Mr. Justice Dunn
delivered the opinion of the court:
An information of two counts was filed against Sam Castree in the county court of Winnebago county, charging him in the first count with having on February 1, 1923, unlawfully sold intoxicating liquor, and in the second with unlawfully possessing intoxicating liquor on the same date. He was tried and found guilty on both counts, and on March 26, 1923, his motions for a new trial and in arrest of judgment were overruled and he was sentenced to 150 days’ imprisonment in the county jail and to pay a fine of $100 and costs. He sued a writ of error out of this court on the ground that a constitutional question is involved.
Before the information was filed the State’s attorney had made a complaint, under oath, to two justices of the peace of the county and had caused a search warrant to be issued to search the store building occupied by the plaintiff in error, known as 1427 Rock street, in the city of Rockford, for intoxicating liquor, under which two deputy sheriffs had searched his residence and found and taken away three jugs of intoxicating liquor. The affidavits for the search warrant stated that the reasons for the affiant’s belief that intoxicating liquor was unlawfully possessed and kept for sale in the premises were “information from responsible person who has seen intoxicated persons coming from said premises.” Before the trial the plaintiff in error filed a petition, verified by his oath, stating that 1427 Rock street is not a store building but is a residence, and he conducted a small store in the room of the house, which fronts and has its entrance on Lane street while the entrance to his residence is from Rock street; that there is a door from the house leading into the room which he uses as a store, and there is no other store room in the dwelling and that all the remainder of such dwelling house is used solely as a dwelling; that the officers having the warrant searched not only the store room but went through the door into his dwelling and searched it in the night time, and the intoxicating liquor which they seized was not found in the store but was taken from his house. The prayer of the petition was that the court investigate the question and that the property alleged to have been taken under the search warrant be impounded and not used in evidence against the plaintiff in error. The court denied the petition, and on the trial admitted in evidence, over the objection of the plaintiff in error, the proceedings under the search warrant, the search of the dwelling as well as the store room, the finding of intoxicating liquor in the dwelling, and the jugs and liquor which were seized. The action of the court in denying the motions of the plaintiff in error and admitting the evidence of the officers as to the result of their search raises the principal question in the case, which is, Is evidence obtained by an unreasonable search conducted by officers of the State admissible on the trial of the owner of the premises searched on a criminal charge, upon the ground that it was' obtained in violation of his constitutional right?
Section 6 of article 2 of the State constitution 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 probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.” Not all searches are prohibited, but unreasonable searches, only. Warrants may issue but not without probable cause, supported by affidavit, and only to search the place particularly described. A search without a warrant is an unreasonable search, and a search of a place not described is without a warrant and is unreasonable. The search of the plaintiff in error’s dwelling under a warrant particularly describing a store was unreasonable, and therefore was an invasion of the right of security guaranteed him by section 6 of the bill of rights. The fourth amendment to the Federal constitution is in practically the same words. It was one of the ten amendments ratified by the legislatures of the various States after having been submitted by the first Congress in response to the recommendation of the States ratifying the constitution, and the importance with which the right which it guarantees has been regarded is indicated by the various decisions of the Supreme Court sustaining it and the language of one of the most recent of them: “It would not be possible to add to the emphasis with which the framers of our constitution, and this court in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 id. 383, and in Silverthorne Lumber Co. v. United States, 251 id. 385, have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the constitution by these two amendments. [The fourth and fifth.] The effect of the decisions cited is, that such rights are declared to be indispensable to the ‘full enjoyment of personal security, personal liberty and private property that they are to be regarded as of the very essence of constitutional liberty, and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, — the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly overzealous executive officers.” Gouled v. United States, 255 U. S. 298.
It is the general rule that the admissibility of evidence is not affected by the source from which it comes or the illegality of the means by which it was procured. The rule is stated in Gindrat v. People, 138 Ill. 103, as follows: “Courts, in the administration of the criminal law, are not accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right.” The last clause is important and is vital to the question now under consideration, for to receive the evidence in this case would be subversive of the plaintiff in error’s constitutional right to be secure in his person, houses, papers and effects against unreasonable searches and seizures. In the Gindrat case it was not so, for the person who obtained the evidence there was only a private detective acting under a private employment having no official authority, and it was held, in accordance with the universal holding of the Federal courts in similar cases, that section 6 of article 2 of our constitution is a limitation on the powers of the State government and has nothing to do with the unauthorized acts of private individuals having no authority or color of authority from the State. That provision in a constitution is intended to protect the individual from official oppression and not from private trespass or criminal violence. The opinion in the Gindrat case makes plain the difference, in pointing out the clear distinction between that case and the case of Boyd v. United States, supra. In other cases in this court the rule has been applied that where a defendant’s property or papers have been by artifice or deceit, or unlawfully, by stealth or force, obtained by an individual not acting under color of authority from the State, the court will determine the admissibility of the evidence without inquiring into the method by which it was procured. Siebert v. People, 143 Ill. 571; Trask v. People, 151 id. 523; People v. Paisley, 288 id. 310.
In People v. Brocamp, 307 Ill. 448, the question was presented for the first time in this court of the admissibility in evidence of stolen property which had been obtained by an unlawful search and seizure conducted by virtue of their office by State officers charged with the prosecution of crime. In that case, without a warrant such officers invaded the defendant’s premises and without authority of law searched for and seized certain property alleged to have been stolen. It was a case within the exception mentioned in the Gindrat case, subversive of the defendant’s constitutional right, and we held that while the court, on objection to the admission of evidence, will not stop the trial of the case and enter upon the trial of a collateral issue as to the source from which the evidence was obtained, where the defendant makes timely application, before the beginning of the trial, for an order directing the return to him of the property or papers unlawfully seized, the court should hear and determine the question of the legality of the seizure, and if it erroneously refuses to do so and receives the property in evidence against the defendant over his objection, it is an error for which the judgment of conviction must be reversed. This decision was in accordance with the decisions of the Supreme Court of the United States and of many of the States of the Union.
In Boyd v. United States, supra, the court held that the enforced production, through an order of the court, by a defendant of his private papers, to be used in evidence against himself in a criminal case, was equivalent to an unreasonable search and seizure. The intimate relation between the fourth amendment, which prohibits unreasonable searches, and the fifth, which declares that no person shall be compelled in a criminal case to be a witness against himself, was considered, and it was held that an actual entry upon premises and a search for and seizure of papers were not necessary to constitute an unreasonable search and seizure within the meaning of the fourth amendment, but a compulsory production of a person’s private books and papers to be used against him in -a criminal proceeding was within the spirit and meaning of the amendments. It was said in the opinion: “We are further of the opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure, and an unreasonable search and seizure, within the meaning of the fourth amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon.”
In Adams v. New York, 192 U. S. 585, the court, without deciding the contention that the fourteenth amendment made the exemption from unreasonable searches and seizures and from compulsory self-incrimination provided by the fourth and fifth amendments to the constitution of the United States privileges and immunities of citizens of the United States of which they could not be deprived by the action of the States, decided that the rule that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue, was applicable in that case. A search warrant had been issued for certain policy slips, (slips of paper used in the gaming device of playing policy,) in executing which the officers took not only the policy slips but certain other papers, which were received in evidence against the defendant on the trial against his objection. No objection was made to the testimony of the officers holding the search warrant, as to the policy slips. The objection was to receiving in evidence certain private papers, and it was not made in an attempt to resist the unlawful seizure of the private papers but arose only upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the defendant. Upon the objection thus made it was held there was no violation of the constitutional guaranty of privilege from unlawful search or seizure.
In Weeks v. United States, supra, an indictment was returned against the defendant in the district court of the United States, and he was arrested without a warrant by a police officer. Other police officers had gone to the house of defendant, and, getting a key through a neighbor, entered the house, searched the defendant’s rooms and took possession of various papers and articles found there, which were afterward turned over to the United States marshal. Later in the same day the police officers returned with the marshal, and the marshal searched the defendant’s room .and carried away certain letters and envelopes found in the drawer of a chiffonier. Neither the marshal nor the police officers had a search warrant. Before the trial the defendant filed a petition for the return of the papers, books and other property which had been taken, alleging that they were improperly held by the district attorney, marshal and clerk, in violation of the defendant’s rights under the constitution ; that the district attorney intended to use them at the trial of the defendant, and by reason of these facts the defendant’s rights under the constitution had been and would be violated unless the court ordered the return of the papers. Upon consideration of the petition the court ordered such property as was not pertinent to the charge against the defendant returned but denied it as to pertinent matters, reserving the right to pass upon the pertinency at a later time. The district attorney, in obedience to the order, returned part of the property taken and retained the remainder, to be used in evidence on the trial. After the jury had been sworn, and before any evidence had been taken, the defendant again presented his petition for the return of the property, which was denied by the court. When the papers were offered in evidence during the trial the defendant objected on the ground that they had been obtained without a search warrant and by breaking open his home, in violation of the fourth and fifth amendments to the constitution of the United States, and the objection was overruled. The Supreme Court of the United States reversed the judgment for the error in denying the petition for the return of the property and receiving the papers in evidence, saying in the course of the opinion: “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the fourth amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles, established by years of endeavor and suffering, which have resulted in their embodiment in the fundamental law of the land. * * * In Adams v. New York, 192 U. S. 585, this court said that the fourth amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law, acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it. (Boyd case, 116 U. S. 616.) To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the constitution intended for the protection of the people against such unauthorized action.” In regard to the Adams case, supra, it was said: “This doctrine thus laid down by the New York Court of Appeals and approved by this court, that a court will not, in trying a criminal cause, permit a collateral issue to be raised as to the source of competent testimony, has the sanction of so many State cases that it would be impracticable to cite or refer to them in detail. Many of them are collected in the note to State v. Turner, 136 Am. St. Rep. 129, 135, et seq. After citing numerous cases the editor says: 'The underlying principle of all these decisions obviously is, that the court, when engaged" in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence. (People v. Adams, supra.) Such an investigation is not involved, necessarily, in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent thereof.’ It is therefore evident that the Adams case affords no authority for the action of the court in this case when applied to in due season for the return of papers seized in violation of the constitutional amendment. The decision in that case rests upon incidental seizure made in the execution of a legal warrant and in the application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony competent in a criminal case comes.”
In Silverthorne Lumber Co. v. United States, supra, an indictment was returned in the district court of the United States against the two Silverthornes, father and son, who were arrested and detained in custody for several hours. While they were so detained representatives of the department of justice and the United States marshal, without any authority, went to the office of their company and took all the books, papers and documents found there to the office of the district attorney. An application was made to the district court for a return of what had thus been unlawfully taken, which was opposed by the district attorney so far as he had found evidence against the defendants, and it was stated that the evidence was before the grand jury. The district attorney caused to be issued an invalid subpoena for certain documents relating to the charge in the indictment. The Silverthornes refused to obey the subpoena and an order of court to produce the books and documents of the company before the grand jury, to be used in regard to alleged violation of the statutes of the United States by them, on the ground that the order of the court infringed the rights of the parties under the fourth amendment to the constitution. The opinion of the court states: “It must be assumed that the government planned, or at all events ratified, the whole performance. Photographs and copies of material papers were made, and a new. indictment was framed based upon the knowledge thus obtained. The district court ordered a return of the originals but impounded the photographs and copies. Subpoenas to produce the originals then were served, and on the refusal of the plaintiffs in error to produce them the court made an order that the subpoenas should be complied with, although it had found that all the papers had been seized in violation of the parties’ constitutional rights.” Upon a refusal to obey this order the court fined the Silverthorne Lumber Company $250 and ordered Frederick W. Silverthorne to be imprisoned until he should purge himself of the contempt. The court said: “The government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had. The proposition could not be presented more nakedly. It is, that although, of course, its seizure was an outrage, which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the constitution covers the physical possession but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the fourth amendment to a form of words. (232 U. S. 393.) The. essence of a provision forbidding the acquisition of evidence in a certain way is, that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed. The numerous decisions like Adams v. New York, 192 U. S. 585, holding that a collateral inquiry into the mode in which evidence has been got will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding, as is explained in Weeks v. United States, 232 U. S. 383.”
The case of Gouled v. United States, supra, also holds that the taking, without force, from the house or office of one accused of crime of a paper belonging to him, of evidential value only, by ■ a representative of any branch or subdivision of the government of the United States, is a violation of the fourth amendment to the constitution and the admission of such paper is a violation of the fifth amendment. In Amos v. United States, 255 U. S. 313, it is held that property seized in the search of a private home by government agents without a warrant of any kind, in plain violation of the fourth and fifth amendments of the constitution, should have been returned to the owner on his petition and should not have been received in evidence against him. Both these cases also hold that the rule in the Adams case that the courts will not stop the progress of the trial of a criminal case to inquire whether evidence offered, otherwise competent, was lawfully or unlawfully obtained, has no application where it becomes apparent during the trial that there has been an unconstitutional seizure of property of the accused, and the court should exclude such property, and any testimony relating thereto given by the government agents who made the unlawful seizure, on motion of the accused made after both property and testimony were introduced in evidence against him. The same rule announced in these decisions of the Supreme Court of the United States has been announced and followed by the Supreme. Courts of many of the States. Atz v. Andrews, 94 So. (Fla.) 329; State v. Myers, 211 Pac. (Idaho) 440; Callender v. State, 136 N. E. (Ind.) 10; Youman v. Commonwealth, 189 Ky. 152; State v. Marxheusen, 204 Mich. 559; Tucker v. State, 128 Miss. 211; State v. Hyde, 248 S. W. (Mo.) 920; State v. District Court, 59 Mont. 600; Gore v. State, 218 Pac. (Okla.) 545; Hughes v. State, 145 Tenn. 544; Town of Blacksburg v. Bean, 104 S. C. 146; State v. Pridemore, 116 S. E. (W. Va.) 756; Hoyer v. State, 193 N. W. (Wis.) 89; Wiggins v. State, 206 Pac. (Wyo.) 373.
There are many decisions of State courts which hold the evidence obtained by an illegal search and seizure, in violation of the constitutional right of the defendant, admissible in evidence against him. Many of them are based on the proposition that the court will not stop the trial to investigate the collateral issue as to the manner in which the evidence was procured, and follow the case of Adams v. New York, supra, in that particular. Others, however, take the ground that the court will not make any inquiry as to whether the constitutional right of the defendant has been violated, but will leave him to pursue such remedies as the law gives him against the officers or other persons who have committed the injury. We prefer to adhere to our own decisions and those of the Supreme Court of the United States and of the Supreme Courts of the States ’ which agree with them, as founded upon the better reason.
In our country it has' always been the rule that every person accused of crime must be proved guilty beyond a reasonable doubt before he can be convicted, and upon his trial, is entitled to the benefit of the presumption that he is innocent of the crime with which he is charged until he is proved guilty by the evidence beyond a reasonable doubt, and upon such trial the indictment is no evidence of his guilt. Our State constitution guarantees to every person charged with crime, — and it makes no distinction between the guilty and the innocent, — the right to a trial by a jury of twelve men, to be confronted by the witnesses against him, face to face, not to be compelled to give evidence against himself, and to be secure in his person, house, papers and effects against unreasonable search and seizure. The framers of the Federal constitution, as originally presented, did not include in it these provisions, but they were added on the demand of the States to which it was submitted for adoption. They were then deemed necessary for the protection of the individual against the oppressive action of the government, not only of the indefinite aggregation of authority which has its seat at the capital, but of every official who administers a part of the functions of government. They were adopted not to enable the guilty to escape the consequences of their crime nor only to be availed of by the innocent, but they were regarded as essential to the protection of every person against whom a charge of crime was made, from the arbitrary, tyrannical and unlawful conduct of the representatives of the government. A consideration of the origin, history and use of writs of assistance in England, of their use in this country, and the evolution of the fourth amendment to the Federal constitution, manifests the importance of this safeguard of the citizen against unreasonable searches and seizures of his person or property, and the necessity that it shall not be frittered away by the courts by a narrow and illiberal construction and a willing blindness and indifference to its violation. The language of the Supreme Court of Tennessee in Hughes v. State, supra, meets with our approval: “The State, having through its executive representatives produced the evidence of a violation of the law by one of its citizens by means prohibited by the constitution, cannot be permitted, through its judicial tribunal, to utilize the wrong thus committed against the citizen to punish the citizen for his wrong, for it was only by violating his constitutionally protected rights that his wrong has been discovered. It is no answer to say that it matters not how a citizen’s sins have been found out. Security from unlawful search is the right guaranteed to the citizen, even for the discovery of the citizen’s sins. This right we must protect, unless we may with impunity disregard our oath to support and enforce the constitution. The experience of our forefathers with unlawful searches and seizures was deemed by the people who framed the constitution sufficient to warrant the provision by which, in instances, even the guilty might escape detection and punishment. We are not to be understood as holding that all evidence obtained by unlawful means is inadmissible, but only where, in cases such as we have here, the evidence offered has been produced by violating the constitutional protection against unlawful searches and seizures.”
The plaintiff in error objects to the sufficiency of the second count of the information. No motion to quash it was made. The written motion in arrest of judgment set forth several distinct reasons for arresting the judgment, none of which questioned the sufficiency of the information. There is no assignment of error questioning the counts. In this condition of the record the objection is not before us for determination.
After the evidence had been heard and both sides had •rested, the court permitted the People to introduce and examine Guy Holcomb, a witness who gave damaging testimony in chief, against the plaintiff in error’s objection to his examination at that time. No excuse was shown for the failure to examine him when the People’s other evidence in chief was introduced. The prosecution ought not, with knowledge of important testimony at its command, to close its case without introducing it, and then, after the defendant has introduced his testimony, be permitted to open up its case anew and introduce evidence in chief which it could have produced "at the proper time but withheld. The examination of this witness ought not to have been permitted without some reason shown for the failure to produce him while the People were introducing the evidence in chief.
On the trial the People introduced in evidence a bottle of wine which had been taken in the search of the plaintiff in error’s home. He had been tried and found guilty in November, 1922, of possessing intoxicating liquor and testified that the wine was in his possession prior to his former conviction. He offered in evidence so much of the record of the former proceeding as showed that a jury was sworn and evidence heard upon a count charging him with unlawful possession of intoxicating liquor, limiting his offer to the sole purpose of showing former jeopardy. The People then offered so much of the "remainder of the record as showed that he had been found guilty in the former proceeding, and it was admitted over his objection. It is contended that this was error. The error was in admitting a part of the former record on behalf of the plaintiff in error. The part of the record which he offered was not competent, alone, to show former jeopardy. Even after the jury had been sworn, the trial completed and the cause submitted to the jury, if for good cause, such as failure to agree or the sickness of a juror, the judge should discharge the jury without a verdict, the prisoner could not plead former jeopardy on a second trial for the same offense. O’Donnell v. People, 224 Ill. 218.
The judgment will be reversed and the cause remanded.
Reversed and remanded. -