15 N.E. 46 (Ill. 1888), Quinn v. People

Citation:15 N.E. 46, 123 Ill. 333
Opinion Judge:[123 Ill. 337] MULKEY, J.
Party Name:QUINN v. PEOPLE.
Attorney:[123 Ill. 335] W. H. Boyer and F. M. Youngblood, for plaintiff in error. No appearance for the State.
Case Date:January 20, 1888
Court:Supreme Court of Illinois
 
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15 N.E. 46 (Ill. 1888)

123 Ill. 333

QUINN

v.

PEOPLE.

Supreme Court of Illinois

January 20, 1888

Error to circuit court, Saline county; S. C. CONGER, Judge.

Indictment against John Quinn for the larceny of a horse. At the trial defendant was found guilty, and sentenced to confinement for 10 years in the penitentiary. Defendant brings error.

MAGRUDER, J., dissenting.

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[123 Ill. 335] W. H. Boyer and F. M. Youngblood, for plaintiff in error.

No appearance for the State.

[123 Ill. 337] MULKEY, J.

At the September term, 1887, of the Saline circuit court, John Quinn was tried, convicted, and sentenced to the penitentiary for 10 years on a charge of larceny and embezzlement, and the record of his conviction is now before us for review. The subject of the alleged larceny and embezzlement was a certain horse, the property of Sylvester Whitehead, a resident of Johnson county, which had been taken up as an estray by Stephen Straub in the adjoining county of Saline. The indictment contains four counts. The first two are for larceny; the other two, for embezzlement. The first and third lay the property in Whitehead; the second and fourth lay it in Straub. The defendant was convicted of larceny on the second count.

It appears from the evidence that while the horse was in the possession of Straub as an estray the accused and a young man by the name of Monroe went to Straub's house, a few miles distant from Harrisburg, the county-seat, called for the horse, claimed him as the property of Monroe, and proposed to take him away. Straub would not consent to this, but agreed to meet them next morning with the horse at Harrisburg for the purpose of settling the matter.

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The parties accordingly met next morning in Harrisburg at the hotel where Quinn and Monroe had staid overnight; Straub being accompanied by his wife; and having the horse with them. After some conversation between the parties, and the payment by Quinn to Straub of $6.75, amount of charges claimed to be due on account of the posting of the horse, Quinn 3 Monroe, without making any proof of their claim, succeeded in getting possession of the horse, and took him over into Franklin county, where they swapped him to William Hindman for another.

As the accused was convicted upon the second count, which charges the property in Straub, it would only be necessary to [123 Ill. 338] notice the evidence so far as it relates to that count, and as it is confined within very narrow limits, it will be more satisfactory to set it out in its entirety. It consists namely of the testimony of Straub and witness Warfield. The substance of it is stated in the abstract as follows:

Stephen Straub: 'Live south-east of Harrisburg, and lived there in November, 1884. At that time I took up and posted a roan horse with four white feet. * * * In the fall of 1885 two men came to my house after the horse. I showed the horse to them. The young man went up to the horse, and said this is my horse, etc. Quinn said they would have to take the horse off. * * * I told them I would bring the horse to town next morning. My wife and I brought him here next morning, and went to Warfield's house and asked him where the men were. He said he was at the hotel, and we took the horse to the hotel. The men were eating their breakfasts. We then went to Baker's corner with the horse, and soon after the two men, Quinn and the young man, came where we were, and asked us what the expenses of posting the horse had been. My wife told him $6.75. The young man asked Quinn to pay the money, which he did, paying my wife $6.75. The young man asked if the horse had been fed this morning. She said, 'No;' and asked if we would object to taking him to the livery stable, and having him fed. She said, 'No.' They went off towards the livery stable. We went to Warfield's office, and waited an hour or two for him to come. When Warfield came, he said they must file affidavits, and we then went to the livery stable, and the men were gone. Cross-examination. * * * The men paid my wife for taking the horse up. The young man requested Quinn to pay the charges for him. They said nothing to me about proving the horse.'

R. N. Warfield: 'I remember of old man Straub posting a horse before me. Had conversation with Quinn, who said he had visited Straub, and he (Straub) agreed as soon as his wife came home to bring the horse here, and asked me if Straub [123 Ill. 339] would run the horse off. I told him no; he was a Dutchman, and his wife is the boss, and wears the breeches, and when she came home they would bring the horse in. I prepared affidavits that evening; they wer never signed or sworn to. I learned from some one Quinn had stopped at the McFarlin House, on the west side of the square. The next morning Straub and his wife came in about sunrise with the horse. He and his wife came to my house, and wanted affidavits, but I afterwards saw them unhitch the horse from the east side of the square,--I had told him where Quinn was stopping,--and go off in the direction of the McFarlin House. I afterwards went to my office and found Straub and wife there, and told them they must have the fellows swear to the horse. They then went to the livery stable, and returned and reported them gone.'

With the exception of certain facts and circumstances bearing on...

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