er to be given such propositions were con- | Mirich v. Forschner Contracting Co., 312 III. tained in other given instructions, and that 343, 143 N. E. 846. For the reasons given in each one of the others singled out some particular fact or facts and told the jury to take such fact or facts into consideration in arriving at their verdict, and were therefore properly refused.

Finding no reversible error in the record, the judgment of the circuit court is affirmed. Judgment affirmed.

that case we must reverse the judgment of
the Appellate Court and remand the cause
to that court for further proceedings in har-
mony with the views therein expressed, and
it is accordingly done.
Reversed and remanded.

(314 Ill. 485)

(No. 16172.)

WALLACE v. ODELL. (Supreme Court of Illinois. Dec. 16, 1924.) Appeal and error 1177 (7)-Appellate Court cannot reverse on facts without remanding where evidence conflicting.

Where trial was by jury, and evidence was conflicting, Appellate Court is not authorized to reverse judgment on the facts without remanding cause for new trial.

Error to Third Branch, Appellate Court, First District, on Appeal from Municipal Court of Chicago; William N. Gemmill, Judge.

Action by Mary W. Wallace against Benjamin F. J. Odell. From judgment of Appellate Court reversing judgment in her favor, plaintiff brings error. Reversed and remanded.

(314 III. 518)

PEOPLE v. PRALL. (No. 16207.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Criminal law 395-Admitting automobile casings and tubes seized under defective search warrant held erroneous.

Admitting in evidence automobile casings and tubes seized under defective search warrant held erroneous in prosecution for receiving stolen goods.

2. Searches and seizures 3-Probable cause for issuance of search warrant is judicial question to be determined by magistrate.

Whether there is probable cause for issuing warrant is judicial question to be determined by magistrate before whom complaint is made. 3. Searches and seizures ——3—Requirements of complaint and evidence stated.

Testimony on which magistrate acts in issuing search warrant must be reduced to writing, incorporated in formal complaint, and veri

Gurdon Williams and P. R. Boylan, both fied by affidavit; complaint being required to of Chicago, for plaintiff in error.

THOMPSON, J. Plaintiff in error, Mary W. Wallace, was the plaintiff in an action instituted in the municipal court of Chicago against defendant in error, Benjamin F. J. Odell, an attorney at law, for the recovery of a sum of money which she claimed he was unlawfully retaining. There was a trial by jury and a verdict for $2,000 in favor of plaintiff in error A judgment was entered on this verdict and an appeal taken to the Appellate Court for the First District. March 3, 1924, the Appellate Court entered its judgment reversing the judgment of the municipal court with a finding of fact that defendant in error had rendered legal services to plaintiff in error which were of greater value than the amount of money which he had retained. Judgment was entered in the Appellate Court on this finding, and the cause is brought here for review by certiorari.

At the April term of this court we held that, where, as in this case, there has been a trial before a jury and the evidence in the case is conflicting, the statute does not authorize the Appellate Court to reverse the judgment, for the reason that it has reached a different conclusion on a consideration of the facts than was reached by the trial court, without remanding the cause for a new trial.

state facts constituting crime and facts on which complainant bases belief that articles sought to be seized are concealed by defendant with sufficient definiteness, so that, if it is false, perjury may be assigned on affidavit.

4.

Searches and seizures 3-Complaint held insufficient to warrant finding of probable

cause.

Complaint held not to warrant finding of probable cause to believe that stolen property was concealed in defendant's home. 5. Searches and seizures 3-Description of stolen property must be sufficient to identify articles sought to be seized.

readily described, description, sufficiently parIn case of stolen property which can be ticular to identify articles sought to be seized, is required.

6.

Criminal law 404(4)-Alleged stolen tires and tubes not sufficiently identified as taken from freight car.

Where automobile tires and tubes were not identified as property of manufacturer or as having been placed in railroad car and stolen therefrom, it was error to receive them in evidence.

7. Criminal law 814(3)—Instruction that unexplained possession of recently stolen goods was prima facie evidence of guilt held inapplicable to evidence.

Instruction that exclusive and unexplained possession of stolen property soon after com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

mission of theft was prima facie evidence of
guilt of possessor held erroneous, there being
no evidence that defendant's possession was
exclusive.

8. Receiving stolen goods 3-Knowledge
by defendant at time he received property
that it was stolen essential element of crime.
Knowledge by accused when he received
property that it was stolen is essential element
of crime of receiving stolen property.
9. Criminal law 789 (18)—Instruction
reasonable doubt held erroneous.

along the track in the direction of the casings that were lying in the weeds. The deputy sheriff moved his position in the car so that he could see what the two men were doing and in moving made a noise, which attracted the attention of the men, whereupon they turned and walked toward the car and the deputy sheriff placed them under arrest. Plaintiff in error operates a taxi business in the city of Freeport and had driven on his automobile to a point on the highway near the railroad crossing and near where the railroad car was standing and had left it there. When the deputy sheriff returned to the car with the two men he found Fred Eberle near by. The three men were taken to the county jail. A search warrant was issued and Prall's house was searched. In the basement there were found two new Ajax casings and twelve new Ajax tubes. All the men were indicted, the indictment containing counts charging burglary, larceny, and receiving stolen property. state's attorney nolle prossed the indictment against Fred Eberle. The other two men were placed on trial, and Albert Eberle was acquitted and plaintiff in error was found guilty

In prosecution for receiving stolen goods, instruction that rule requiring jury to be satisfied of defendant's guilt beyond reasonable doubt did not require that they should be satisfied beyond reasonable doubt of each link in chain of circumstances relied on to establish guilt, it being sufficient if taking evidence altogether they were satisfied beyond reasonable doubt that he was guilty, was erroneous, in that it did not inform them as to facts to be proved beyond reasonable doubt.

10. Receiving stolen goods 8 (3)-Evidence

held insufficient to sustain conviction. Evidence held insufficient to sustain convic

tion.

The

II. Receiving stolen goods 1-Elements of of receiving stolen property. This writ of

crime stated.

Before there can be conviction for receiving stolen property, it must be shown (1) that property was stolen by one other than defendant, (2) that defendant has actually received it, (3) that he knew that it was stolen at time he received it, and (4) that he received it for his own gain or to prevent owner from again possessing it.

error is prosecuted to review the judgment entered on the verdict.

the action of the court in denying the peti[1] The first point made is with respect to tion of plaintiff in error to return to him the casings and tubes seized at his home, on the ground that the complaint on which the search warrant issued did not show reasonable cause for issuing the warrant, and on

Error to Circuit Court, Stephenson Coun- the further ground that the complaint and ty; Oscar E. Heard, Judge.

Robert R. Prall was convicted of receiving stolen property, and he brings error. Reversed and remanded.

Douglas Pattison and Ray T. Luney, both of Freeport, for plaintiff in error.

Edward J. Brundage, Atty Gen., Charles H. Green, State's Atty., of Freeport, and Virgil L. Blanding, of Springfield, for the People.

THOMPSON, J. July 12, 1923, C., M. & St. P. car No. 202587 was loaded at Racine, Wis., by the Ajax Rubber Company with Ajax casings and tubes for shipment to that company at Oklahoma City, Okl. The car arrived in Freeport about 8 o'clock a. m. July 14 and was placed on a side track just outside the city limits, where it remained all day. About 7:30 o'clock p. m. a deputy sheriff responded to a call concerning the

car and found that the seal had been broken and ten casings removed from the car and thrown into the weeds along the right of way. He concealed himself in the car and shortly thereafter he saw plaintiff in error Robert R. Prall and Albert Eberle walking

warrant did not describe particularly the property to be seized. This court has held that such an inquiry may be made (People v. Castree, 311 Ill. 392, 143 N. E. 112, 32 A. L. R. 357), and reference is made to the opinion filed in that case for a discussion of the question.

The complaint is made by the sheriff of the county, who says that a "certain number of automobile tires and tubes" were stolen by Prall and others and that he believes that the stolen goods are concealed in Prall's dwelling house, and that the reasons for said belief are the following:

"That a large number of automobile tires and tubes were found lying in the weeds alongside the railroad track of the said company, near a car partly filled with tires and tubes, by a deputy sheriff; that Robert R. Prall at night left his automobile in the highway and went into said weeds and was about to pick up a tire when arrested by deputy sheriff, and was anxious to telephone home."

Section 6 of the Bill of Rights provides: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

probable cause, supported by affidavit, particu-, is property that may be found in great quanlarly describing the place to be searched, and the persons or things to be seized."

[2, 3] Whether there is probable cause for issuing the warrant is a judicial question, to be determined by the magistrate before whom complaint is made. The testimony on which the magistrate acts must be reduced to writing, incorporated in a formal complaint and verified by affidavit. This com-ings bearing serial numbers and twelve new plaint must state the facts constituting the crime and the facts on which the complainant bases his belief that the articles sought to be seized are concealed by the defendant, with sufficient definiteness, so that, if it is false, perjury may be assigned on the affidavit. Lippman v. People, 175 Ill. 101, 51 N. E. 872; Myers v. People, 67 Ill. 503.

[4] The complaint on which the search warrant was issued in this case did not contain a statement of facts, supported by affidavit, which warranted a finding that there was probable cause to believe that stolen property was concealed in the home of plaintiff in error. It is not stated in the complaint that the automobile tires found lying alongside the railroad track had been stolen from the railroad car, nor that there were more tires stolen from the railroad car than were found along the track. In other words, there is no statement in the complaint which furnishes a basis for the conclusion that plaintiff in error had in his home certain tires stolen from this car. The fact that plaintiff in error left his automobile in the highway and walked to the place where these tires were lying in the weeds does not furnish a basis for concluding that tires had been stolen from the railroad car and removed by plaintiff in error to his

home.

[5] The most serious defect, however, is the want of particular description of the property sought to be seized. The warrant issued to the sheriff described the property as "certain automobile tires and tubes," and directed the sheriff to search the premises of plaintiff in error for "said stolen goods and chattels." In the case of stolen property which can be readily described, the Constitution requires a description sufficiently particular to identify the articles sought to be seized. Frost v. People, 193 Ill. 635, 61 N. E. 1054, 86 Am. St. Rep. 352. A minute and detailed description of the property to be seized is not required, but the property must be so definitely described that the officer making the search will not seize the wrong property. Where, as in the case of gambling paraphernalia, the purpose is not to seize specified property, but only property of a specified character which by reason of its character is contraband, a description by designating its character is sufficient. In this case, however, the property described is "certain automobile tires and tubes," which

tities and which is the subject of lawful trade in every city in the United States. There is no effort to identify these tires and tubes by name, number, color, size, or material. It is not even stated whether they are new or used. On the hearing on the petition to return the property to plaintiff in error, it was shown that the sheriff under this warrant found and seized two Ajax casAjax tubes bearing serial numbers, and that he found, but did not seize, other automobile casings and tubes. There was nothing in the warrant which gave the sheriff information by which he could select certain property within the description in the warrant and refuse to take other property equally well described in the warrant. The warrant was insufficient, and under the authority of People v. Castree, supra, and People v. Brocamp, 307 Ill. 448, 138 N. E. 728, the property should have been returned to plaintiff in error. The court erred in admitting these casings and tubes in evidence.

[6] There is another reason why it was error to receive in evidence the twelve tubes. No witness identified these tubes as the property of the Ajax Rubber Company or as tubes that had been placed in the railroad car and stolen therefrom. The same may be said of the two casings found on the premises of plaintiff in error. An employee of the Ajax Rubber Company testified that he loaded into the car at Racine, Wis., an automobile casing bearing the serial number 726330 and another bearing the serial number 725560. The two casings in question bore these serial numbers, but no one testified that the serial number on an automobile casing is a means of identifying it. There is no testimony that serial numbers are not duplicated or that the same serial number is not used in numbering casings on several casings of the same class. No one testified that the two casings described by the witness as being the ones placed in the car by him were ever taken from the car, or that they were not in the car when the arrest was made. No witness testified that the two casings seized at the home of plaintiff in error were the same size, color, or material as the two casings bearing similar serial numbers that were loaded into the car at Racine.

[7, 8] The court gave to the Jury an instruction which stated that

"The exclusive and unexplained possession of stolen property soon after the commission of a theft is prima facie evidence of the guilt of the person in whose possession it is found."

It was error to give this instruction for two reasons: First, the possession of stolen property soon after it is stolen is prima facie evidence of guilt only when the possession is exclusive in the accused, and

(145 N.E.)

himself. People v. Ensor, 310 Ill. 483, 142 N. E. 175. There is no competent evidence in the record that he received these casings and tubes from some other person.

there is no proof in this record that the cas-them himself. One person cannot be both the ings and tubes in question were ever in the thief and the receiver of the stolen properexclusive possession of plaintiff in error; ty. He cannot receive stolen property from second, possession of stolen property is not evidence of knowledge by the accused, when he received the property, that the property was stolen, which is an essential element of the crime of receiving stolen property, and so it was error to give this instruction, under any circumstances, without limiting it to the count charging larceny. People v. Lardner, 296 Ill. 190, 129 N. E. 697. [9] The following instruction was also given on behalf of the people:

"The jury are instructed that the rule requiring the jury to be satisfied of a defendant's guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied, beyond a reasonable doubt, of each link in the chain of circumstances relied upon to establish the defendant's guilt. It is sufficient, if, taking the evidence all together, the jury are satisfied, beyond a reasonable doubt, that the defendants are guilty."

In People v. Davis, 300 Ill. 226, 133 N. E. 320, in discussing a sentence similar to the last one in the foregoing instruction, the court said:

"This part of the instruction stated no rule of law but directed a verdict of guilty if the jury believed the defendant was guilty, without requiring the finding of any fact and without giving any rule by which they were to be guided in arriving at the conclusion of his guilt. While every fact is not required to be proved beyond a reasonable doubt, certain facts must be so proved, and it is not proper, after advising the jury that every fact need not be proved beyond a reasonable doubt, to direct a verdict of guilty if the jury believe, from the whole evidence, that the defendant is guilty, without informing them what facts must be proved beyond a reasonable doubt to authorize a verdict of guilty."

[10, 11] Finally, this conviction cannot be sustained for the reason that there is no evidence in the record to support a verdict that the defendant is guilty of the crime of receiving stolen property. Before there can be a conviction for receiving stolen property, it must be shown: (1) That the property has, in fact, been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it has actually received the property stolen or aided in concealing it; (3) that the receiver knew that the property was stolen at the time he received it; and (4) that he received the property for his own gain or to prevent the owner from again possessing it. Granting that the evidence justifies the conclusion that the casings and tubes in question were, in fact, stolen and that they were found shortly thereafter in the possession of plaintiff in error, the presumption against plaintiff in error would be that he stole

The judgment is reversed, and the cause is remanded to the circuit court of Stephenson county for a new trial. Reversed and remanded.

HEARD, J., took no part in this decision.

(315 Ill. 99)

ABERDEEN-FRANKLIN COAL CO. et al. v.
CITY OF CHICAGO. (No. 16397.)
(Supreme Court of Illinois. Dec. 16, 1924.)
1. Municipal corporations 57-"City" has
only powers conferred by law.

A "city" is a municipal corporation of statutory creation, having only such limited powers of legislative enactment as are conferred on it by law of its creation.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, City.] 2. Municipal corporations 58 Statutes granting powers strictly construed.

Statutes granting powers to municipal corporations are strictly construed, and any reasonable doubt as to existence of powers must be resolved against municipality. 3. Statutes 51

Material amendment not considered as re-enactment of statute.

Amendment in 1919 of Cities and Villages Act, art. 5, § 1, cl. 93 (Laws 1919, p. 286), could not be considered as a re-enactment of the old statute with the addition of an invalid proviso, where it not only added the proviso, but amended such statute in material respects. 4. Licenses 52-Ordinance must be regulatory to sustain power to license as incident to regulation.

While power to license is incident of power to regulate, and regulatory ordinance may require license and payment of license fee as incident to regulation, to sustain power to license as incident to regulation, ordinance must be regulatory ordinance.

16(2)-Statute held not to authorize city council to license or tax business of keeping coal yards.

Cities and Villages Act, art. 5, § 1, cl. 93, prohibiting keeping of lumber or coal yards within fire limits, does not give city council express authority to license or tax business of keeping coal yards, but only power to regulate same; clauses 54, 66, 75, 78, 100, being inapplicable.

6. Licenses

7(1)-Ordinance held to impose license fee on coal yard solely to raise revenue, and to be invalid.

Ordinance prohibiting keeping of coal yards without license, which was set at $50 for each

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Suit by the Aberdeen-Franklin Coal Company and others against the City of Chicago. Decree for complainants, and defendant ap-its of the city or village: Provided, that this peals. Affirmed.