends that the court erred in denying his motion to suppress a search warrant and the evidence seized pursuant thereto, that the court erred in giving and refusing certain instructions, and that he was not proved guilty beyond a reasonable doubt.
• 1 The substance of defendant's motion to suppress was that the verified complaint upon which the warrant was issued was insufficient to show probable cause that defendant committed the murder or possessed the .38-caliber pistol sought to be seized. The People maintain that the denial of the motion would have been proper even if the complaint was insufficient because the defendant put on no evidence in support of his motion. "Probable cause for the issuance of a search warrant must be found in the complaint for the warrant." (People v. George, 49 Ill.2d 372, 377, 274 N.E.2d 26, 29.) Since the complaint was before the court, defendant did not need to put on any evidence to support his motion. People v. Considine, 107 Ill. App.2d 389, 246 N.E.2d 81.
The language of the affiant in the complaint upon which the search warrant was issued stated in pertinent part:
"That on or about the 10th day of July, 1973, at about the hour of 4:00 a.m., he verily believes that the offense of murder was committed, and affiant states (set forth facts sufficient to show probable cause for the issuance of a search warrant): that he has probable cause to believe that a .38 caliber pistol is within the premises of 1129 Illinois Avenue, Jacksonville, Illinois, because at approximately the time above mentioned Rose Ann Charapata was killed with a .38 caliber pistol on Johnson Street. In talking with an eyewitness to the shooting, it was told that the person who shot the victim was riding a bicycle with the victim seated behind him. Today, the affiant interviewed a person who talked with Martin Hammers for about one hour between 2:00 a.m. and 3:00 a.m. on the night just mentioned at a location five blocks from the murder scene, at which time Martin Hammers asked the person if she was afraid to be shot.
During the conversation Hammers tried to get into her house but she would not allow it. While these two persons stood on the porch on Railroad Street, the victim walked past the house twice, and Hammers asked who the girl walking was. After the victim passed the house on foot the second time the informant told me that Hammers got on his bicycle and left her house.
The informant says that she went into her house, looked out a window and saw Martin Hammers on his bicycle alongside the victim proceeding together over the railroad tracks at the corner of Howe Street and Railroad Street, six blocks from the murder scene. The affiant has never received information in the past from this informant, but he considers her to be reliable since time elements, description, location and the fact that the murderer was on a bicycle all coincide with this investigation.
The fact about the bicycle has not been published nor did this affiant tell the informant that the murderer was on a bicycle. Martin Hammers resides at 1129 Illinois Avenue, Jacksonville, Illinois, wherein I believe a .38 caliber pistol will be found and asks that the Judge may issue a Search Warrant for the seizure of the following:
and ask that said Warrant shall issue for the search of the following particularly described place or person or both:
A white one-story wood frame house and outdoor toilet structure and a yellow 1969 Pontiac GTO automobile located at 1129 Illinois Avenue, Jacksonville, Illinois."
The affiant appears to be a police investigator or officer. The complaint consists mostly of his hearsay assertions of conversations he had with two unnamed informants. In United States v. Harris, 403 U.S. 573, 579, 29 L.Ed.2d 723, 731, 91 S.Ct. 2075, 2080, the plurality opinion stated: "A policeman's affidavit `should not be judged as an entry in an essay contest'" (citing Fortas, J., dissenting in Spinelli v. United States, 393 U.S. 410, 438, 21 L.Ed.2d 637, 657, 89 S.Ct. 584, 600), "but, rather, must be judged by the facts it contains." The affidavit must, however, meet certain requirements as the court stated in People v. Morrison, 13 Ill. App.3d 652, 654, 300 N.E.2d 325, 327:
"The rules of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, state that when probable cause is based solely or partially upon an informant's information, there must be a detailing of the underlying circumstances showing why the informant's conclusions are believable, and why the informant is credible or reliable."
• 2 The plurality opinion in Harris stated, and the dissent agreed, that if affiant's informants are shown to be eyewitnesses, the judicial officer to whom the complaint is presented may determine that the informants' conclusions are believable. In the instant case, both informants are shown to be eyewitnesses to the matters about which they reported. The issuing judge, thus, had ample grounds to find their conclusions believable. The question of the sufficiency of the complaint to show facts and circumstances from which he would find the informants to be reliable is more difficult.
The People contend that the affidavit meets this test because the statements of the informants corroborate each other. Each states that he or she saw the victim within a six-block area in the City of Jacksonville within an hour's time of each other. Each says that he or she saw the victim at this time in the presence of a person who had a bicycle at a time of night or early morning when few people would be on the street and fewer still would be there with a bicycle. One informant said that the person accompanying the victim shot her. The other informant said that the defendant was the person she saw with the victim and that prior to joining the victim, the defendant had asked that informant if she was afraid to die. The weight to be given to the corroboration is strengthened by the affiant's statement that the information about the presence of the bicycle had not been published nor had affiant given this information to informants. We are not advised, however, of any case that has passed on the question of whether corroboration of each of two unnamed informants by the other is a sufficient underlying circumstance to permit the judicial officer to whom the complaint is presented to conclude that the informants are credible.
In Harris, there was held to be a sufficient showing of reliability where the informant, in addition to being corroborated, made a declaration against penal interest. In Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, a similar holding was made where the informant was not only corroborated but was also stated by the complainant to have given reliable information in the past. In Spinelli the court analogized the showing necessary to establish probable cause for an arrest without a warrant to that necessary to be made before a judicial officer for the issuance of a search warrant. In People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466, the Supreme Court held that police officers had reasonable cause to make an arrest without a warrant based upon information given them by two named informants, part of which was a hearsay statement attributed to the deceased victim. The court stated, "* * * the usual requirement of prior reliability which must be met when police act upon `tips' from professional informers does not apply to information supplied by ordinary citizens." (39 Ill.2d 489, 514, 237 N.E.2d 466, 481.) Here, there is no direct statement in the complaint as to whether the informers were professionals or ordinary citizens. Every inference would indicate that they are ordinary citizens, for it would be inconceivable that one professional informant would happen to be nearby when the victim was killed and that the defendant would be talking to another professional informant about one hour before the crime at that informant's house.
In Morrison an informant was shown to be sufficiently reliable where she was stated to be the wife of the owner of guns sought to be seized, was able to set forth in great detail the location of the guns, and was corroborated by the statement of the complainant that he had earlier seen guns at that place. Also, in United States v. Unger (7th Cir. 1972), 469 F.2d 1283, cert. denied, 411 U.S. 920, 36 L.Ed.2d 313, 93 S.Ct. 1546, the complainant stated in the affidavit presented to the commissioner issuing the warrant that an unnamed informer had told him of the location of contraband guns in great detail as described in the affidavit. The court noted that the informant's information was not self-serving and there was no indication that it was given in spite. No reference was made in the affidavit to the reliability of the informer. On this point, the opinion stated that in Harris the United States Supreme Court had inferred that "the burden of satisfying the so called second prong of ...