Quinn v. People

• Decision Date: 20 January 1888
• Citation: 15 N.E. 46,123 Ill. 333
• Parties: QUINN v. PEOPLE.
• Court: Illinois Supreme Court

123 Ill. 333

15 N.E. 46

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.W. H. Boyer and F. M. Youngblood, for plaintiff in error.

No appearance for the State.

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. 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 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 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 the question ‘of felonious intent,’ this is about all the evidence tending to support the second count in the indictment. We do not understand, as is suggested by counsel for plaintiff in error, that the offense charged in the second count ‘is an offense different from that of larceny at the common law, or from that of larceny as defined by the 215th section of the Criminal Code. The indictment in this case is not, strictly speaking, founded upon the 224th section of the Criminal Code as is supposed by counsel. That section does not attempt to define the crime of larceny. It simply fixes the punishment for horse-stealing, and therefore operates as a limitation on section 216, which defines the punishment of larceny. The present indictment is framed under the 215th section of our Statute, which defines larceny substantially as it is defined by the common-law, and the indictment is clearly for a common-law offense. This being so, it follows that the case is to be governed by common-law principles. Upon the evidence before us, we think the jury were justified in reaching the conclusion, as they must have done, that the accused, and young man, who accompanied him to Straub's house, were acting in concert, and that the claim here set up to the horse was a mere pretense to cover a deliberate purpose to steal him. Assuming this to be so, it follows that if they had taken the horse without Straub's consent, they would have been guilty of larceny, and the property in the horse might well have been laid either in Straub or Whitehead. That the former parted with the temporary custody of the horse is conceded.

But counsel for plaintiff in error insist that there was a change of possession as contradistinguished from mere custody. Still this would not be sufficient to exonerate the accused, for the reason the claim to the horse as found by the jury was a fraud and pretense, and there was a present purpose to steal him. On the facts the only plausible ground of defense is that Straub, in accepting the $6.75, the amount of charges on the horse, and permitting the accused to take him from the hotel, thereby intended to part absolutely, not only with the possession, but with all title and interest whatever in the property, and such we understand to be the claim of counsel. If the facts were simply that the horse was brought to the hotel, the money paid over to Straub, the horse unconditionally delivered by him to the accused, and that the latter took him away, there would be much force in the claim that Straub thereby intended to part with all title and claim to the horse. But the case suggested is not the one before us. It is evident Straub knew that no one had the right to take the horse from him without making proof of ownership. He had previously been told by Warfield, the justice, that if any one came after the horse he would have to be brought to town before he could properly be surrendered, and on this ground, doubtless, Straub refused to let the parties take him when at his house. The justice states: ‘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,’ etc.

It is very clear that not withstanding they had received the posting fees, and had consented that the horse might be taken to the stable for the purpose of being fed, they did not intend that the accused and his confederate should take the horse away until they had made the necessary affidavits of ownership. This is conclusively shown by the fact that, after all this had occurred, Straub and wife went to the justice's office, and waited an hour or so for him to come, not knowing the accused had already gone with the horse. The latter also must have understood that Straub did not intend to part with the horse till the necessary proofs were made; otherwise they would not have asked permission, as they did not take him to the stable to have him fed. Why did they propose paying the charges on the horse before the proofs were made? Was it to lull Straub and his wife into security while they, under the pretense of going to the stable to feed the horse, might get away with him? It would have been time enough to pay charges after establishing their claim to him. It is more than likely that Straub and wife regarded this promptness on their part to pay the charges as an evidence of their good faith and purpose to fully comply with the law before taking off the property. Taking all these circumstances into consideration, we think the jury were warranted in reaching the conclusion, as they must have done, that there was no intention on the part of Straub to part with the horse altogether until after the necessary proofs were made. It is...