Category Archives: Interesting Cases

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

Appellate Court of Illinois, Second District.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Donald R. BRAUSAM, Defendant-Appellant.

Gen. No. 66-149 M.

 

June 14, 1967.

 

Prosecution for drag racing. From a judgment of conviction of the Circuit Court, Lake County, Eugene T. Daly, J., the defendant appealed. The Appellate Court, Davis, P.J., held that the defendant, who was charged under an unverified uniform traffic ticket and complaint, waived the failure to verify complaint by proceeding to trial without objection to form of complaint, and that the complaint, which merely charged defendant with drag racing in violation of specified statute and gave time and place of offense, was sufficiently precise to apprise accused of nature and elements of offense charged.

 

Affirmed.

Key Issues Decided:

Although code of criminal procedure requires that a complaint be verified in order to sustain a criminal prosecution, lack of verification does not affect jurisdiction of the court. S.H.A. ch. 38, par. 111-3(b).

The right to be charged by a properly verified complaint can be waived and is waived unless accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection. S.H.A. ch. 38, par. 111-3(b).

Defendant charged with drag racing by an unverified uniform traffic ticket and complaint waived right to be tried upon a verified complaint where no pretrial motion was made and defendant proceeded to trial without objection to form of complaint. S.H.A. ch. 16, §§ 81-85; ch. 38, § 111-3(b); ch. 95 1/2 , § 145.1; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Although defendant contended that complaint failed to set forth nature and elements of the offense charged as required by statute, reviewing court was required to decide only if complaint was so defective that it did not charge an offense, where that was issue raised by defendant’s motion in arrest of judgment. S.H.A. ch. 38, § 111-3(a).

The purpose of statute and constitutional provision requiring complaint to set forth nature and elements of offense charged is to make certain that accused will be adequately informed of nature and elements of offense charged against him so that he may prepare his defense and protect himself from double jeopardy. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Whether accused is adequately informed of nature and elements of the offense charged must be determined by substance of charge and not by mere technicalities of its language. S.H.A. ch. 38, § 111-3(a); S.H.A.Const. art. 2, § 9.

Statutory requirement that complaint set forth nature and elements of offense charged is met if indictment, information or complaint charges offense in language of statute when that statute sufficiently particularizes offense so that defendant is notified with reasonable certainty with what he is charged. S.H.A. ch. 38, § 111-3(a).

A charge solely in language of statute is insufficient only where statute does not describe acts which constitute crime or where by generality of statute it may embrace acts which statute does not intend to punish. S.H.A. ch. 38, § 111-3(a).

Legislative enactments providing procedures for getting persons into court without necessity and inconvenience of immediate arrest, and court rule implementing such procedures, being pari materia were to be construed together in determining intent of Legislature. S.H.A. ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Primary object of statutory construction is to ascertain and give effect to legislative intent, and court should consider reason or necessity for enactment, contemporaneous conditions, existing circumstances and object sought to be obtained by statute.

Court was required to presume that statutes and court rule relative to procedures for judicial processing of minor offenses related to one subject and were governed by one policy and spirit and that Legislature intended the several statutes and court rule to be consistent and harmonious. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12; Rules Relating to Procedures in Traffic Cases, S.H.A. ch. 110, § 102.1, par. C.

Traffic ticket and complaint charging defendant with drag racing in violation of specified statute was sufficiently precise to apprise accused of nature and elements of offense charged. S.H.A. ch. 38, § 111-3(a), ch. 95 1/2 , § 145.1.

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors, where accused is brought into court by notice or summons, and without necessity of arrest, need not be set forth with the same technical precision required in an indictment, verified complaint or information. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Charge made on uniform traffic ticket and complaint form and charge in quasi criminal cases and misdemeanors must inform accused of nature and elements of the offense with which he is charged, but charge may be simply stated by reference to commonly used name for offense along with reference to statute or ordinance allegedly violated and time and place of violation. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

If charge in traffic and other minor criminal cases sets forth nature and elements of offense charged against accused so that he may prepare his defense and be assured of constitutional privilege against double jeopardy statutory provision requiring that charge set forth nature and elements of offense has been complied with under informal procedure for traffic violations, quasi criminal cases and other misdemeanors. S.H.A. ch. 16, §§ 81-85; ch. 38, §§ 107-11, 107-12, 111-3(a, b).

Case:

This is an appeal from a judgment entered by the trial court finding the defendant, Donald R. Brausam, guilty of drag racing in violation of the provisions of section 48.1 of the Uniform Act Regulating Traffic on Highways.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment *358 should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors,**536 does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without*359 the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The *360 right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

The defendant further contends that the complaint was defective on the ground that it failed to sufficiently charge him with the offense of drag racing, in that an essential element thereof is that the defendant engaged in a racing competition; and that the omission of this allegation in the complaint rendered it fatally defective. The **537 traffic ticket and complaint charged the defendant with committing the offense of ‘drag racing in violation of section 48.1 of the U.A.R.T., on July 25, 1966, at 9:35 P.M., at North Avenue-west of Trevor Rd. in Lake County, Illinois.’ (Ill.Rev.Stat.1965, ch. 95 1/2, par. 145.1.)

Section 111-3(a) of the Criminal Code (Ill.Rev.Stat.1965, ch. 38, par. 111-3(a)) sets forth the requisites for a valid criminal complaint:

‘A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to have been violated;

(3) Setting forth the nature and elements of the offense charged;

(4) Stating the time and place of the offense as definitely as can be done; and

(5) Stating the name of the accused, if known, and if not known, designate the accused by *361 any name or description by which he can be identified with reasonable certainty.’

Defendant’s contention is that the requirements of sub-paragraph (3) above are not met, as the necessary element of racing or competition is not alleged.  In answering defendant’s contention, we must keep in mind that the question before this court is whether the complaint was so defective that it did not charge an offense.  That was the issue raised by defendant’s motion in arrest of judgment and it is all that we are called upon to decide.   People v. Blanchett, 33 Ill.2d 527, 530, 531, 212 N.E.2d 97 (1965).

The purpose of section 111-3(a) of the Criminal Code, as that of section 9 of Article II of the Illinois Constitution, S.H.A., is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense.   People v. Griffin, 36 Ill.2d 430, 432, 223 N.E.2d 158 (1967); People v. Peters, 10 Ill.2d 577, 580, 141 N.E.2d 9 (1957); People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967); People v. Laczny, 63 Ill.App.2d 324, 330, 331, 211 N.E.2d 438 (1965).  Whether this objective is attained and the requirements of the section met must be determined by the substance of the charge and not by mere technicalities of its language.   People v. Billingsley, 67 Ill.App.2d 292, 299, 213 N.E.2d 765 (1966). ‘It is clear that many of the old pleading technicalities are no longer required under the existing law. Centuries ago, the punishment was severe and the courts attempted to compensate by strictly construing the pleading requirements. The main requirement today is simplicity in order that the accused will understand the charge against him.’   People v. Blanchett, supra, 33 Ill.2d 532, 533, 212 N.E.2d 100.

*362It is sufficient for the purposes of section 111-3(a), and the safeguard it is designed to protect, that the indictment, information or complaint charge the offense in the language of the statute when that statute sufficiently particularizes the offense so that the defendant is notified with reasonable certainty with what he is charged.   People v. Sims, 393 Ill. 238, 241, 66 N.E.2d 86 (1946); People v. Billingsley, supra, 67 Ill.App.2d 298, 213 N.E.2d 765. It is only where the statute does not describe the acts which constitute the crime. ( People v. Griffin, supra, 36 Ill.2d 432, 433, 223 N.E.2d 158; People v. Green, 368 Ill. 242, 254, 255, 13 N.E.2d 278, 115 A.L.R. 348 (1938)), or where, by the generality of the statute it may embrace acts which the statute does not intend to punish, that a charge, solely in the language of the statute, is not sufficient.   People v. Peters, supra, 10 Ill.2d 580, 581, 141 N.E.2d 9; People v. Billingsley, supra, 67 Ill.App.2d 299, 213 N.E.2d 765.

**538 However, cases arising under the U.A.R.T., seldom come before reviewing courts.  Section 137 of the Act provides that it is a misdemeanor for any person to violate any of the provisions of the Act, unless by said Act, or other law of this State, such violations are declared to be a felony.   (Ill.Rev.Stat.1965, ch. 95 1/2, par. 234.) Ordinarily, the amount of the fine is small and the offense is not of a serious nature.  Such circumstance is true with reference to certain other misdemeanors and quasi-criminal offenses.

To expedite the handling of such cases, the Supreme Court adopted the Rule in question which sets forth the form of the ‘Illinois Uniform Traffic Ticket and Complaint’ and the Rule related generally to traffic cases, quasi-criminal cases and certain misdemeanors. Contemporaneously, the legislature provided ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A. ch. 38, pars. 107-11, 107-12 Committee Comments.) It also designated officers to let persons charged with quasi-criminal offenses and misdemeanors to bail and to accept*363 and receipt for fines on pleas of guilty in minor offenses, in accordance with schedules established by Court Rule. (Ill.Rev.Stat.1965, ch. 16 pars. 81-85 incl.) The Court Rule which the legislature referred to was the Rule heretofore cited.

This Rule and these legislative enactments indicate that a less formal procedure is necessary in the handling of such minor offenses, whereby the person accused may get into court by the traffic ticket, notice to appear or by summons, and without the necessity of arrest. If the person does not obey the notice or summons, then an arrest warrant may issue.

The statement of the issue before us for decision, and the statutes and Court Rule involved, disclose that the overall legislation and Rule are not without ambiguity.  The legislative enactments and the Court Rule, being in pari materia, should be construed together to determine the intent of the legislature.  The primary object of statutory construction is to ascertain and give effect to such intent, and courts should consider the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statutes.   People ex rel. Krapf v. Hayes, 13 Ill.2d 143, 147, 148 N.E.2d 428 (1958).  We must presume that the several statutes and the Court Rule relative to procedures for the judicial processing of minor offenses within the area herein defined, relate to one subject and are governed by one policy and spirit; and that the legislature intended the several statutes and the Court Rule to be consistent and harmonious.   Scofield v. Board of Education, 411 Ill. 11, 20, 103 N.E.2d 640 (1952); Ashton v. County of Cook, 384 Ill. 287, 298, 51 N.E.2d 161 (1943).

The population increase in Illinois over the past decade, a deeper understanding of the use of sanctions in law enforcement, and the increase in the use of automobiles over our improved highways in an effort to meet the *364 necessity for travel in our complex and growing society are, in part, the reason for getting persons into court without the necessity and inconvenience of an arrest, for letting persons charged with traffic violations, other misdemeanors and quasi-criminal offenses to bail, and for the informal receipting for fines on pleas of guilty in such minor offenses.

From the pertinent legislation and rule, we believe that the legislature intended to create, within our criminal procedure, an expeditious method for the enforcement of traffic offenses, misdemeanors and quasi-criminal offenses, which would relax the rigidity of the requirements of our criminal law for the convenience of the individual, without an impingement upon his rights and without sacrifice of the welfare of society generally. We believe that within the **539 area thus defined by these legislative enactments and the Court Rule, the legislative purpose should be effectuated; and that the principles of construction must not be too literal.

The complaint charged the defendant with ‘drag racing’ as heretofore specified. Under our construction of the aforesaid pertinent statutes and the Court Rule, we find that the charge was sufficiently precise to apprise the accused of the nature and elements of the offense charged. Section 48.1 of the statute clearly defines the meaning of ‘drag racing’ as used in the complaint, as follows:

‘For the purpose of this Section ‘drag racing’ means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him or one or more individuals competing in a race against time on any street or highway in this State.’

*365 The charge of ‘drag racing’ does not include the multitude of different acts which would leave the defendant uncertain as to the particular act which constituted the basis of the offense charged. Such offense is not susceptible of the uncertainty which might result from a charge of ‘reckless driving.’   People v. Griffin, supra, 36 Ill.2d 431, 432, 223 N.E.2d 158; People v. Deakyne, Ill.App., 227 N.E.2d 531 (1967) and cases cited therein. Under the ‘reckless driving’ charge, the nature and elements of the offense are left to doubt.

However, the offense of ‘drag racing’ as defined by the statute is not fragmented into many separate and different acts, any one of which may constitute the offense. The statute defines one total offense, the essence of which is the act of competing or racing on any street or highway. We believe that the charge as specified on the U.A.R.T. form clearly apprised the accused of the particular acts on which the charge was based. We hold that the traffic ticket and complaint was not so defective as to fail to charge an offense.

While a person accused of a traffic violation has every right to be informed of the nature and elements of the offense charged against him, we are not unmindful of the circumstances under which traffic tickets are normally issued, and we recognize that they are drafted by laymen and may not be drawn with the care and precision of an indictment, information or complaint charging a more serious offense.

The charge made on the Uniform Traffic Ticket and Complaint form and the charge in quasi-criminal cases and misdemeanors where the accused is brought into court by notice or summons-and without the necessity of arrest-need not be set forth with the same technical precision required in an indictment, verified complaint or information. The charge under the informal procedure for handling these minor offenses must inform the accused of the nature and elements of the offense with which he is charged, but the charge may *366 be simply stated by reference to the commonly used name for the offense, along with reference to the statute or ordinance alleged to have been violated and the time and place of the violation. If the charge stated sets forth the nature and elements of the offense charged against the accused so that he may prepare his defense and be assured of his constitutional privilege against double jeopardy, then we believe that section 111-3(a)(3) of the Criminal Code has been complied with under this informal procedure for processing traffic violations, quasi-criminal cases and other misdemeanors.

**540 The machinery of government cannot adequately function without a little play in its joints. Without such procedures, the rigid technicalities of the Criminal Code would overtax our judicial system. With the flexibility of our criminal procedures in this limited area of law enforcement, we can adapt the wisdom and experience of the past to these complex problems of the present. Any person may enjoy all of the protective benefits of our Criminal Code by demanding that he be prosecuted by a verified complaint, or he may waive such rights. If an accused elects to proceed to trial under these informal procedures, he is still entitled to be adequately informed of the nature and elements of the offense, but the charge need not be stated with the specificity required in an indictment, verified complaint or information.

In Miranda v. State of Arizona, 384 U.S. 436, at page 467, 86 S.Ct. 1602, at page 1624, 16 L.Ed.2d 694, at page 720 (1966), the court stated:

‘We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.’

Thus, Miranda not only sets forth mandatory guidelines for the administration of criminal justice, but also exhorts*367 the States to exercise their own creative methods to bring about independent and constitutionally permissible solutions of such problems. If adequately solved through the construction of existing legislation and court rule, such problems may never reach the federal constitutional level. Such is our intent and purpose herein.

Accordingly, the judgment is affirmed.

Judgment Affirmed.

ABRAHAMSON and THOMAS J. MORAN, JJ., concur.

Ill.App. 1967.

People v. Brausam

83 Ill.App.2d 354, 227 N.E.2d 533

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Motion to Reconsider Courts Dismissal of Case 10-MR-212 Absent a Review of all Authorities Cited in Petitioner's Memorandum of Law

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

Motion for Mandatory Judicial Notice can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW


     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW, states as follows:

 

1. That the above-captioned case was filed, to the best of the Plaintiff’s knowledge, on June 17, 2010, following Plaintiff personally tendering to Brendan Kelly, then Clerk of the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois, a number of documents captioned “Complaint and Affidavit in Support Thereof” which Plaintiff represented to be sworn complaints alleging violations of law by persons named therein, and which are sworn to by the Plaintiff and verified by the affixment of a signature and notarial seal from a Notary Public of the State of Illinois .

2. That then Clerk of the Circuit Court, Brendan Kelly, did presumably act within the Constitutional authority of his office in bringing said complaints before the court by way of his filing of the above-captioned case.

3. That the issue before this Court, originating with an officer of the Court filing said complaints, implies a remedy which exists with the Judiciary.

4. That if a remedy had existed with the administrative, as with the State’s Attorney, then it would be reasonable to assume that Mr. Kelly would not have taken the action of filing Plaintiff’s complaints in such fashion and would have instead either refused to accept Plaintiff’s complaints or directed Plaintiff to the State’s Attorney, which he did not.

5. That this Court is in possession of sworn complaints which originate with the Plaintiff, were received by an officer of the Court, presumed to be properly filed, and which conform to statutory requirements for presentment to a Court.

6. That this Court has essentially been presented with complaints which charge that an offense has been committed, thereby imposing a mandatory duty upon the Court by way of the plain language of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a)to examine the complainant upon oath or affirmation.

7. That on August 16, 2010, to the best of the Plaintiff’s knowledge, additional complaints were added to the file subsequent to Plaintiff’s mailing of said complaints to Brendan Kelly, Chief Judge, John Baricevic, and then State’s Attorney, Robert Haida.

8. That the person responsible for supplementing the file with the additional complaints was then Clerk of the Circuit Court, Brendan Kelly.

9. That it is the Plaintiff’s belief that the person responsible for the filing of the above-captioned case is none other than then Clerk of the Circuit Court, Brendan Kelly.

10. That the above-captioned case was assigned to the Honorable Brian Babka pursuant to an Order entered by Chief Circuit Judge, John Baricevic on December 7, 2010.

11.That the above-captioned case contains no other pleading, motion, or prayer for relief, which would indicate a remedy sought by the Plaintiff.

12. That the Plaintiff did appear before the Honorable Brian Babka on February 24, 2011 for a hearing regarding this case.

13. That the Plaintiff did engage this Court with a verbal recitation of what he believed to be the circumstances giving rise to the Court being in possession of said complaints.

14. That this Court did identify and recognize the Plaintiff’s documents as being complaints alleging criminal offenses, and did thereby ask by what authority the Plaintiff believed he had a right to bring said complaints before a Court and not a State’s Attorney or police agency.

15. That the Plaintiff did provide one authority he felt best supported his position, that being Lindquist v. Friedman’s, Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

16. That this Court said it would review the cited case and discuss its findings in a subsequent hearing.

17. That the Plaintiff did appear before the Honorable Brian Babka on May 12, 2011 for the purpose of discussing his review of Lindquist and its application to Plaintiff’s case for bringing complaints before the Court.

18. That Judge Babka did state that he did thoroughly research the Lindquist case and found it to still be current, and not overturned in any subsequent Appellate Court opinion, notwithstanding that opinion being rendered in 1937.

19.That Lindquist does speak to, and confirm the right, of a private individual to bring charges alleging violations of law before a “magistrate” for the purpose of a court examining the complainant and if, upon a finding of probable cause, issuing warrants of arrest for the accused to be brought before the Court to answer the charges and post bail, if need-be.

20.That the only exception between Lindquist and this case before the Court, as voiced by the Judge Babka, was that of there being no judicial officers presently serving in Illinois under the title of “magistrate”.

21.That Judge Babka did say that due to the lack of an identifiable judicial officer serving under the title of “magistrate”, an otherwise valid remedy is no longer available.

22. That Judge Babka did say that should the Plaintiff care to research the issue of “magistrates” and find where an answer affords a remedy, he may present that information to the Court for further review.

23. That Judge Babka did leave the above-captioned case open and scheduled for another status hearing in one year.

24. That upon further inquiry into the issue of judicial officers previously known as “magistrates”, no longer serving under that title in the State of Illinois, and if so empowered to hear complaints and issue warrants, to whom did that power now devolve, and what became of that judicial office, Plaintiff did file his MEMORANDUM OF LAW on June 13, 2011 which speaks to those very issues.

25. That in said Memorandum, the Plaintiff not only cites Lindquist, but other authorities as well, which not only support his position regarding bringing charges directly before a Court, but which also settles the question as to the fate of heretofore magistrates, who were empowered with hearing complaints, examining complainants, and issuing warrants of arrest, as having undergone a title change to that of Associate Judge, still possessing the same powers and duties as magistrates per the Illinois Constitution of 1970.

26. That among said authorities cited in Plaintiff’s Memorandum are citations from the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which impose a mandatory duty upon a Court to act when presented with a complaint that conform to statutory requirements.

27. That among said authorities cited in Plaintiff’s Memorandum is the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention, which identify Associate Judges as having previously been titled magistrates, and who have the authority to issue arrest warrants, and conduct preliminary examinations of persons arrested.

28. That on June 20, 2011, the Honorable Brian Babka did issue an Order in response to Plantiff’s Memorandum.

29. That in said Order, Judge Babka cites the case of People ex rel.Daley v. Moran 94 Ill. 2d 41, 445 N.E. 2d 270, 67 Ill. Dec 790 in response to Plaintiff’s Memorandum, specifically one case therein cited as Lindquest v. Friedman’s Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).

30. That Plaintiff did provide other supporting authorities for his position, as well as raising other arguments in his Memorandum, that were not addressed in the Order.

31. That the Order mischaracterizes the remedy sought by the Plaintiff and is thereby unresponsive in that:

a. Plaintiff does not seek the issuance of arrest warrants, exclusively.

b. That Plaintiff is not seeking to exercise, or to have this Court exercise, any power belonging to the State’s Attorney, other Administrative Officer, or otherwise violate the doctrine of separation of powers.

c. That Illinois Law, Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., is clear on the procedure for presentment of a complaint to a court, and a duty of a Court to act when so presented, as cited in Plaintiff’s Memorandum, but such issue is not addressed in the Court’s Order dismissing this case.

d. That the case of People ex rel Daley v. Moran, cited in the Order, does not speak to the issuance of arrest warrants, but merely speaks to the separation of powers between the judiciary and administrative when charging an offense, making no mention of receiving complaints or examining complainants, and is not therefore on-point for the purposes of Plaintiff’s remedy.

e. That Plaintiff agrees with the holding in People ex rel Daley v. Moran, as the discretion for prosecution rests with the State’s Attorney, however the power to hear complaints, examine complainants, issue warrants of arrest, and conduct preliminary examinations, rests solely with the judiciary, of which Associate Judges are a part.

f. That Plaintiff answered the Court’s question as to magistrates and any corresponding judicial officer presently sitting and empowered to act upon complaints, by way of his Memorandum, where he cites the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention.

g. That the contents of the file for this case do not clearly speak to the remedy sought by the Plaintiff, and the record is thin on written evidence, relying solely upon brief oral arguments which may not have clearly presented.

h. That the remedy sought by the Plaintiff is to present his sworn complaints and supporting evidence to a judicial officer empowered to hear such complaints, and to avail himself to being examined under oath, as required by law, and for such judicial officer to act upon the results of such presentment and examination according to law.

32. That this court has not reviewed, nor addressed, other supporting authorities presented, notwithstanding Lindquist, that affirm the right of a private individual to bring complaints before a Court.

33. That judicial officers once serving under the title of “magistrates”, now serve in the same capacity as Associate Judges, following a renaming of magistrates in the Illinois Constitution of 1970, but retaining the powers and duties previously assigned.

34. Therefore, considering all facts and circumstances to-date, it is reasonable to assume that a remedy exists with this Court for addressing or otherwise acting upon the Complaints contained therein

WHEREFORE, In light of the foregoing, and in the interest of justice and submission to the laws of the State of Illinois, Plaintiff hereby requests this Court to reconsider its Order of June 20, 2011 which dismissed the above-captioned case, and review all of the information before it.

                       

Mark R. McCoy, Petitioner

                       

Date


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Motion for Mandatory Judicial Notice in Support of Petitioner's Motion to Reconsider

This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://markmccoy.com/wp/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/

The Motion to Reconsider can be found here.

IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. CLAIR COUNTY, ILLINOIS

 

Mark R. McCoy,

Petitioner,

 

-VS-

Case No. 10-MR-212

Joshua Alemond

Aaron Nyman

Respondents.

 

MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER

     NOW comes the Petitioner, Mark R. McCoy, and through his MOTION FOR MANDATORY JUDICIAL NOTICE IN SUPPORT OF PETITIONER’S MOTION TO RECONSIDER, moves this Court to take Mandatory Judicial Notice of the following matters set forth hereafter, pursuant to the Mandatory Provisions of the Illinois Code of Civil Procedure Section 735 ILCS 5/8-1001 et seq., which Motion is made in support of the here accompanying MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW.

 

MATTERS TO BE JUDICIALLY NOTICED

 

1. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which defines the requirements for bringing complaints before a Court, examination of complainants and witnesses, and issuance of arrest warrants.

2. The Court should take Judicial Notice of the contents of the Case File as containing documents captioned as “Complaint and Affidavit in Support Thereof” which are sworn to by the Plaintiff and which meet the requirements for a complaint pursuant to the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(b)(1)(2)(3)(4) which states:

“(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.”

3. The Court should take Judicial Notice of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) which states, “When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.”

4. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not limit what court may hear complaints, be they administrative, criminal, or civil.

5. That the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a) does not specify who may, nor preclude who may not, present a complaint to a court.

6. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑9 which defines a complaint to mean: “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.”

7. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑10 which defines a court to mean: “Court” means a place where justice is judicially administered and includes a judge thereof.

8. The Court should take Judicial Notice of Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 which defines a judge to mean: “Judge” means a person who is invested by law with the power to perform judicial functions and includes a court when a particular context so requires.”

9. That the Illinois Code of Criminal Procedure 725 ILCS 5/102‑13 does not exclude associate judges.

10. That the Court should take Judicial Notice of the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices.

11. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the renaming of magistrates to associate judges.

12. That the Constitution of the State of Illinois, 1970, Transition Schedule, Section 4. Judicial Offices details the duties and responsibilities of associate judges as those belonging to former magistrates.

13.That the Court should take Judicial Notice of the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.

14. That the Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970 mentions on a number of occasions, the intent and application of the proposed renaming of magistrates to associate judges.

 

ANDREW J. KINDRED v. JOSEPH STITT et al. 51 Ill. 401, 1869 WL 5352 (Ill.)

Supreme Court of Illinois.

ANDREW J. KINDRED

v.

JOSEPH STITT et al.

September Term, 1869.

West Headnotes

Arrest 35 64

35 Arrest

35II On Criminal Charges

35k64 k. Private Persons, Arrest Without Warrant. Most Cited Cases

A private person has no right to arrest another on mere suspicion that he has been guilty of a crime.

Arrest 35 66

35 Arrest

35II On Criminal Charges

35k66 k. Place of Arrest or Stop. Most Cited Cases

The fact that a person is police constable in a county gives him no authority to make an arrest without a warrant in another county.

False Imprisonment 168 29

168 False Imprisonment

168I Civil Liability

168I(B) Actions

168k21 Evidence

168k29 k. Aggravation of Damages. Most Cited Cases

In an action for false imprisonment, it is proper for the plaintiff to show what occurred after the arrest, his transportation to another county and confinement in a filthy cell, and his discharge without examination, as bearing upon the question of damages.

*1 APPEAL from the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

This was an action of trespass, for an assault and false imprisonment, brought in the court below by Andrew J. Kindred against Stitt, Blair and Towers.

It appears from the evidence that prior to the 5th of Octotober, 1867, several burglaries, and other crimes, had been committed in Woodford county, in this State, and that the plaintiff, Kindred, was suspected of being one of the guilty parties. Accordingly, on the 5th of October, the defendants, Stitt and Blair, citizens of Woodford county, and Towers, a police constable and detective, residing in Peoria county, placed handcuffs upon him and conveyed him to Peoria county, where he was placed in jail, in a filthy cell, and detained there for a period of three days, when he was discharged without an examination, and without having been taken before a magistrate for that purpose. Neither of the parties who participated in the arrest had any warrant therefor.

It seems that the detective, Towers, had been informed, by telegraph, by a citizen of Woodford county, that some horses had been stolen near Eureka, in that county, and upon coming to Eureka, Towers was informed by some of the citizens of the various other crimes which had been committed in the neighborhood, and was employed by them to ferret out the guilty parties. Towers testified that he had been informed that the plaintiff kept company with Chambers, Moss and Mishler–persons of bad character–Chambers and Mishler being supposed to be thieves, and Moss being in the habit of gambling and drinking. It was also proven by several witnesses that a few days before the burglaries were committed, on a Sunday, the plaintiff was seen in Cruger, a place about two miles from Eureka, in company with his brother William, (who was also a suspected character,) and Chambers and Mishner. Evidence was also adduced showing that the plaintiff had a bad character by report.

These were the principal facts relied upon as showing probable cause for the arrest of the plaintiff.

The jury returned a verdict for the defendants, and judgment was entered accordingly. The plaintiff thereupon, appealed, and assigns for error that the verdict was contrary to the law and evidence.

Messrs. HARPER & CASSELL, Messrs. INGERSOLL & MCCUNE, and Mr. S. D. PUTERBAUGH, for the appellant, insisted that the arrest was illegal; that under our statute an officer is not authorized to make an arrest out of his proper county without a warrant, and that in this case there was no reasonable ground of suspicion to justify any of the defendants. Counsel also contended that even if all the defendants had authority to make the arrest, it could only be for the purpose of taking the accused before a magistrate for examination. Citing Dodds et al. v. Bowen, 43 Ill. 95.

Messrs. BURNS & BARNES, for the appellees Stitt and Blair.

*2 An action will not lie against a peace officer for arresting a person, bona fide, on a charge of felony, without warrant, though it turn out that no felony was committed. So when one is suspected of receiving stolen goods, he may be so detained without warrant to answer to the charge, and the party arrested may be taken to prison till he can be put upon his examination, without first taking him before a magistrate. 1 Hilliard on Torts, 235; Samuel v. Payne, 1 Doug. 359; Rohan v. Swaine, 5 Cush. 281;Davis v. Russell, 2 Moore & Payne, 590; 3 Eng. Com. Law 190; 9 do 688; 12 do 735; 13 do 287; 15 do 618.

An officer may act upon information, not under oath, of his neighbors in whom he has confidence, and if he acts with the belief that the arrest is necessary and detains the felon a reasonable time for the purposes of fair investigation as to the charge, he is not liable for false imprisonment, and it is for the officer to judge of the necessity of an immediate arrest to prevent escape, and for the jury alone to say whether he had cause to suspect the party charged, guilty, and if he act in good faith he is not chargeable, whether the party arrested turn out to be guilty on examination or not. Rohan v. Swaine, 5 Cushing, 281; 1 Hale’s P. C. 587; Dane’s Abrid. 588; Bacon’s Ab. Constable (C.;) Samuel v. Payne, 1 Doug. 359;Beckworth v. Philby, 6 Barn. & Cress. 635.

The officer may, after arrest, discharge the prisoner without taking him before a magistrate. McClougan v. Clayton and Reding, 3 English Com. Law 190; 24 do 673.

Proof of reasonable suspicion of felony where a private person imprisons, goes in mitigation of damages, and where such person acts in good faith, nominal damages only should be allowed. 12 English Com. Law, 617.

Mr. JOHN CLARK, for the same appellees, in addition, cited 2 Hale’s Pleas of the Crown, 76, 80; 1 Russ on Crimes, 593, 595; Law Reporter, 169, 173, N. S. 6 Term R. 315; section 40 of the Criminal Code.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of trespass, for an assault and false imprisonment, and a verdict and judgment for the defendants. To reverse this judgment the plaintiff appeals, and makes the point, that the verdict was contrary to the law and the evidence, and a new trial should have been granted.

The facts show the arrest of the plaintiff, without any warrant, by private persons, in the county where he lived, and taken to another county, and there confined in jail in a filthy cell, and discharged without examination.

Writers on criminal law and proceedings say, that, in general, an arrest may be made in three ways: by warrant; by an officer without a warrant; by a private person without a warrant.

A warrant, under our law, is usually issued by a justice of the peace, on a complaint made to him, under oath, that a criminal offense has been committed in his county. The warrant for the arrest is usually directed to all sheriffs, coroners and constables within the State. If the criminal be arrested, he is to be proceeded against as provided by secs. 203-207 of the criminal code. Gross’ Stat. The execution of the warrant for the arrest is confined to the county in which it issues, except when the offender shall cross the line into an adjoining county the officer may pursue him into such adjoining county, and there make the arrest. Sec. 207 ib.

*3 The magistrate issuing the warrant may make an order on it authorizing a person (to be named in the warrant) to execute it, and he may execute it anywhere in the State, by apprehending and conveying the offender before the magistrate who issued the warrant, or before some other justice of the peace of the same county. Sec. 208.

The law enjoins upon all persons making an arrest to acquaint the party named in the warrant, either before or after his arrest, with the substance of the warrant, if requested. 1 Ch. Crim. Law, 51; 2 Hawkins’ Pleas of the Crown, Ch. 13, sec. 28.

After making the arrest, it is the duty of the officer to convey the party, as soon as possible, before the magistrate, according to the import of the warrant, (2 Hale’s Pleas of the Crown, 119) and in conveying him the officer should use no more restraint than is necessary to prevent his escape.

As to the arrest by an officer without a warrant, it is settled, that a justice of the peace may apprehend, or cause to be apprehended, by verbal order merely, any person committing a felony or breach of the peace in his presence. 1 Hale’s P. C. 86. But if it is committed in his absence, he must issue a warrant in due course of law to apprehend the offender. 1 Ch. Cr. Law, 24, 25. Sheriffs and coroners and constables may, by the common law, apprehend any felon within their county without warrant. 4 Bl. Com. 289; 1 Hale’s P. C. 587. In case of a felony actually committed, a constable may, upon probable suspicion, arrest the party; but if the suspicion does not arise in his own mind, he should inquire scrupulously into the causes of the suspicion, and he will be justified in making the arrest, should it afterwards appear that no felony had been committed, provided he had reasonable grounds to suspect the party arrested–such grounds as should influence the conduct of a prudent and cautious man under the circumstances. This by the common law; but under our statute it is made the duty of a constable, when any felony or breach of the peace is committed in his presence, forthwith to apprehend the person committing it, and bring him before some justice of the peace to be dealt with according to law. Gross’ Stat. 401, sec. 88.

In the case of Board v. Dodds et al., 43 Ill. 95, which was an action for an assault and false imprisonment, it was held, that a plea, intended as a justification by the officer making the arrest averring that the plaintiff was an idle person, and consorted with persons of known bad character, and that a larceny had been recently committed in the neighborhood, and that he had been informed the plaintiff was accessory to the crime, and that he believed, and had probable cause for believing, that he was guilty, and had, therefore, arrested him, and taken him before two justices of the peace, and had him examined on the charge, and that the defendant was a peace officer, would be a good plea of justification. To authorize an officer without warrant to arrest a person on suspicion that he is guilty of crime, there must be such circumstances of suspicion that the party arrested was guilty as renders it probable that the accused had committed the crime; and it was further said, a private person had no right to arrest on mere suspicion–that a mere suspicion of guilt does not authorize all persons, without a warrant, to make an arrest. To prevent breaches of the peace, and perhaps bloodshed, a private individual should not be justified unless a crime has been committed, and the person arrested is shown to be the guilty party. A constable, having reasonable ground to suspect a felony has been committed, is authorized to detain the suspected party until inquiry can be made by the proper authorities. Whether or not there was reasonable ground for suspicion, is a mixed question of law and fact–the circumstances to show it reasonable being the fact, but whether, admitting the facts to be true, they amount to a justification, being a question of law.

*4 As to an arrest by a private person, it is held, that any private person who is present when a felony is committed, is bound by law to arrest the felon, on pain of fine and imprisonment if he escape through his negligence. This is the common law. 2 Hawkins’ Pleas of the Crown, 74. Yet we should hardly consider, under our statute and usual practice in such cases, that this obligation rests upon a private individual, though it would be, doubtless, his duty to attempt an arrest if one could be made without injury or peril to himself. Our criminal code provides that every male person above eighteen years of age must go to the assistance of an officer having criminal process for the arrest of an offender, and to aid in retaking a person who, after having been arrested or confined, may have escaped, and to aid in preventing any breach of the peace or the commission of any criminal offense, when lawfully required by the officer, or by any judge, justice of the peace, or other officer concerned in the administration of justice, under penalties for his refusal, in any sum not less than ten dollars, nor more than fifty dollars. Gross’ Stat. 211, sec. 140.

When a private person has apprehended another for felony, he may either deliver him into the hands of a constable, or he may carry him to any jail in the county; but the safest course is to cause him, so soon as convenience will permit, to be brought before some justice of the peace, by whom the prisoner may be examined and bailed, or committed to prison. Ib.

The plea in this case was, not guilty, with leave to give special matter in evidence; and it was proved, by Harvey, Parker and Murray, that shortly before the arrest of plaintiff, several burglaries had been committed by some one or more persons, near Eureka, and valuable property stolen, and that plaintiff had been seen in Crugers, with his brother William, Perry Chambers and Mishler, noted and suspected characters, the Sunday preceding the burglaries, and evidence was adduced showing the plaintiff had a bad character by report, though none was adduced against him as a man of truth and veracity. We do not think that single circumstance afforded probable ground for his arrest by the defendants, neither of them having a warrant, and neither of them an officer of the county authorized to make an arrest without a warrant.

What occurred after the arrest, transporting him to a foreign county and there confining him in a filthy cell, and discharging him without an examination, the arrest being unjustifiable, were proper to be considered by the jury in estimating the damages. The conduct of Towers, who had no more official authority in Woodford county than any private citizen of another State, can not be justified on any principle of law with which we are familiar. Being a police constable in Peoria, he usurped authority in Woodford, and ought to be punished for it. Detectives, as they are called, have no more right to disregard the law than any other person, nor, under the guise of authority, play “their fantastic tricks.”

*5 We are of opinion, the arrest of the plaintiff was illegal, and the verdict contrary to the law and the evidence. And if the arrest was legal, they did not proceed according to law, and take him before a magistrate for examination, but conveyed him to another county, and there imprisoned him in the county jail, in a filthy cell, thus invading one of the dearest and most sacred rights of the citizen, secured to him by the great charter of our land. Failing to take him before a magistrate of the county where arrested, hand-cuffing him, transporting him against his will to another county, and there imprisoning him in a filthy cell, is such evidence of malice, there being no probable cause to suspect him of guilty participation in crime, as to require the jury to award to him some damages.

The judgment must be reversed and the cause remanded, that a new trial may be had.

Judgment reversed.

Ill. 1869.

Kindred v. Stitt

51 Ill. 401, 1869 WL 5352 (Ill.)

END OF DOCUMENT

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill.,Sep Term 1869)

History
Direct History
=> 1 Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill. Sep Term 1869)

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill., Sep Term 1869)

Date of Printing: Jul 31, 2010

KEYCITE

Kindred v. Stitt, 51 Ill. 401, 1869 WL 5352 (Ill. Sep Term 1869)

Citing References
Positive Cases (U.S.A.)
Cited
1 People v. Galan, 893 N.E.2d 597, 624, 323 Ill.Dec. 325, 352, 229 Ill.2d 484, 531 (Ill. Jul 24, 2008) (NO. 103845) (in dissent)
2 Lindquist v. Friedman’s, Inc., 8 N.E.2d 625, 627, 366 Ill. 232, 237 (Ill. Apr 16, 1937) (NO. 23914)
3 People v. Poncher, 192 N.E. 732, 734, 358 Ill. 73, 78 (Ill. Oct 24, 1934) (NO. 22545)
4 People v. Humphreys, 187 N.E. 446, 448, 353 Ill. 340, 347 (Ill. Oct 21, 1933) (NO. 21935)
5 People v. Doody, 175 N.E. 436, 442, 343 Ill. 194, 205 (Ill. Feb 18, 1931) (NO. 20033)
6 People v. McGurn, 173 N.E. 754, 756+, 341 Ill. 632, 636+ (Ill. Dec 18, 1930) (NO. 20379)
7 People v. Scalisi, 154 N.E. 715, 721+, 324 Ill. 131, 146+ (Ill. Dec 23, 1926) (NO. 17745)
8 Enright v. Gibson, 76 N.E. 689, 691, 219 Ill. 550, 556 (Ill. Feb 21, 1906)
9 Krug v. Ward, 77 Ill. 603, 605, 1875 WL 8374, *2 (Ill. Jun Term 1875)
10 People v. Marino, 400 N.E.2d 491, 494, 80 Ill.App.3d 657, 661, 36 Ill.Dec. 71, 74 (Ill.App. 2 Dist. Jan 22, 1980) (NO. 77-516)
11 People v. Royer, 242 N.E.2d 288, 290, 101 Ill.App.2d 44, 48 (Ill.App. 5 Dist. Nov 01, 1968) (NO. 68-57M)
12 People v. Fischetti, 273 Ill.App. 215, 218, 1933 WL 2734, *2 (Ill.App. 1 Dist. Dec 29, 1933) (NO. 36665)
13 Winans v. Congress Hotel Co., 227 Ill.App. 276, 283, 1922 WL 2648, *3 (Ill.App. 1 Dist. Dec 11, 1922) (NO. 27768)
14 Siegel, Cooper & Co. v. Connor, 70 Ill.App. 116, 117+, 1897 WL 2435, *1+ (Ill.App. 1 Dist. May 06, 1897)
15 Sundmacher v. Block, 39 Ill.App. 553, 553+, 1890 WL 2493, *1+ (Ill.App. 3 Dist. Jun 12, 1891)
16 Tojo v. Illinois & St. Louis Bridge Co., 13 Ill.App. 589, 592, 1883 WL 10553, *2, 13 Bradw. 589, 589 (Ill.App. 4 Dist. Oct 10, 1883)
17 Scott v. Flowers, 84 N.W. 81, 84, 60 Neb. 675, 675 (Neb. Nov 08, 1900)
Mentioned
18 People v. Ford, 191 N.E. 315, 317, 356 Ill. 572, 576 (Ill. Jun 15, 1934) (NO. 22216)
19 People v. Macklin, 186 N.E. 531, 532, 353 Ill. 64, 67 (Ill. Jun 22, 1933) (NO. 21775)
20 People v. Durham, 390 N.E.2d 517, 518, 71 Ill.App.3d 725, 726, 28 Ill.Dec. 350, 351 (Ill.App. 5 Dist. May 16, 1979) (NO. 77-538)
21 People v. Carnivale, 315 N.E.2d 609, 613, 21 Ill.App.3d 780, 785 (Ill.App. 1 Dist. Aug 01, 1974) (NO. 57677, 57678, 57679, 57680, 57681, 57682, 57683, 57684, 57685)
22 People v. Coleman, 261 N.E.2d 705, 706, 127 Ill.App.2d 38, 42 (Ill.App. 1 Dist. Jun 15, 1970) (NO. 54343)
23 Lindquist v. Friedman’s, Inc., 1 N.E.2d 529, 532, 285 Ill.App. 71, 77 (Ill.App. 1 Dist. Apr 20, 1936) (NO. 38696)
24 Schramko v. Boston Store of Chicago, 243 Ill.App. 251, 257, 1927 WL 4009, *3 (Ill.App. 1 Dist. Feb 07, 1927) (NO. 31255)
25 Hight v. Naylor, 86 Ill.App. 508, 509+, 1899 WL 2524, *1+ (Ill.App. 3 Dist. Dec 13, 1899)
26 Miller v. Fano, 66 P. 183, 185, 134 Cal. 103, 109 (Cal. Sep 06, 1901) (NO. 817)
27 Ross v. Kohler, 174 S.W. 36, 40, 163 Ky. 583, 583, L.R.A. 1915D,621, 1915D,621 (Ky. Mar 17, 1915)
28 Rodgers v. Schroeder, 287 S.W. 861, 863, 220 Mo.App. 575, 575 (Mo.App. Sep 21, 1926) (NO. 19511)
29 State v. Nall, 404 S.E.2d 202, 206, 304 S.C. 332, 338 (S.C.App. Feb 25, 1991) (NO. 1613)
Secondary Sources (U.S.A.)
30 Information, belief, or suspicion as to commission of felony, as justification for arrest by private person without warrant, 133 A.L.R. 608 (1941)
31 Territorial extent of power to arrest under a warrant, 61 A.L.R. 377 (1929)
32 CRIMINAL LAW-AUTHORITY OF A PRIVATE PERSON TO ARREST WITHOUT A WARRANT, 8 Tex. L. Rev. 140, 141 (1929)
Court Documents
Appellate Court Documents (U.S.A.)
Appellate Briefs
33 Andre WALLACE, Plaintiff-Appellant, v. CHICAGO POLICE OFFICERS KRISTEN KATO and Eugene Roy, Defendants-Appellees., 2005 WL 5806902, *5806902+ (Appellate Brief) (7th Cir. Mar 2005) Brief of Defendants-Appellees (NO. 04-3949)
34 Andre WALLACE, Plaintiff-Appellant, v. CITY OF CHICAGO, and Chicago Police Officers Kristen Kato and Eugene Roy, Defendants-Appellees., 2004 WL 5402440, *5402440+ (Appellate Brief) (7th Cir. 2004) Brief and Short Appendix of Plaintiff-Appellant (NO. 04-3949)

An Analysis of the Draconian Application of Illinois' Eavesdropping Law 720 ILCS 5/14

This article has been used as a reference source at Wikipedia http://en.wikipedia.org/wiki/Telephone_recording_laws

Illinois, the Land of Lincoln, aptly put since Lincoln was a usurper and despot, is one of the most notorious States for corruption and rights abuse. The festering pustule that is Chicago infects the rest of the State’s bloodstream by virtue of its government sponsored criminal enterprise. Chicago’s ills affect the rest of Illinois for the laws written to remedy that bastion of corruption. This article discusses the Illinois Wiretapping Law found at 720 ILCS 5/14.

As an example, I used a case I am somewhat familiar with involving a man who requested a court reporter and was denied. He then informed a clerk of the court that he would bring his own recorder. The judge later questioned him about the use of a recorder, which he did not deny. That information was later used against him in charging 5 violations of the Illinois Wiretapping Law. The case I refer to can be found here.

First, some glaring violations of due process are evident. The article states:

Just after he walked through the courthouse door the next day, Allison says Crawford County Circuit Court Judge Kimbara Harrell asked him whether he had a tape recorder in his pocket. He said yes. Harrell then asked him if it was turned on. Allison said it was. Harrell then informed the defendant that he was in violation of the Illinois wiretapping law, which makes it a Class 1 felony to record someone without his consent. “You violated my right to privacy,” the judge said.

This appears as though the judge, Kimbra Harrell, was conducting a criminal investigation by questioning Allison about the possible commission of a crime. If there was evidence of a crime, why was Allison not arrested, supported by a sworn complaint by the judge? The questioning of Allison by Judge Harrell violated his right to silence since the judge was gathering information used to charge the commission of a crime. The judge had no reasonable suspicion other than that of the clerk who probably mentioned it to the judge. There was no criminal act taking place at the time, since yesterday had passed where the alleged violation occurred, and I see no evidence of the State possessing the actual recording. Allison is being charged based on his answers to Kimbrell’s questions which were unlawful. This does not speak to any provision of the wiretapping law, but speaks to entrapment and violation of due process.

What is interesting is Harrell is claiming a violation of her privacy rights as a complainant. I’m sure there are microphones and cameras in her courtroom, as with most courtrooms, so what part of her privacy was violated by Mr. Allison? I spoke with Mr. Allison, and the details of his experience are quite amazing. It seems as though the charges facing him are retaliatory and contrived, if not meeting the definition of entrapment.

Quoting from Illinois Practice Series, Illinois Civil Trial Procedure by Michael J. Kaufman, Professor Of Law, Loyola University Chicago School Of Law. Part VI. Evidence § 22:11. Recorded conversations:

The Illinois Eavesdropping Statute expressly prohibits the recording of a conversation absent consent of “all parties” to the conversation.(1) Material obtained in violation of this statute is not admissible at trial.(2)Notwithstanding the plain language of this statute, the Illinois courts, somewhat inexplicably, have interpreted the statute to prohibit eavesdropping only where no party to the conversation consents.(3) So long as one party to a conversation consents to recording that conversation, the recording is not violative of the statute. Hence, a party who secretly records its conversations with a potential adversary without that adversary’s consent does not violate the statute. The secret recording presumably would be admissible into evidence.
(1) 720 ILCS 5/14-2.
(2) 720 ILCS 5/14-2.
See also Graham, Cleary and Graham’s Handbook of Illinois Evidence at 264 (8th ed. 2006).
(3) See, e.g., People v. Richardson, 60 Ill. 2d 189, 328 N.E.2d 260 (1975). No eavesdropping was found when an informant consented to having his telephone conversation with the defendant recorded by the State’s Attorney’s office.

Is it not interesting how the courts have, “somewhat inexplicably” held that recordings where only one party was taping or had consented did not violate the statute? Knowing this, and the prosecutors do, they still insist on pursuing charges against selected targets vindictively; more likely than not out of retaliation or intimidation for their audacity in confronting government.

Another interesting case is:

183 Ill.App3d 562 539 N.E.2d 234 131 Ill.Dec 881
David A. BENDER, Plaintiff-Appellant,
v.
The BOARD OF FIRE AND POLICE COMMISSIONERS OF the VILLAGE OF DOLTON, Illinois, Commissioner/Chairman Joseph Chantigney, Commissioner/Secretary Sam Ingala, Commissioner Robert F. Byrnes, and Commissioner William Hespel, and George Pfotenhauer, Chief of Police of the Village of Dolton, Illinois, Defendants-Appellees.
In this case, a police officer brought a complaint for judicial review of the final administrative decision of the board of fire and police commissioners to discharge him from his position. The Circuit Court, Cook County, George M. Marovich, J., affirmed, and police officer appealed. The Appellate Court, Freeman, P.J., held that police officer’s use of a pocket recorder to record a conver-sation he had with the chief of police was not eaves-dropping.

On March 3, 1986, plaintiff, who was on duty, had a conversation with the Dolton Chief of Police, George Pfotenhauer, in the latter’s office at the Dolton police station. At that time, Pfotenhauer asked plaintiff some questions regarding his overtime and his ownership or operation of a security company. During their con-versation, a cassette tape recorder which plaintiff had in his vest pocket made a beeping sound. According to Pfotenhauer, he then asked plaintiff whether he was recording their conversation. Plaintiff admitted he was and Pfotenhauer demanded that plaintiff surrender the tape. Plaintiff contended at the administrative hearing that he had not recorded his conversation with Pfotenhauer. However, on appeal, he does not dispute that he did so or that he refused Pfotenhauer’s order to surrender the tape.

Quoting from the decision:

On appeal, plaintiff contends that, assuming that he did record the conversation with Pfotenhauer, such conduct did not constitute eavesdropping as a matter of law. In support, he cites People v. Klingenberg (1975), 34 Ill.App.3d 705, 339 N.E.2d 456. Klingenberg held that the videotaping of an interrogation after a drunk driving arrest did not violate the eavesdropping statute despite the fact that the defendant did not consent to it. The court reasoned that, since the defendant made his statements directly to the police and intended that they hear his statements, he had no expectation of privacy therein, there was no interception of a private communication, and the recording was not intended to obtain otherwise inaccessible information. Klingenberg, 34 Ill.App.3d at 708, 339 N.E.2d 456.

Plaintiff relies on Klingenberg to argue that defendant’s decision was against the manifest weight of the evidence. However, we find that, if applicable here, Klingenberg requires a conclusion that defendant’s deci-sion was contrary to the law.

Defendant does not directly respond to plaintiff’s reliance on Klingenberg. Indirectly doing so, it argues that, assuming plaintiff did not commit the offense of eavesdropping, there is, nonetheless, a reasonable expectation of privacy in a superior’s conversation with an employee that prohibits the repetition of their communications. This is especially true, defendant argues, in law enforcement, where confidential 565 matters are routinely discussed and expected to remain undisclosed. Given that they occurred in the office of the chief of police while plaintiff was on duty, defendant concludes, there must be an expectation of privacy accorded the communications between plaintiff and Pfotenhauer.

We find defendant’s attempt to distinguish Klingen-berg unavailing. Because we conclude that Klingen-berg controls this case, we need not address whether Beardsley is retroactively applicable to it.

Defendant’s defense of plaintiff’s discharge on the ground that, even assuming he did not commit eavesdropping, he nonetheless violated Pfotenhauer’s reasonable expectation of privacy in their conversa-tion is flawed for several reasons.

The first is that, if plaintiff did not commit eaves-dropping, he did not violate any criminal law of the State of Illinois. If he did not violate any criminal law, he did not violate article 4, section 2.1 of the rules and regulations of the Dolton police department. If he did not violate that provision, there was no basis for charging a violation of article 4, section 2.2. thereof. Therefore, he should not have been discharged.

The second reason defendant’s argument is flawed is that plaintiff was charged with committing the criminal offense of eavesdropping and not merely with violating or breaching a superior’s reasonable expectation of privacy in confidential communications.

The third reason the argument is flawed is that, while conceding that plaintiff did not commit eavesdrop-ping, it asserts that he committed what is the basis of that offense, i.e., a breach of privacy. The generally accepted definition of eavesdropping is “ ‘to listen secretly to what is said in private.’ ” ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 707-08, 339 N.E.2d 456.) The statute prohibiting eavesdropping is thus intended to protect the privacy of the individual. ( Klingenberg, 34 Ill.App.3d at 707, 339 N.E.2d 456.) Defendant, therefore, cannot logically concede that plaintiff did not commit eavesdropping and simultaneously assert that he violated Pfotenhauer’s privacy.

On a more fundamental level, defendant’s argument evinces a misunderstanding of the privacy interest which the prohibition against eavesdropping protects. As we read the case, Klingenberg was based, at bottom, on the fact that the same individuals to whom the defendant directed his statements and by whom he intended that they be heard recorded them. Klingenberg thus stands for the general principle that no eavesdropping occurs where an individual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements, because the declarant does not intend to keep his statements private vis-a-vis that individual.

Although we have found it unnecessary to decide whether Beardsley is retroactively applicable here, Beardsley is nonetheless noteworthy because it relies on and discusses Lopez v. United States (1963), 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, which the Klingenberg court cited in holding that no eaves-dropping occurs absent interception of a communication intended by the declarant to be private. ( People v. Klingenberg (1975), 34 Ill.App.3d 705, 708, 339 N.E.2d 456.) Lopez involved a revenue agent’s recording of a bribery attempt with a pocket recorder. In rejecting the defendant’s fourth amendment challenge to the admissibility of the recording, the U.S. Supreme Court concluded that the government did not use the recorder to listen in on conversations it could not otherwise have heard, but only to obtain the most reliable evidence of a conversation which involved a government agent and which he was therefore fully entitled to disclose. People v. Beardsley (1986), 115 Ill.2d 47, 55-56, 503 N.E.2d 346.

Like the police officers in Klingenberg and the revenue agent in Lopez, plaintiff did not use his pocket recorder to listen in on a conversation he could not otherwise have heard. As such, he did not commit eavesdropping in recording his conversation with Pfotenhauer. It therefore follows, a fortiori, that plaintiff did not violate article 4, section 2.1 or section 2.2. of the rules and regulations of the Dolton Police Department. With regard to the latter, the only legitimate basis which Pfotenhauer could have for ordering plaintiff to surrender the tape was his alleged violation of the eavesdropping statute. As he committed no such violation, Pfotenhauer had no right to the tape.

I will quote from one more case here before elaborating more on the language and applicability of the statute itself. This case is People v. Jansen, App. 5 Dist.1990, 203 Ill. App. 3d 985; 561 N.E.2d 312; 1990 Ill. App. Again, with this case, the court relied upon the reasoning in People v. Beardsley (1985), 139 Ill. App. 3d 819, 487 N.E.2d 731. A copy of that case can be downloaded here.

“The Beardsley court held that the ‘eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.’ ( Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) The court based its holding on the fact that a party to the conversation cannot be accused of listening secretly to what is said in private or of surreptitious interception of a private conversation, because that party is competent to testify concerning the contents of the conversation, and could have taken notes or transcribed the conversation, rather than recording it. ( Beardsley, 115 Ill. 2d at 58-59, 503 N.E.2d at 352.)”

Speaking to Mr. Allison’s case, specifically, given the history of the police, judges, and prosecutors in Bridgeport, I believe Mr. Allison has an affirmative defense under 720 ILCS 5/14‑3(i) which reads:

(i) Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording;

In anticipation of further criminal conduct on the part of the Judge Harrell, Mr. Allison was preparing to document violations of law. His recording would therefore not be a violation of State statute since he was anticipating criminal conduct by Judge Harrell. I have yet to see the charging information, but I believe it will not stand the tests outlined in the above cases.

Furthermore, given the plain language of the statute, it would appear that the State of Illinois is itself guilty of this offense given that the Supreme Court of Illinois is the authority for determining who and how recordings of judicial proceedings are to be done.

From the Illinois Supreme Court website here http://www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#46

Rule 46. Official Record of Court Proceedings

(a) Taking of the Record. The record of court proceedings may be taken by stenographic means or by an electronic recording system approved by the Supreme Court. All transcripts prepared as the official record of court proceedings shall be prepared pursuant to applicable supreme court rules.

(b) Security of the Record. The confidentiality of court proceedings and the retention and safekeeping of notes and electronic recordings shall be maintained consistent with standards established by the Supreme Court through its Administrative Office.

(c) Court Reporting Personnel. For purposes of this rule and other supreme court rules regarding the official record, “court reporting personnel” shall include:

(1) court reporters as defined by the Court Reporters Act (705 ILCS 70/1);

(2) court personnel who have fulfilled the training and certification standards promulgated by the Supreme Court and consistent with paragraph (d) of this rule; and

(3) certified shorthand reporters hired through an agency or as an independent contractor by a private party or parties to take a stenographic record in court proceedings.

(d) Electronic Recording of Court Proceedings.

(1) The Supreme Court shall provide for and prescribe the types of electronic recording equipment that may be used in the circuit courts. Those jurisdictions with electronic recording systems installed are required to properly utilize and staff such equipment in order to produce a reliable verbatim record of the proceedings.

(2) Court reporting personnel, including court reporters as defined by the Court Reporters Act (705 ILCS 70/1), must successfully complete training and certification designed to qualify them to operate electronic recording equipment, prepare transcripts from such proceedings, and certify the record on appeal. Such training and certification shall be consistent with standards established by the Supreme Court, through its Administrative Office.

(3) Electronic recordings of proceedings shall remain under the control of the court having custody of them. The chief judges shall provide for the storage and safekeeping of such recordings consistent with the standards referenced in paragraph (b) of this rule.

(4) The Administrative Office shall monitor the operation of electronic recording equipment, the security of the electronic recordings, and the training of court reporting personnel to assure that each county is in compliance with this rule.

Adopted December 13, 2005, effective immediately.

 

When compared with the language of the statute here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+14&ActID=1876&ChapterID=53&SeqStart=30900000&SeqEnd=32700000

(720 ILCS 5/14‑4) (from Ch. 38, par. 14‑4)     Sec. 14‑4. Sentence.

(a) Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.

(b) The eavesdropping of an oral conversation or an electronic communication between any law enforcement officer, State’s Attorney, Assistant State’s Attorney, the Attorney General, Assistant Attorney General, or a judge, while in the performance of his or her official duties, if not authorized by this Article or proper court order, is a Class 1 felony. (Source: P.A. 91‑357, eff. 7‑29‑99; 91‑657, eff. 1‑1‑00.)

It appears that under direction of Supreme Court Rule 46, the State is committing an offense by recording judges and State’s Attorneys in the courtroom. Remember, the language of the statute reads:

(720 ILCS 5/14‑2) (from Ch. 38, par. 14‑2)     Sec. 14‑2. Elements of the offense; affirmative defense.

(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so

(A) with the consent of all of the parties to such conversation or electronic communication or

(B) in accordance with Article 108A or Article 108B of the “Code of Criminal Procedure of 1963”, approved August 14, 1963, as amended;

It is an affirmative defense when:

(b) It is an affirmative defense to a charge brought under this Article relating to the interception of a privileged communication that the person charged:

1. was a law enforcement officer acting pursuant to an order of interception, entered pursuant to Section 108A‑1 or 108B‑5 of the Code of Criminal Procedure of 1963; and

2. at the time the communication was intercepted, the officer was unaware that the communication was privileged; and

3. stopped the interception within a reasonable time after discovering that the communication was privileged; and

4. did not disclose the contents of the communication.

Therefore, absent any of the preceding exceptions and affirmative defenses, it is illegal to record court proceedings absent consent from all parties, including defendants, and even harsher penalties are imposed when recording judges and State’s Attorneys. Maybe it would be wise for someone to apply for injunctive relief from the courts for their not consenting to being recorded in court. The statute makes an allowance for this:

(720 ILCS 5/14‑6) (from Ch. 38, par. 14‑6)     Sec. 14‑6. Civil remedies to injured parties. (1) Any or all parties to any conversation upon which eavesdropping is practiced contrary to this Article shall be entitled to the following remedies:

(a) To an injunction by the circuit court prohibiting further eavesdropping by the eavesdropper and by or on behalf of his principal

In the mean-time, lets move on to the Legislative debates regarding the amendment to this statute which they hoped to circumvent the Appellate Court’s holding in Beardsley.

Looking now to legislative intent. What better place to look at what the legislators who wrote the law intended than the debates on the Bill. This information came from the Illinois Legislature’s Website.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 57th Legislative Day May 21, 1993

PRESIDING OFFICER: (SENATOR WATSON)
House Bill 1787. Senator Barkhausen. Read the bill, Madam Secretary.

ACTING SECRETARY HAWKER:
House Bill 1787.
(Secretary reads title of bill)
3rd Reading of the bill.

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN;
Thank you, Mr. President. House Bill 1787 does two things. First, it restores the requirement that all parties consent to a — to a recording of conversations, which requirement was negated
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by the Illinois Supreme Court decision in People vs. Beardsley. Second, the bill was amended in committee to make law enforcement use of consensual eavesdropping consistent with laws that apply in forty other states and are used by the Federal Government by deleting a court order requirement in a very limited set of circumstances. The police must notify the State’s attorney of the investigation, and the recording must be necessary to protect officer safety and then only in the investigation of a felony drug offense, forcible felony or gang-related felony. The recording may not be used in any proceeding except where a party to the conversation recorded was injured or killed. Most states do not have any court order requirement on these — in these cases; so this bill is a very modest step to put Illinois in line with the practices of a number of other states – most other states. In addition, I should say the discussions are ongoing between the House sponsor and the State Police, who were the proponents of the amendment, and the bar associations and our staff, on this amended provision. A tentative agreement has been reached that will be the basis of a possible conference committee report that will move the objections that some of the bar association representatives have had to the second part of the bill. I urge your support.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no — no discussion — Senator Molaro.

SENATOR MOLARO:
Yes, thank you Mr. President, Ladies and Gentlemen of the Senate. Senator Barkhausen just touched on — said it’s going to conference committee, and I do believe that’s true, but I must just point out, they’re saying this for the safety of the officers. Well, it certainly makes sense that anytime anybody who’s working under cover or goes into a position where their life is in jeopardy or their safety is in jeopardy, well it certainly makes sense to me that the people on the outside in the cars,
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while this officer’s in the inside, should know what’s going on. That certainly makes sense. However, when I asked the question in committee — well, if all they need is to know to have the headset on and listen to these conversations so they know when it might be – a tough situation and react to it for the officer’s safety, I said that’s terrific. But why change the eavesdropping law? Why do we have to record this, and why can we then use it as evidence in — in a — in an upcoming trial if there is one? And they said, “Well, because we do.” Well, that’s why we have the objections. Safety is one thing; taking away the Fourth Amendment is another thing. And I think it’s dangerous, in the interests of safety and law and order, that every time there’s a bill like this, we want to be tough on crime, that we just blindly vote Yes, and we’re picking away and chopping away at the Fourth Amendment. And I — and I think it’s dangerous. Thank you.

PRESIDING OFFICER: (SENATOR WATSON)
Seeing no further discussion, Senator Barkhausen, to close. I beg your pardon. Senator Hall.

SENATOR HALL:
Will the sponsor yield for a question?

PRESIDING OFFICER: (SENATOR WATSON)
The sponsor will yield, Senator Hall.

SENATOR HALL:
Why is the Cook County Public Defender opposed to this? PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Not having been a party to conversations with the Public Defender, I — I’m not sure, Senator Hall. They have been historically, philosophically opposed to most anything that had to do with eavesdropping.

PRESIDING OFFICER: (SENATOR WATSON)
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Senator Hall.

SENATOR HALL:
According to my notes it says the ISBA, the Cook County Public Defenders, say they believe the tapes should not be admissible at a trial. Are these tapes going to be admissible at a trial?

PRESIDING OFFICER: (SENATOR WATSON)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Yeah. The — the — I’m told that the Public Defender has been involved in — in some of these discussions, and has been participating on efforts to arrive at a compromise that will be embodied in the conference committee report that we anticipate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Fawell.

SENATOR FAWELL:
Thank you — thank you very much. Now, I understand what the sponsor is trying to do. Obviously, he’s trying to be very tough on — on — on drugs and — and all this kind of business. But I’m going to tell you, I’ve — I’ve had some acquaintance with some small town policemen who, frankly, go a little overboard sometimes when they start looking at the rights of citizens versus trying to find big drug — big operations, especially in these small towns. I’ve known of — of small town police that have taken hatchets and — and broken down doors, in — in one of my towns, in the middle of the night, and unfortunately, they had the wrong house. I know of another case where they tried to confiscate a — a plane in DuPage Airport, and they had the wrong plane. They almost killed the pilot in the process of trying to stop the plane from — who was in the process of taking off and landing and trying to become a — a pilot. You know, I just think sometimes we’re just going too darn far with some of these things. I think the speaker on the other side has a — has a good point.
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You know, we have a — a Constitution and a Bill of Rights for a reason. I think this bill goes way too far, and we ought to stop and think what we’re doing.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Dudycz.

SENATOR DUDYCZ:
Well, thank you — thank you, Mr. President. I’d just like to share a few facts with Illinois’ consensual electronic surveillance legislation, where currently the Illinois court order requirement for consensual electronic surveillance endangers police officers. It impairs investigations of — of gangs, of drug trafficking and other crimes, and it also unnecessarily overburdens prosecutors in the court system. Illinois, of all the fifty states, is the most restrictive in the whole United States of America in respect to consensual electronic surveillance. There are over forty states in the federal — and the Federal Government, which allow law enforcement to utilize consensual electronic surveillance as an investigative tool without a court order, not “with”, but “without” a court order. Of the remaining states, the restrictions placed upon law enforcement are limited. And none of them, of the remaining states, are as restrictive or as severe as what we have in Illinois. A few more facts, Ladies and Gentlemen. Police must make…

PRESIDING OFFICER: (SENATOR WATSON)
Could we have some order, please? Thank you.

SENATOR DUDYCZ:
Police must make application to a court showing probable cause for a felony. Well, in — in Illinois, also, for your information, should the application made by the police officers would be denied, the police officer must notify the suspect in writing within ninety days that an attempt was made – not that it
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was completed, but an attempt was made – to obtain an order. Also, it compromises the investigation of the law enforcement community and possibly the safety of the undercover officers that are out there protecting us. And in Illinois, police are limited to ten days in which to conduct a court-authorized consensual surveillance, and once the surveillance has been conducted, in Illinois, the police are required to notify the suspect within ninety days. I — I disagree with Senator Fawell. This is — this bill is not going too far. Some would say that this — bill does not go far enough, but I would say, it’s a good — a good bill to begin with, and I would seek the affirmative support of everybody in the Senate.

PRESIDING OFFICER: (SENATOR WATSON)
Further discussion? Senator Berman. Senator Berman.

SENATOR BERMAN:
Thank you, Mr. President. I rise in opposition of this bill. If you look at this bill, this is a blank check for any police officer or investigator to come in and wiretap your phones, your constituent phones, and they are off the hook. They can give any excuse they want. They were doing some investigation for some idea or other. When Senator — Dudycz says that Illinois is the most restrictive, he may say that in a critical way. I’m glad to hear that, in a very proud way. We have some protection for our citizens regarding eavesdropping, and 1 think that that should be a — a point of law in Illinois that we should all go home and be very proud of. Citizens that are not charged with crimes have a degree of private conduct, private conversation, that we, as lawmakers, respect. The way — best way to continue to respect that private conversations of our voters is to vote No.

PRESIDING OFFICER: (SENATOR WATSON)
No further discussion? Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
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Let me say a couple of things in — in closing, Mr. President. First, I think it’s important to — to respond immediately to the comments made by the prior speaker. This bill has absolutely nothing to do with authorization to conduct wiretaps. The distinction between wiretaps and nonconsensual eavesdropping needs to be understood. Wiretapping involves overhearing a conversation between two individuals, neither of whom is a law enforcement official, and this has nothing to do with the subject of — the circumstances under which one can obtain authorization to overhear a conversation between two unrelated parties. Consensual or nonconsensual eavesdropping, on the other hand, has to do with — with recording, if you will, and under what circumstances, conversation in which one of the parties is a law enforcement official, and that’s what we’re talking about here. And what this bill in its current form would permit is — is the use of consensual eavesdropping; that is, a conversation being in which one of the — one of the members is — is a law enforcement official, to permit that to be overheard by another police officer, so that they might go to that officer’s rescue if he or she gets into trouble. Now, that conversation could be — could be recorded and a recording of that conversation could be used, as the bill is now written, only where an — an individual is either injured or killed at the time that conversation is recorded. Now, as I said, this is going back to the House. It’s anticipated that there will be a non-concurrence in the amendment for the purposes of a conference committee, in which, as I also said, there is already tentative agreement with the bar associations. Most of the individuals, as you know, from the bar association that were involved in these types of issues are criminal defense lawyers. So, if what we’re talking about here will ultimately be something that they agree to, then I submit to you that this is not at all objectionable, and it’s at least a step in the right direction,
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from the standpoint of law enforcement. I ask for your support.

PRESIDENT PHILIP:
All right. The question is, shall House Bill 1787 pass. Those in favor will signify by saying Aye. Those opposed, Nay. The voting is open. Have you all voted who wish? Have you all voted who wish? Take the record. On the question, there are 35 Ayes, 21 Nays, 2 voting Present. House Bill 1787, having received the required constitutional majority, is declared passed.

STATE OF ILLINOIS 88TH GENERAL ASSEMBLY REGULAR SESSION SENATE TRANSCRIPT 69th Legislative Day June 29, 1993

Committee Report No. 1, House Bill 1787.

Madam Secretary, do we have a file — a Conference Committee Report on House Bill 1787?

ACTING SECRETARY HAWKER:
First Conference Committee Report on House Bill 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Thank you, Mr. President and Members. The Conference Committee Report on House Bill 1787 is fairly close to the form in which it was previously approved by the Senate. The subject of the bill is consensual eavesdropping, meaning a — a conversation in which one of the parties…

PRESIDING OFFICER: (SENATOR DUDYCZ)
Pardon me, Senator Barkhausen.

SENATOR BARKHAUSEN:
…one of the parties consents to the conversation – in this case, a law enforcement official. The bill allows this conversation to take place without court approval in order, and in those situations where it is necessary, to protect an undercover officer conducting an investigation. Furthermore, the — the bill allows a limited form of admissibility of the content of a conversation, but only in those situations where a party to the recorded conversation is killed or suffers great bodily harm, or
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for the purpose of the direct impeachment of a witness. There are, in addition, certain bookkeeping and notice requirements that would be required of those recording such conversations. The bill is a product of a compromise between the Illinois State Police, who originally brought it to us, and the Illinois State Bar Association. I should note that it puts Illinois into the mainstream of some forty-eight other states that allow consensual eavesdropping without a court order and — and with full admissibility. This, I emphasize, only allows admissibility of such recordings under very limited circumstances. I ask for your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any discussion? Senator Molaro.

SENATOR MOLARO:
Yes. Thank you, Mr. President, Ladies and Gentlemen of the Senate. What we have here — if you recall this bill, this is the bill where sometimes during the course of an investigation – and why this is being brought up – you would have State troopers or undercover officers being put in a position where their safety may be in jeopardy. So what they want to do is, when they go and they’re undercover, or they’re going to be at some buy or some bust and they’re going to be dealing with these gang members or drug dealers, they want to be able to have a device and eavesdrop on conversations they’re having with these drug dealers. And the reason they want the device, so the team that’s outside of this area, if something is going down that the safety of the officers is in jeopardy, they would be able to go in and supposedly save the officers. Well, that’s terrific, and that’s noble, and that’s a great idea. And it should be there. So we’re going to make an exception to the Eavesdropping Law. In Illinois right now you either have to have both parties’ consent or you need a court order. What we’re going to do is make an exception and say, since
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of course the drug dealers are never going to okay recording their conversation, we’re going to have an exception. If the police officer or undercover agent can wear the device, he does not need a court order, and he will not be guilty of the — violating the Eavesdropping Statute. And that’s terrific. But what this amendment says – and it goes a little further – and what it says is that any recording derived as a result of this exception — now, they’re not only going to wear it so the police officers outside can hear it; they’re going to record it now. And it says any recording derived as a result of this exception shall be inadmissible in any proceeding, except where a party present during such recording is injured or killed. Now, if you’re going to make an exception, and you’re going to allow the recording to be used as evidence – and I don’t see why we’re going to use this recording as evidence if we’re only allowing the eavesdropping for the safety of officers – why we’re now going to make it admissible if the party’s injured. In other words, if you’re going to have a right of privacy and you’re going to have a Fourth Amendment, either you’re going to need a court order or you don’t. You can’t say we’re going to make it admissible because someone got hurt. There’s no correlation. There’s no logic to it. It doesn’t make any sense. Either it’s admissible or it’s not. Either we’re going to violate the Fourth Amendment or we’re not. Either we’re going to chip away at it or not. To come up and say that it’s not admissible unless someone gets hurt – there’s no logic to it. What I think we’re having is, we’re going to have an end run to chip away at the Fourth Amendment and say it’s officer safety issue. The officer can wear the device. He can have his men outside. There is no reason to record it, and there is no reason whatsoever to make it admissible. Thank you.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Any further discussion? Senator Palmer.
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SENATOR PALMER:
Thank you, Mr. President. I want to follow up on Senator Molaro’s line of thinking. As I read my analysis, there are some other disturbing factors in here. And correct me if I’m wrong, Senator Barkhausen, but as I read this, it says that the Director of the Department of State Police shall issue regulations. And I would wonder: Is that the only check that we have on what I consider coming close to the wind on violating the Fourth Amendment? Secondly, it says “any private oral communication”. Does that mean that if someone is in a room with a suspected person and unwittingly is part of a conversation, that that innocent bystander’s conversation also becomes part of this record? And finally, again, this question of officer safety. If that is the only purpose of this bill, why will this written record of the interception or the recording be kept for ten years, and who is the custodian of that tape for those ten years, and does the person who has been recorded know that such information has been kept for ten years?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Senator — Senator Palmer, it’s — it’s been pointed out to me that the — that the regulations are basically consistent with current law and practice, and furthermore, at — really at the behest of those negotiating on behalf of the State Bar Association, the — the bill, in its current form now, requires the bookkeeping and notice requirements that are similar to nonconsensual eavesdropping, so that defendants can determine if proper procedures are being followed.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Palmer.

SENATOR PALMER:
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Thank you. I suggest, though, that that is after the fact – what’s done with the tape. That does not answer the question ahead of time: that we are sailing very close to the wind, as far as I’m concerned, in a Fourth Amendment right of not being recorded in such a way. I think- this is a very, very dangerous precedent to set.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. Will the sponsor yield?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Sponsor indicates he will yield. Senator Hendon.

SENATOR HENDON:
Senator Barkhausen, I see — I have just a few questions. It says here that the recordings will only be done if a officer’s life is in jeopardy. Isn’t an officer’s life always in jeopardy out there on the streets?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
This only applies to drug investigations and forcible felonies.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Can — will you name the — the long list of enforcible <sic> felonies for this Body?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAtJSEN:
We can probably, if you’re interested, give you a cite to -Section of Chapter 38 defining the forcible felonies.
Page 27

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
My question is, Senator: How many felonies fall into that category? And — and the reason why is we need to know — everyone in this Chamber needs to know how wide-ranging this use of recording devices. And I’m all for protecting police officers’ lives, but I saw — I read in the paper just the other day where another officer was killed stopping someone for a traffic violation. So a officer’s life is always in jeopardy. So we need to know exactly how far-reaching this clear violation, in my opinion, of the Fourth Amendment actually is.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BARKHAUSEN:
Investigation of a traffic violation would not be one of them. There are twelve that are enumerated, and then it — the ones you would pretty well assume are included, obviously including murder, kidnapping and the like, and then there’s sort of a catchall phrase at the end: resulting in great bodily harm or permanent disability or disfigurement.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
Thank you, Mr. Chairman. I have in front of me Section 5-28 <sic> (5/2-8) and describes forcible felony: treason, first degree murder, second degree murder, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, arson, kidnapping, aggravated battery resulting in great bodily harm or permanent disability, and on and on and on and on and on. So it’s practically everything, including burglary and any — any old thing. And I’m just saying that this is far — far too
Page 28

outreaching here. And my other question: Why in the world would the records be held for ten years if it was simply there to protect the officer? That officer may be retired and came to the State Senate in ten years.

PRESIDING OFFICER: (SENATOR DUDYCZ)

Senator Barkhausen.

SENATOR BARKHAUSEN:
Mr. President, I’m glad to try to answer these questions. I mean, bottom line: If people are more interested in the — in the rights of criminal defendants than they are in police officers investigating dangerous felonies, don’t vote for the bill. I mean, the bill is supported by the State Bar Association, which, in my experience, after thirteen years as a Member of the Judiciary Committee watching representatives of the bar associations come in and — and continually take position on behalf of criminal defendants and against the positions of prosecutors in this State, the fact that they are for this bill ought to tell us something.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hendon.

SENATOR HENDON:
I — I am personally offended by that, but I — I’m not going to let it bother me, because worse things have been said about me on this Floor. But I think that it is — it is a shame for you to stand there, Senator, and try to imply that people who are concerned about innocent people, who are simple bystanders who may simply be talking to someone that they didn’t even know was a drug dealer, or a burglar, or an arsonist or whatever, that they’re concerned about — about the criminal. We’re concerned about the innocent bystander. You, Senator, could be out there tomorrow. The Gentleman standing next to you — you don’t know what he does in his off-hours. You simply do not know. So anybody can be
Page 29

standing next to somebody in an innocent conversation and that person is under investigation for whatever reason – and I named the entire list here. And it is wrong for you to stand there and imply that those of us who are against this intrusion that — and against people that are innocently recorded and kept for ten years, that we are supporting criminals and against the police. I just want you to know, sir, that I happened to pass a — a lot of law-and-order legislation in the City Council, and have some here in this Chamber that were buried by the — the various chairmen of those committees, or Judiciary. So I am offended by your implication, sir. And what you need to look at is what happens to the innocent bystanders who have absolutely nothing to do with that particular criminal investigation. And I’d like for you to address that. What happens to the innocent people? It says here that the judge “may” – may – give them notification and “may” give them a copy of the tape, when it should say that the judge “shall” give any innocent bystander a copy of whatever was recorded to
them. Why doesn’t it say that the judge “shall” give them that information?

PRESIDING OFFICER: (SENATOR DUDYCZ)
…(microphone cutoff).. .assume that’s a rhetorical question, Senator Hendon. It’s a question. Senator Barkhausen. SENATOR BARKHAUSEN:
Let me, if I may — I know Senator Hawkinson has been waiting to speak. Maybe — I think his remarks will address answers to your question and some other points as well.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Hawkinson, to answer senator sermon’s question. Senator Hendon.

SENATOR HENDON:
Thank — thank you, Mr. Chairman, and I certainly have a great deal of respect for my aisle mate here, but I did not ask Senator
Page 30

Hawkinson the question; I asked the question to Senator Barkhausen – and it is his bill – and I want to know what is his opinion of why innocent people do not get a copy of the tape recording that they don’t even know exists of — of their conversation. They may not — that tape may allow them to know for the first time that that person is a criminal. Why can’t they get the copy of the tape?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen.

SENATOR BAREHAUSEN:
Section 14-3B provides that notice of interception or recording is — is given to the individual not later than a hundred and twenty days after the termination of interception or recording or immediately upon the initiation of criminal recedings — proceedings. So, you know, there is notice.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hendon.

SENATOR HENDON:
And — and, Mr. Chairman, I’m trying to be brief, but — but the sponsor is kind of skating around the issue here. Section (f) <sic> (b) says that a court “may in its discretion” – may – m-a-y – at its discretion – “make available to those persons or their attorneys for inspection those portions of the intercepted communications…” It says “may”. It does not say “shall”. And it says at the court’s discretion. I’m simply asking, why doesn’t it say that the court “shall” give those innocent people copies of that communication?

PRESIDING OFFICER: (SENATOR DUDYCZ)
Further discussion? Senator Hawkinson.

SENATOR HAWKINSON:
Thank you, Mr. President. Just a couple of points. I rise in support of the Conference Committee to House Bill 1787 for several
Page 31

reasons. One — one is a reason that, if I’ve listened carefully, has not been mentioned yet. There’s another important aspect to this bill, other than the one that’s been discussed. In Illinois, we have one of the strongest Eavesdropping Statutes in the nation. It goes far beyond the requirements of the Fourth Amendment to the Constitution or the Illinois Constitution, and that Eavesdropping Statute has made it an offense and prohibited one citizen from recording another citizen over the telephone, or otherwise, unless there’s consent of both parties. That goes far beyond what the Fourth Amendment requires, and that applies to all of us. A few years back the Illinois Supreme Court, in a — in a decision – the Beardsley decision – essentially overturned our own Statute and -and authorized citizens to start taping each other. This bill will revert that law back to what we intended it with our Eavesdropping Statute, so that citizens — private citizens will not be able to tape each other without consent. And that’s an extremely important part of this bill. It’s something that Senator Cullerton had in another piece of legislation. And this will make our law consistent again, and actually is more protective of our rights of privacy than is the current state of the law in Illinois. Secondly, on the part of the bill that has had the discussion so far: Arguably, the Beardsley decision would allow law enforcement to tape any conversation – not just those enumerated in this bill. This bill does not violate the Fourth Amendment. And I — I rose initially to indicate that we’re really not talking about implicating any change in the Fourth Amendment. Obviously, we’re not able to do that. The federal government currently allows wiretapping on all federal offenses in this manner, and clearly, the original bill, which we passed out of here, would allow a far broader wiretapping than this bill does. The Bar Association had objections to that. They have negotiated this out, and this bill is really a far more limited
Page 32

use and — and — occurs in only two cases: one, where someone is actually recorded and then gets on the witness stand and lies, and you can use that recording as direct impeachment; the other exception is the great bodily harm – the bodily harm exception. And I understand that was part of the — the compromise suggested by the Bar Association. There’s a legitimate public policy argument, as suggested by Senator Molaro’s remarks, over whether we ought to do that in great bodily harm or not, but I don’t think that the Fourth Amendment is implicated. And I would urge your approval of the Conference Committee Report to 1787.

PRESIDING OFFICER: (SENATOR DUDYCZ)
Senator Barkhausen, to close.

SENATOR BARKHAUSEN:
Thank you, Mr. President. Let me — let me start by — by offering an apology, if — if any of my remarks were taken as a — as a personal offense. I — I am just simply puzzled that Illinois has been so behind the times in moving in the direction of criminal law enforcement policy that the federal government and more than forty other states have already taken, and we’re moving, you know, ever so slightly in the same direction by passing this bill, if we do. And — and that was the reason for my remarks, and I again urge your support.

PRESIDING OFFICER: (SENATOR DUDYCZ)
The question is, shall the Senate adopt Conference Committee Report No. 1 on House Bill 1787. Those in favor will vote Aye. Opposed, vote Nay. And the voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish? Take the record. On that question, the Ayes are 40, the Nays are 14, 4 voting Present. The Senate does adopt Conference Committee Report No. 1 on House Bill 1787, and the bill, having received the required constitutional majority, is declared passed.
Page 33

STATE OF ILLINOIS 88th GENERAL ASSEMBLY HOUSE OF REPRESENTATIVES TRANSCRIPTION DEBATE 75th Legislative Day June 30, 1993

Daniels: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. Just to acknowledge that our most distinguished Governor of the State of Illinois, Jim Edgar is with us this morning.., this evening.
Steczo: “The Chair would like you to welcome the Honorable 3overnor to the chamber this evening. On Supplemental Calendar #1, appears House Bill 1787, under the Order of Conference Committee Reports. The Chair recognizes the Gentlemen from Cook, Representative Dart.”

Dart: “Thank you Mr. Speaker and Members of the House. House Bill 1787 is the result of the discussions and compromises made by the Department of State Police and the Illinois State Bar Association. It does two things, one of which is a clarification to straighten out the law in regards to consensual overhears.. The second part of it deals with consensual overhears for police officers’ safety, with numerous provisions in there to safeguard it. I would be happy to answer any questions.”

Speaker Steczo: “The Gentleman has moved for the adoption of the First Conference Committee Report on House Bill 1787. On that question, is there any discussion? The Chair
recognizes the Gentleman from Will, Representative Wennlund.”

Wennlund: “Thank you Mr. Speaker, Ladies and Gentlemen of the House. I rise in support of the Bill. What this does, and it’s strongly supported by the Illinois State Police, what
Page 24

it does is, it gives officers some method of protection against walking up to that car at night, or getting involved in a drug bust and…so that other state police can monitor that officer and watch out of his safety and
rescue him in the event he meets some undue force. It’s something that will help state police and other police agencies fight the war on drugs, and I urge your support.”

Speaker Steczo: “The Chair recognizes the Gentleman from Fulton, Representative Homer.”

Homer: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Homer: “Representative Dart, would you advise us to the current status of the Illinois State Bar Association?”

Dart: “This was the result of working with them for a extended period, and I believe they’re at least neutral. They may be in support of it, that…I’m not willing to say they’re in support of it, but I know they’re at least neutral on it. A lot of this language is theirs.”

Homer: “Did the provision go into this report that was being requested by them to close the disparity in interpretation between statutory and common law with respect to one party consent? Did their language go in the Bill?”

Dart: “Yeah. That’s the one in answer to the Beardsley case. It was specifically drafted by them to try to clarify that so there is no more confusion on that.”

Homer: “Thank you.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First…the Chair recognizes the Lady from Cook, Representative Davis.”

Davis: “Will the Gentleman yield?”

Speaker Steczo: “He indicates that he will.”

Davis: “Representative, this is really an eavesdropping Bill, is
Page 25

that correct?”

Dart: “No, what the Bill does, is it clarifies what we already presently have in law in regards to consensual overhears right now. There was a court which.. ,well, I say misinterpreted the statute which basically allowed for an individual to tape record another person’s conversation without any protections whatsoever. That’s the first provision of this. What this Bill does is says that you cannot do that, that is not something we will allow to occur, that’s the first provision. The second one says in these limited instances where a police officers safety is involved, that they can get through going through an elaborate procedure with the States Attorneys office and record keeping and notice provisions, they can get..be allowed to wear wire when they are in like drug purchases and the like.”

Davis: “So, let me be sure I understand you now. You’re saying the first provision is; that before a person can eavesdrop or record your conversation, you must be notified and give consent.”

Dart: “Exactly. What had.. .that’s how the law actually reads, but a court misinterpreted it as far as I.. .my view is. They interpreted it so that they said that only one party has to know its going on, and the court.. .they said that the other person had to actively demonstrate they have an expectation of privacy before it’s prohibited. So, this clarifies it and says that you have to tell the other person before you can do this.”

Davis: “Okay, now let me ask you this. On, I guess the other page here, it says ‘provides that any recording or evidence derived as a result of the exemption is inadmissible, unless the jury or impeachment exception implies.’Wanna
Page 26

explain that section?”

Dart: “What this is says, is that the information that is obtained cannot be used against the defendant unless the police officer is killed or great bodily injury so that he’s paralyzed or something he can’t come to court, those are the only times that any type of hearing could be used. The defense attorney, on the other hand, could use it if the defendant’s saying that the police officer took the dope and threw it at em, and the police officer is saying no I didn’t, I bought it off him, the defense attorney could use that information to impeach the police officers testimony.”

Davis: “Okay. What about #5; ‘requires notice to the person who was the subject of the interception or recording within a reasonable time.’”

Dart: “With.. .no more than 120 days. Present statute…” Davis: “But, this is after the fact.”

Dart: “It mirrors the present existing statute in regards to this.”

Davis: “Representative, does this take away existing freedoms from people? I don’t mean the protection of criminals, but I mean, are we taking away the freedoms that some people have who could be innocent, but because of this particular law they could go through an awful lot of difficulty?”

Dart: “No, because matter of fact the way the law is written, in particular it says that the States Attorney would not be able to use any of those tape recording devices anyway, so it’s not as if that’s gonna harm anybody. That …… be used. The States Attorney can’t walk in there with a tape and say I got you on tape. The only way that tape could ever be used is if the police officer who was.., in the narcotics transaction was shot and killed for instance.”
Page 27

Davis: “Let me say this, you know we could talk about narcotics transactions and all we want. I’m gonna be honest, I’m not interested in that.”

Dart: “That’s what the Bill goes for.”

Davis: “I’m really not interested.”.

Dart: “That’s what the Bill is directed towards though.”

Davis: “I’m gonna have to to give ya a ‘present’ vote on this, and I’ll tell you why Representative Dart, I hesitate, and I refuse, really, to vote on any more legislation that takes the freedoms of people, like having a private conversation. You get yourself involved in a situation where policeman want to harm you, and you’re innocent, and they tape part of a conversation, or they change what’s been said, and you could be irreparably harmed. I don’t think we do our citizens in Illinois justice and we could throw up that red flag of narcotics, but it just doesn’t wash. This is not the kind of legislation that’s going to rid this state or this country of drugs and the transporting of drugs. This, in my opinion, is just another removal of a constitutional freedom that we all seek and want, and that’s to have free conversation with somebody without feeling you’re being taped.”

Speaker Steczo: “Is there any further discussion? The Chair recognizes the Gentleman from Champaign, Representative Johnson.”

Johnson, Tim: “I think we always get to the end of these Sessions, and then a Bill that might not otherwise have a chance of passing, because it’s so flz. ;ets to us in this form, and then we’re more inclined to support it.
Everybody ought to oppose this Bill. This Bill is an attempt to get one more element of the camels nose under the tent with respect to eavesdropping. What makes this
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country unique, makes Illinois unique, as a part of the United States is certain elements of civil liberties that we’ve come to accept, that really are unique in the world, and one of them is the ability to be free from efforts of government to intrude in one’s privacy. I can debate the merits of this Bill in detail all day, but the bottom line is that everybody in Illinois is subject to having their privacy interfered with and their concept of fundamental rights damaged by the passage of this Bill. This is one more attempt, most of which have been beaten off before by a bipartisan coalition of people who still think that the Bill of Rights means something. But, one more attempt to try to chip away in the fake name, phony name of law enforcement at our basic civil liberties. This is a bad, bad Bill. It’s a bad precedent. I didn’t sign the Conference Committee Report for precisely that reason, and the Bill oughta be defeated.”

Speaker Steczo: “The Chair recognizes the Gentleman from DuPage, Representative Roskam.”

Roskam: “Thank you, Mr. Speaker, Ladies and Gentlemen of the House. With all due respect to the previous Speaker, my good friend, I respectfully disagree; and I did sign that Conference Committee Report. In my opinion, this is an opportunity for us to empower the men and women who are on the front lines of the fight against crime in their efforts to go undercover and what not. This evidence cannot be used against a defendant unless a police officer ends up dead in the line of duty, …… it’s used for impeachment. So, in my view, this is an opportunity for us to give the men and women on the front lines the tools to defend themselves, and I would urge an ‘aye’ vote.”

Speaker Steczo: “Representative Dart, to close.”
Page 29

Dart; “Thank you, Mr. Speaker. Just to clarify the record on this. This is a very limited procedure we’re talking about here. The one concept is actually going to try to protect more people’s rights because of a court interpretation. Presently, under the way these courts have interpreted the law, a constituent can contact you on the telephone, put a tape recorder on you, and unless you actively state to your constituent, ‘I do not wish to have this recorded’, they can do it and avoid the eavesdropping law. This closes that loophole in that. The second provision is in response to officers who were shot. There was an officer shot in DuPage county, it’s a very dangerous thing. The world has changed a great deal, and this is unique, it is not unique. There are 42 other states that have similar provisions to this. There’s numerous safeguards in here. This is not evidence we’re talking either. we talking the only time this tape recording could ever be used is if the police officer is shot. If he’s shot at the door, or if there’s great bodily injury to him, and even in that instance, it’s very limited. The safeguards are numerous in there. We’re trying to bring Illinois in.. .up to snuff with the other states in the union right now, and it’s purely a question of protecting the police officers, who on a daily basis, we put in jeopardy of their own lives. This is a very important measure. We are not intruding further on citizen’s rights, and I would urge your support.”

Speaker Steczo: “The question is, ‘Shall the House adopt the First Conference Committee on House Bill 1787. All those in favor will signify by voting ‘aye; those opposed by voting ‘no’. The voting is open. Have all voted who wish? Have all voted who wish? Have all voted who wish?

Mr. Clerk, please take the record. On this question, there
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are 82 voting ‘yes’, 31 voting ‘no’, 2 voting ‘present’, and the House does adopt the First Conference report on House BIll 1787, and this Bill having received the required Constitutional Majority, is hereby declared passed.

STATE OF ILLINOIS 90TH GENERAL ASSEMBLY HOUSE OF REPRESENTATIVESTRANSCRIPTION DEBATE 107th Legislative Day April 1, 1998

Speaker Hartke: “Discussion on the Bill. This Bill is on Short Debate. The Chair recognizes the Gentleman from Kendall, Representative Cross.”

Cross: “I’m joined by all my colleagues with their hands up taking this off Short Debate. Thank you, Mr. Speaker.” Speaker Hartke: “I didn’t see the…

Cross: “… now see.”

Speaker Hartke: “Yes, I do.”

Cross: “Will the Sponsor yield?”

Speaker Hartke: “Indicates he will.”

Cross: “Representative, any opposition to this Bill?”

Fritchey: “No, Sir.”

Cross: “Even with both Amendments?”

Fritchey: “None that I’m aware of.”

Cross: “I’m a little.., not puzzled, but could you explain to us again? Go over the eavesdropping section. We couldn’t hear anything you said about it.”

Fritchey: “There’s actually a few items with respect to eavesdropping. With respect to an eavesdropping device, it now will define a eavesdropping device as something that can intercept or record conversations over pagers and fax machines, as well as telephonic electronic media. With respect to, who was exempted from law enforcement,it now exempts law enforcement officers from listening to conversations that do not qualify as private oral communications. And what specifically does not qualify as a private oral communication anymore are communications that take place on stolen cellular service. So, for example, if an individual has a conversation on a stolen cellular phone, or a cloned phone, he no longer has an expectation of privacy on a conversation that takes place
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on that stolen cellular phone.”

Cross: “John, it’s kind of tough to hear you. Is this an ongoing problem in Cook County?”

Fritchey: “What this is, it’s trying to do a few things. It’s trying to modernize and bring up to date some of the eavesdropping law.., eavesdropping laws and private communication laws by stating when there is an expectation of privacy and when there isn’t. The other provisions in there are to give a tool to law enforcement. What’s happened now, through technology, is offenders are kind of a step ahead of law enforcement right now. They can clone a cellular phone and still be able to evade detection on that, because up until now, we cannot use electronic surveillance on that cellular phone because they have an expectation of privacy. This Bill’s aimed at taking that expectation of privacy away. It additionally now includes pagers and fax machines as items that can be eavesdropped upon. So, now we can go for enforcement of that, and as I said, what’s happened is, you have individuals that are cloning pagers to find out which informants are calling police officers. So, the short answer to your question is, yes, it’s an ongoing problem, which is why the State’s Attorney came up with this package.”
Cross: “Now, are we reading this correctly that the violation here, under the eavesdropping section, is a Class I Felony?”

Fritchey: “Violation of the eavesdropping is a Class IV, subsequent offenses is a Class III. If the… If the violation involves eavesdropping on a police officer, a state’s attorney, an attorney general, a judge, or a Legislator while in the performance of their official duties, then it’s a Class I, and that again is to protect
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any of these individuals from interference with their official duties.”

Cross: “Why… I mean, I can understand the state’s attorneys maybe, and I can understand police. Why on earth should it be a Class I Felony if someone overhears what we’re saying as Members of the General Assembly? Why are we a protected class?”

Fritchey: “It’s not just what we’re saying, for example, during this debate. It’s private communications. It may be a furtherance of legislative duties, discussions that we may be having with other protected Members, police officers, judges, et cetera, and that they want to accord all these classes a higher level of protection.”

Cross: “I know we talk about a lot of National Security issues, maybe that’s why we make it a Class I. I don’t have any other questions. I know Representative Durkin has some.”

More developing…. check back often.

Tagged , , ,

People v. Polk 21 Ill.2d 594, 174 N.E.2d 393 Ill. 1961 April 26, 1961

21 Ill.2d 594, 174 N.E.2d 393

Supreme Court of Illinois.
PEOPLE of the State of Illinois, Plaintiff in Error,
v.
Trannie POLK, Defendant in Error.

No. 36110.
April 26, 1961.

Perjury prosecution. The Circuit Court, St. Clair County, Joseph E. Fleming, J., quashed the indictment, and the People brought error. The Supreme Court, Solfisburg, burg, J., held that indictment charging defendant with perjury in denying persuading persons to certain action was insufficient as not susceptible of legal proof, since defendant’s denial could not be based on objective knowledge, but only on opinion of subjective mental condition.

Judgment affirmed.

Indictment charging defendant with perjury in denying persuading persons to certain action was insufficient as not susceptible of legal proof, since defendant’s denial could not be based on objective knowledge, but only on opinion of subjective mental condition. S.H.A. ch. 38, § 475.

William L. Guild, Atty. Gen., and John J., Hoban, State’s Atty., Gelleville (Fred G. Leach, Asst. Atty. Gen., of counsel), for plaintiff in error.

Kassly, Weihl, Carr & Bone, East St. Louis (Rex Carr, East St. Louis, of counsel), for defendant in error.

SOLFISBURG, Justice.

This cause is before this court on writ of error by the People of the State of Illinois from an order of the circuit court of St. Clair County, Illinois, dated April 22, 1960, quashing the indictment returned against Trannie Polk charging him with perjury while testifying before a St. Clair County grand jury in October of 1959. The circuit court held that the matter being investigated had been outlawed by the Statute of Limitations and, therefore, the defendant did not commit perjury.

As appears from the indictment, the defendant, a member of the East St. Louis Police Department, was called as a witness in a grand jury investigation of ‘alleged irregularities and unlawful acts alleged to have been committed by members of the East St. Louis Police Department.’ Apart from this, the record fails to indicate more precisely the scope of the investigation.

The defendant was examined on October 23, 1959, by the grand jury concerning a robbery which took place at the Paramount Club on September 17, 1955. An indictment was returned on December 22, 1959, alleging that the defendant falsely swore that he did not persuade certain witnesses to change their identification of one of the robbers of the Paramount Club. These are the precise questions and answers:

‘Q. I will ask you to state whether or not, you called Isaac Stewart, Rudolph Marian and Robert James to the East St. Louis Police Station on the 26th day of April, 1956? A. I think they came down to the station on that day if it was the day Eddie Baker was brought back from Chicago.

‘Q. Is it not true that you persuaded these three men, Isaac Stewart, Rudolph Marian and Robert James, to say that they could not identify the prisoner Eddie Baker as one of the men who robbed the Paramount Club on the 17th day of September, 1955? A. No I did not.

‘Q. Are you now saying that you did not persuade these three men to change their previous identification of Eddie Baker? A. I am saying that I did not ask them men to do that.’

and the indictment continued in this language:

‘Whereas, in truth and in fact, the said Trannie Polk, did persuade Isaac Stewart, Rudolph Marian and Robert James, to change their previous identification of  Eddie Baker as one of the persons who participated in the robbery of the Paramount Club on the 17th day of September, 1955, and to say that they could not identify the said Eddie Baker, and so the Grand Jurors aforesaid, upon their oaths aforesaid, do say that the said Trannie Polk, on the 23rd day of October, 1959, while testifying before the Grand Jury aforesaid, did, in manner and form aforesaid, commit wilful and corrupt perjury against the peace and dignity of the People of the State of Illinois, and contrary to the form of the Statute in such case made and provided.’

Defendant filed a motion attacking the power and authority of the grand jury to investigate the matter about which defendant was interrogated; attacking the failure of the indictment to show that the grand jury had the power and authority to conduct such an investigation; alleging that the indictment on its face showed that the defendant swore to a matter not material to an investigation within the power and authority of the grand jury to conduct; and attacking the sufficiency of the indictment itself to charge defendant with the crime of perjury; asserting that the alleged testimony of defendant is insufficient upon which to predicate a charge of perjury.

The circuit court of St. Clair County allowed defendant’s motion, selecting as its basis for the order that the matter being investigated had been outlawed by the Statute of Limitations and therefore the defendant did not commit perjury; that, in effect, the grand jury lacked the power and authority to make inquiry of the defendant about an incident on which the Statute of Limitations had run.

Neither the Illinois constitution nor the legislature has attempted to define the powers of the grand jury. It has its origin in the common law and has existed for many hundreds of years. Its construction, organization, jurisdiction and method of proceeding were all well known features of the common law before the organization of the State of Illinois and have been recognized and adopted in all our constitutions and in legislation as it existed at the organization of the State. People ex rel. Ferrill v. Graydon, 333 Ill. 429, 432, 164 N.E. 832. While the grand jury is a necessary constituent part of a court having general criminal jurisdiction (People v. Sheridan, 349 Ill. 202, 181 N.E. 617), its powers are not dependent upon the court but are original and complete. Its duty is to diligently inquire into all offenses which shall come to its knowledge whether from the court, the State’s Attorney, its own members, or from any source, and it may make presentments of its own knowledge without any instruction or authority from the court. People ex rel. Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832.

Although we have stated a court cannot limit the scope of the grand jury’s investigation (People ex rel. Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832), it is equally true that a grand jury has no right or jurisdiction to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved, or where it otherwise lacks jurisdiction of the subject matter. Pankey v. People, 1 Scam. 80; People v. Rogers, 348 Ill. 322, 180 N.E. 856, 82 A.L.R. 1124.

It appears from the perjury indictment here before us that the subject matter of the grand jury investigation had been an investigation of ‘alleged irregularities and unlawful acts alleged to have been committed by members of the East St. Louis Police Department, in the City of East St. Louis in said County of St. Clair.’ While the perjury indictment does not specifically allege that the investigation being conducted was in relation to a specific criminal offense, there is, on the other hand, no showing in the record that there was not an alleged offense against the criminal law of the State of Illinois which was the subject of investigation at that time. In the absence of any showing to the contrary, the presumption will be indulged that the investigation by the grand jury was one that it had the right and power to conduct. People v. Sheridan, 349 Ill. 202, 181 N.E. 617; People v. McCauley, 256 Ill. 504, 100 N.E. 182; Mackin v. People, 115 Ill. 312, 3 N.E. 222. Our decision in Pankey v, People, 1 Scam. 80, is not in point as there the record clearly showed the subject matter under investigation by the grand jury to be civil in nature, and not criminal. See also 22 A.L.R. 1366.

It is defendant’s position that, because he was asked a question or questions relative to a robbery which was no longer an indictable crime because of the Statute of Limitations, his false swearing was not material to any matter within the power of the grand jury to investigate and hence not perjury.

Nowhere in the record is there any indication, either in the charge to the grand jury or the testimony heard by it prior to the alleged false answers, that the subject matter of the grand jury investigation was barred from prosecution by the Statute of Limitations. The record, moreover, in no way shows that activities occurring in 1955 could not under the law of Illinois, of themselves, or as part of a course of conduct, be indictable offenses. E. g. People v. Konowski, 378 Ill. 616, 621, 39 N.E.2d 13; People v. Barrett, 405 Ill. 188, 90 N.E.2d 94; see 102 U. of Pa. L.Rev. 630. The Statute of Limitations is a defense which may or may not be urged by a defendant. Furthermore, there may have been a tolling of the Statute of Limitations by absence from the State, which of course may destroy such a defense.

Notwithstanding the fact that the grand jury’s investigation may have ultimately revealed that prosecution of such remote activity was barred or otherwise not itself indictable, defendant’s testimony given at that inquest was nonetheless material for the purposes of the investigation. Mackin v. People, 115 Ill. 312, 3 N.E. 222.

In the Mackin case the court had for consideration an indictment charging perjury, wherein the judge presiding in the criminal court charged the grand jury to inquire into matters arising out of a certain election in the 4th day of November 1884, where the point in question was *600 whether certain false and imitated election ballots had been unlawfully substituted for genuine ballots used at the election. Upon that inquiry it was alleged that it became material whether defendant did employ persons to print ballots and that he did obtain from the printers a package of ballots in imitation of the ballots used in the election under investigation. The defendant denied before the grand jury that he was so involved. On the trial the court instructed the jury that in determining whether the matters sworn to were material to the question under investigation by the grand jury it was not necessary for the People to show that a crime had actually been committed. In sustaining the indictment the court (115 Ill. at page 323, 3 N.E. at page 226) said: ‘and that it is sufficient to show the grand jury were investigating an alleged crime, and that such evidence inquired into of defendant, by the grand jury, was material evidence in such investigation of such alleged crime. It sufficiently appears from the averments of the indictment, the offense the grand jury had been charged to investigate, and which they were attempting to do, was, whether spurious ballots had been substituted for genuine tickets, or ballots. That was an offense against public justice, and was a matter within the province of the grand jury to investigate. An inquest of that character is a legal proceeding under the sanction of the law. Such an investigation would be utterly futile, and even a farce, if witnesses might testify falsely, and no perjury could be assigned on such corrupt false testimony. Their right to investigage did not depend upon the fact the alleged crime they were about to investigate had actually been committed. It was sufficient the grand jury had undertaken to investigate an alleged, crime, to authorize them to call witnesses before them, and if their testimony given upon such investigation is willfully and corruptly false, perjury may be assigned upon it, as is done upon false testimony given in any other legal proceedings. It is obvious in such case all testimony material to the matters before the grand jury which may tend disclose that an offense has been or has not been committed, is important. Unless witnesses, when called before the grand jury in such cases, can be compelled to speak the truth, it would be impracticable to detect crime. In The State v. Schill, 27 Iowa 263, it was held, in an indictment for perjury in a criminal investigation before the grand jury, it is not necessary to allege the party charged with the offense that was under investigation was or was not guilty thereof, nor the facts constituting such offense. It was said in the opinion of the court, the defendant might be guilty of perjury before the grand jury though the party whose case was being investigated was innocent, and though, in fact, no such offense had been committed by him.’

Defendant relies on the case of Bennett v. District Court of Tulsa County, 81 Okl. Cr. 351, 162 P.2d 561. The facts therein indicate that a Tulsa County, Oklahoma, grand jury had been charged to investigate an alleged criminal conspiracy, all the overt acts of which clearly appeared from the outset to have occurred in Oklahoma County, Oklahoma; all such overt acts, moreover, had occurred more than three years prior to the date of the indictment action in Tulsa County. The defendant, Bennett, who had testified before the grand jury, was subsequently indicted by the Tulsa grand jury for the conspiracy which had been the subject of investigation. The defendant’s motion to quash the indictment was allowed by the trial court and affirmed by the Oklahoma Criminal Court of Appeals (see State of Oklahoma v. Bennett, 81 Okl. Cr. 206, 162 P.2d 581), on the ground that the Tulsa County trial court had been without jurisdiction of the alleged offense because of its occurrence wholly in another county and because prosecution was barred by a three-year Statute of Limitation. Defendant, however, was also indicted for perjury committed before the Tulsa grand jury in the course of its investigation. The Criminal Court of Appeals in the case cited by defendant, 162 P.2d 561, 572, quashed the perjury indictment because: ‘All of the evidence before the grand jury revealed that if any offense had been committed it had been committed in Oklahoma County and not in Tulsa County’ and therefore the questions asked were ‘not material to the issue before the grand jury,’ inasmuch as ‘where the court or body does not have jurisdiction of the subject matter, perjury can not based upon false testimony given at such hearing or trial neither the court nor the grand jury had jurisdiction of the subject matter.’ The court defined ‘the subject matter in so far as this perjury case is concerned (as being): Did the grand jury in Tulsa County have the right to investigate a crime which the evidence before it clearly showed was committed, it at all, in Oklahoma County?’

It is clear that the Bennett decision cited by defendant premised the lack of grand jury authority to investigate upon a basis quite distinct from defendant’s contention in the present case. There is nothing in the record which even remotely suggests the subject matter of the investigation charged to the grand jury or the acts constituting the subject matter of the particular question or questions asked occurred beyond the borders of St. Clair County. In the absence of the record affirmatively showing such fact, there is the presumption that the grand jury had ‘jurisdiction of the subject matter,’ and hence could make lawful inquiry of the activities occurring in 1955, even though after complete investigation it may be revealed that prosecution of such activity is barred by the Statute of Limitations. The entire implication of the Bennett decision is that, absent the venue problem, the perjury indictment would have been good. This is our interpretation of the language used by the Oklahoma court in distinguishing their case from Mackin v. People (162 P.2d 561, 567): ‘There was no question of the court’s jurisdiction and the right of the grand jury to conduct the investigation. There was jurisdiction of both subject matter and the person. The crime had been committed within the venue of the county where the charge was filed. It was the duty and right of the grand jury to make this investigation under these facts.’

It is indeed reasonably possible that inquiry of conduct occurring in 1955, could be one step in the investigation that might lead to the ascertainment of the truth of the matter charged to and being investigated by the grand jury. These facts were for that reason material and vital to the grand jury’s investigation.

In Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 471, 63 L.Ed. 979, the defendant refused to answer questions in a grand jury investigation. It appears that the Federal grand jury of the Southern District of New York was making inquiry concerning the Corrupt Practice Act and its infringement in a primary election held in the State of Michigan, on August 27, 1918. Defendant’s refusal to answer questions was based upon the claim that the Corrupt Practice Act was invalid and that the grand jury was without jurisdiction to investigate a primary election in the State of Michigan. The court in adjudging defendant guilty of contempt for his refusal to answer questions stated that ‘witnesses are not entitled to take exception to the jurisdiction of the grand jury. In truth it is the ordinary case no concern of one summoned as a witness whether the offense is within the jurisdiction of the court or not.’ Defendant is ‘not entitled to raise any question about the constitutionality of the statutes under which the grand jury’s investigation was conducted.’

In State v. Kasherman, 177 Minn. 200, 224 N.W. 838, the court said: ‘A witness before a grand jury, no personal privilege of his own being invaded may not refuse to answer questions because they seem to relate only to an offense, the prosecution of which is barred by the statute of limitation.  Proof of an outlawed crime may very well be of the *604 highest importance to a grand jury. It may lead to the discovery of a similar crime, the prosecution of which is not barred by (the) statute.’

Another case relied upon by defendant, People v. Blumenfeld, 330 Ill. 474, 161 N.E. 857, is found to throw little light upon the problem.

The last contention made by defendant relates to the sufficiency of the indictment. It is his contention that the indictment fails to contain an explicit statement as to when and where he allegedly persuaded the witnesses to change their identification; that it fails to state that the robbery of the Paramount Club took place in St. Clair County; that the questions asked of defendant do not reveal just what defendant denied doing, and were unspecific, vague and general in nature so as not to be susceptible to an interpretation which, even if the answers were proved to be false, would be the firm legal basis for a perjury conviction.

The sufficiency of the indictment is to be tested by section 227 of division I of the Criminal Code (Ill.Rev.Stat.1959, chap. 38, par. 475) which pertains solely to the sufficiency of pleadings in perjury and subornation of perjury cases. By its terms an indictment charging perjury is declared sufficient when it sets forth the substance of the controversy or matter in respect to which the offense was committed and before whom the oath alleged to be false was taken, and when it avers that such court or authority had full power to administer the same, with proper allegations of the falsity of the matter on which the perjury is assigned. People v. Curtis, 36 Cal.App.2d 306, 98 P.2d 228.

A difficult question arises when we consider the particular alleged false statements made by defendant. The gist of the indictment is that defendant testified that he did not ‘persuade these three men to say they could not identify the prisoner’ when in fact he did persuade them to so change their previous identification of the prisoner.

It is apparent that the term ‘persuade’ is used in the *605 indictment as a transitive verb, and as commonly understood requires that objective acts of defendant caused a subjective mental condition in the three men referred to. It is obvious that defendant could not know as a fact that any acts of his were the causative factor in the change of mind alleged. He could of course have testified as to his acts and conversations, and as to these perjury would lie if untrue.

While courts will not quash a perjury indictment merely because the matter of proof is difficult (Annotation: 66 A.L.R.2d 791), the charge must be susceptible of legal proof. In the case at bar we think that the inquiry addressed to defendant called for a conclusion both as to the state of mind of others and the causative effect of defendant’s acts. Since the answer of defendant was not one of fact, but rather a conclusion that could be drawn only from unascertainable premises, we do not feel that perjury will lie. 41 Am.Jur., Perjury, p. 6.

We, therefore, conclude that the trial court properly quashed the indictment. The judgment of the circuit court of St. Clair Courty in accordingly affirmed.

Judgment affirmed.

Ill. 1961
PEOPLE v. POLK
21 Ill.2d 594, 174 N.E.2d 393

Your Right of Defense Against Unlawful Arrest

Your Right of Defense Against Unlawful Arrest

These are not my words. These are the words uttered by the courts within the United States and other States. I am not advocating violence or promoting the unjust taking of life. As a matter of fact, I am morally opposed to any taking of life.

However, in the realm of our humanity and circumstances we cannot control, any individual has to allow for some possibility of death to others, whether intentional or unintentional, when defending themselves from what they perceive to be imminent harm or death to themselves. That said, government, being the incarnation of force, has recognized at the judicial level the right of people to defend themselves when that force is exercised unjustly.

How can any of this be avoided? In my opinion, by abolishing government and creating better ways for society to function. That option notwithstanding, by government mitigating the potential harm it causes by limiting its actions to those involving violent actions of others as opposed to regulatory edicts imposed upon an otherwise peaceful populace.

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903. “An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.'” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

“Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the law of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to the law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.” Town of Blacksburg v. Bean 104 S.C. 146. 88 S.E. (Wis 1924)

“Where officers do not conform to the ‘law of the land’ they have no authority and the right to resist them exists. A Public Officer, as with a citizen, who unlawfully threatens life or liberty, is susceptible to be injured or killed; for by such acts ‘they draw their own blood upon themselves’ As stated in some cases, ‘where a peace officer has no right to make an arrest without warrant he is a trespasser and acts at his own peril.” 6A CJS., “Arrest” Section 16 page 30; A sheriff who “acts without process,” or “under a process void on its face, in doing such act, he is not to be considered an officer but a personal trespasser.” Roberts v. Dean, 187 So. 571, 575 (Fla. 1939)

“A person has a lawful right to resist an arrest by an unlawful authority, i.e., an officer without a valid warrant.” Franklin,118 Ga. 860, 45 S.E.

“What of the resistance to the arrest? The authorities are in agreement that since the right of personal property is one of the fundamental rights guaranteed by the Constitution, any unlawful interference with it may be resisted and every person has a right to resist an unlawful arrest. * * * and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” City of Columbus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)

“It is the law of self defense and self preservation that is applicable. “One has and “unalienable” right to protect his life, liberty or property from unlawful attack or harm.” “* * * it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody without resistance.” Adarns v. State, 121 Ga 163, 48 S.E. 910 (1904)

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right to use force in defending himself as he would in repelling any other assault and battery.” State v. Robinson, 145 Me. 77, 72 Atl, 2nd.260, 262 (1950)

“A citizen illegally arrested “cannot initiate the use of force” and neither do “words alone justify an assault.” However, “when the officer initiates the assault by physical contact, which is usually the case, and there is an unlawful arrest, the citizen has the right to protect his liberty to the extent of killing the officer.” See Green v. Kennedy, 48 N.Y. Rep. 653, 654 (1871) and/or Hicks v. Matthews, 266S.W. 2nd. 846, 849 (Tex. 1954)

“What rights then has a citizen in resisting an unlawful arrest? An arrest without warrant is a trespass, an unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined as in other cases of assault. Life and liberty are regarded as standing substantially on one foundation; life being useless without liberty, and the authorities are uninformed that where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the officer, to the extent of taking the life of the assailant, if that be necessity to preserve his own life, or prevent infliction upon him of some great bodily harm.” State v. Gum, 68 W. Va. 105, 69 S.E. 463, 464 (1910)

“It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened. State v. Rousseau, 40 Wash. 2nd, 92, 241 P. 2nd. 447, 449 (1952); Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905); see also State v. Mobley, 240 N.C. 476, 83 S.E. 2nd 100, 102 (1954); Wilkinson v. State, 143 Miss. 324, 108 So. 711, 712-13 (1926); American Jurisprudence, 2nd Ed., “Arrest”, Section 94, pp. 778-780; Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892); Presley v. State, 75 Fla. 434, 78 So. 532, 534 (1918); Burkhard v. State, 83 Tex. Crim. 228, 202 S.W. 513; Mullins v. State, 196 Ga. 569, 27 S.E. 2nd. 91 (1943); Ownes v. State, 58 Tex. Crim. 261, 125 S.W. 405 (1910); Caperton v. Commonwealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)

“The United States Supreme Court, and every other court in the past deciding upon the matter, has recognized that “at common Law”, a person had the right to “resist the illegal attempt to arrest him.”John Bad Elk v. United States, 177 U.S. 529, 534-35 (1899)

See also The Law of Arrest in Civil and Criminal Actions

Thanks to this site for information – http://www.constitutiondefender.com/natural_law_to_defend_yourself.htm

THE RIGHT TO SELF DEFENSE

I have often wondered what it was like when communities were small, and everybody knew everybody. This thought occurred to me while I was driving through Tombstone, Arizona, site of the famous gunfight. As was reported in the papers of the day (not television news), the Earps and Doc Holliday were walking down the street, knowing that the Clantons and Lowery were at the corral. These factions had been at odds with each other for years, and on this day there appeared to be a plan, for as the Earps and Doc walked by the Clantons, the Earps threw some hateful words out. This, apparently, did not provoke the desired action, so Doc pulled his shotgun from under his coat, turned and fired. The Earps then joined in and only two of the others got away.

Similarly, here in Waco, one faction, with color of law, was able to open up on the other in a devastating gunfight that left 9 dead. The color of law was sufficient, at least for the time being, to vindicate the aggressors. In both cases the side with color of law would have, if circumstances warranted, been given time off, with pay, while adjudication occurred. The other side would have been incarcerated until adjudication was completed. Those with color of law would not be charged with a crime, but the others would be charged with serious crimes.

While I was here during the siege I ran across an interesting piece of Texas law. In the Texas Penal Code, �9.31 (C), reads as follows: �9.31 (C) The use of force to resist arrest or search is justified: (1) If, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer”s (or other person”s) use or attempted use of greater force than necessary.

There must have been a reason for this law to have been passed, so I went back and reread the definition of:

liberty 1. Exemption from slavery, bondage, imprisonment, or control of another. 2. Freedom from external restraint or compulsion (Webster”s New Collegiate Dictionary). LIBERTY Freedom; exemption from extraneous control. The power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons. (Black”s Law Dictionary – Third Edition)

It appears, then, that the right for each of us to walk freely, subject to not harming or injuring another person or his property is the concept of liberty that the Founding Fathers spoke of, and we have let our liberty be lost in a myriad of regulation, rule and control. What gives a “peace officer” the right to take a persons liberty, or property? Obviously the Texas legislators realized that excessive force could be used, unlawfully, justifying lawful retaliation. Perhaps they understood human nature and knew that personal bias might play a part when one person, operating under color of law, might exceed lawful exertion of force.

Understanding that abuse of power might occur, isn’t it possible that both time and extension of power might result in “law enforcement” officers exerting an authority that is beyond lawful authority? Wondering how, and why, the scope of law enforcement may have changed, I began searching further and ran into an interesting account of a significant change that came as a result of a major trauma in the history of the United States of America. During World War II, especially with the troops being an occupation army after the armistices, there was a rather carefree attitude among those who thought they may never see home again. To control the servicemen the Military Police had to impose arbitrary authority under the maritime jurisdiction that all soldiers were subject to. Meanwhile, back in the states, police officers approaching retirement during the war tended to stay on to help out in the war effort. As the MP”s began returning stateside (literally tens of thousands of them) they began to fill the ranks of local law enforcement, filing in the gap made by those now retiring. The attitude of arbitrary enforcement was ingrained in the returnees, and, although tempered by training as they joined the local ranks, still became a prevalent attitude which began a change of servant to master. I looked further (American”s Bulletin, September 1993) and found an interesting article, portions of which follow:

This fundamental premise was upheld by the Supreme court of the United States in the case of John Bad Elk v. U.S., 177 U.S. 529 (1900) when the court stated: “…where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest, from what it does if the officer had no right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed. “an arrest made with a defective warrant; or one issued without affidavit; or one that fails to allege a crime is without jurisdiction, and one who is being arrested may resist arrest and break away. If the arresting officer is killed by one who is resisting, the killing will be no more than involuntary manslaughter. In reviewing the case we find that: “The court charged the jury: “The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. .. In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant [John Bad Elk] he would have the right to show his revolver. He would have had the right to use only so much force as necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgot his duties as an officer and had gone beyond the force necessary to arrest the defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest. The jury, relying on these instructions, convicted John Bad Elk of murder and the case went to the higher court on error. The higher court stated: “We think the court clearly erred in charging that the policeman had the right to arrest the plaintiff [John Bad Elk] in error, and to use such force as was necessary to accomplish the arrest, and that the plaintiff had no right to resist it. “At common law, if a patty resisted arrest by an officer without a warrant, and who had no right to arrest him, and if in the course of resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had the right to arrest, to manslaughter. .. So we can clearly see that something has happened that has had the affect of allowing us to be arrested (lose our liberty) by the design of a law enforcement officer when the Supreme Court has held that the officer has no right unless certain procedures (constitutional protections) are adhered to.

Perhaps we have been led to believe that law enforcement has superhuman rights. Perhaps the Founding Fathers, and those that followed recognized that no special privilege could be granted to normal humans who took a job that put them at risk. Perhaps arrest cannot be made, unless by indictment, properly obtained information or if a serious crime, not minor, is committed in the presence of the officer, and, perhaps not even in this last case unless property or lives are at stake. As a general rule we have accepted the fact that we may shoot another person to protect our lives, property or money. But what is property or money if not a previous conversion of time. The time exerted to achieve the money or property surely had value.

When someone attempts to “steal” that time prior to conversion are we not able to understand that even more is being taken away than when property is? Just because a man is wearing a badge gives him no right to take from us what we would not allow to be taken by someone without a badge. Why have we come to a point that we accept authority, such as that which invaded Mt. Carmel Center, Waco, Texas, without question? However, when the matter comes to life or death we are willing to protect our property, by any means necessary, when just the property jeopardized.

“It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened. State v. Rousseau, 40 Wash. 2nd, 92, 241 P. 2nd. 447, 449 (1952); Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905); see also State v. Mobley, 240 N.C. 476, 83 S.E. 2nd 100, 102 (1954); Wilkinson v. State, 143 Miss. 324, 108 So. 711, 712-13 (1926); American Jurisprudence, 2nd Ed., “Arrest”, Section 94, pp. 778-780; Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892); Presley v. State, 75 Fla. 434, 78 So. 532, 534 (1918); Burkhard v. State, 83 Tex. Crim. 228, 202 S.W. 513; Mullins v. State, 196 Ga. 569, 27 S.E. 2nd. 91 (1943); Ownes v. State, 58 Tex. Crim. 261, 125 S.W. 405 (1910); Caperton v. Commonwealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)

“The United States Supreme Court, and every other court in the past deciding upon the matter, has recognized that “at common Law”, a person had the right to “resist the illegal attempt to arrest him.” John Bad Elk v. United States, 177 U.S. 529, 534-35 (1899)

1. State v. Robinson, 145 Me 77, 72 Alt. 2d 260, 262 (1950)

2. State v. Gum, 68 W. Va. 105

3. State v. Rouseau, 40 Wash. 2d. 92, 241, 242 P.2d 447, 449 (1952)

4. State v. Mobley, 240 N.C. 446, 83 S.E., 2d 100, 102 (1954)

5. Wilkinson v. State, 143 Miss. 324, 108 So. 711

6. Thomas v. State, 91 Ga. 204, 18 SE 305

7. Presley v. State, 75 Fla. 434, 78 So. 523

8. Burkhardt v. State, 83 Tex Crim 228, 202 S.W. 513

9. Mullis v. State, 196 Ga. 569, 27 SE 2d 91 (1943)

10. Owen v. State, 58 Tex Crim 261, 125 S.W. 405 (1910)

11. Franklin,118 Ga. 860, 45 S.E. 698 (1903)

12. Graham v. State, 143 Ga. 440 85 S.E. 328, 331

13. City of Columbus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)

14. Adams v. State, 121 Ga 163, 48 S.E. 910 (1904)

15. Robertson v. State, 198 S. W2d 633, 635-36 Tenn. (1947)

16. Roberts v. Dean, 187 So. 571, 575 Fla. 1939

17. The State of Connecticut against Leach, 7 Conn, Rep. 452 (1829)

18. Housh v. The People, 75 ILL Rep. 487, 491 (1874)

19. Plummer v. The State, 135 Ind. 308, 313, 334 N.E. 968 (1893)

20. John Bad Elk v. U.S. 177 U.S. 529 (1899)

21. People v. Hevern, 127 Misc. Rep. 141, 215 NY Supp 412

22. U.S. v. Cerciello, 86 NJL 309, 90 Atl.1112, (1914)

23. U.S. v. Kelly, 51 Fed 2d 263 (1931)

24. Bednarik v. Bednarik, 16 A 2d, 80, 90, 18 NJ Misc. 633 (1948)

25. State v. Height, 117 Iowa 650, 91 NW 935

26. People v. Corder, 244 Mich. 274, 221 NW 309

27. Boyd v. U.S., 116 U.S. 616

28. State v. Newcomb, 220 Mo 54 119 SW 405

29. Town of Blacksburg v. Bean, 104 S.C. 146. 88 S.E. 441 (1916)

30. Allen v. State, 197 N.W. 808, 810-11(Wis 1924)

31. Adarns v. State, 121 Ga 163, 48 S.E. 910 (1904) Green v.Kennedy, 48 N.Y. Rep. 653, 654 (1871)

32. Hicks v. Matthews, 266 S.W. 2nd. 846, 849 (Tex. 1954)

33. Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905)

34. Mullins v. State,196 Ga. 569, 27 S.E. 2nd. 91 (1943)

35. Caperton v. Commonwealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)