Sykes v. People

• Decision Date: 21 January 1890
• Citation: 23 N.E. 391,132 Ill. 32
• Parties: SYKES v. PEOPLE.
• Court: Illinois Supreme Court

132 Ill. 32

23 N.E. 391

SYKES

v.PEOPLE.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Error to criminal court, Cook county.

MAGRUDER, J., dissenting.

J. A. Sleeper

, for plaintiff in error.

Geo. Hunt, Atty. Gen., and Joel M. Longenecker, State's Atty., ( George N. Stone, of counsel,) for defendant in error.

BAILEY, J.

In this case, James W. Sykes was indicted by the grand jury, in the criminal court of Cook county, for divers offenses against the provisions of section 25 of the ‘Act to regulate public warehouses, and the warehousing and inspection of grain, and to give effect to article 13 of the constitution of this state,’ in force July 1, 1871. 2 Starr & C. St. 1975; Rev. St. (Ed. 1889) c. 114, § 157. The indictment contained 28 counts, but the defendant was tried on the ninth, tenth, and twelfth counts only, and on such trial the jury found him guilty, and fixed his punishment at imprisonment in the penitentiary for the term of two years. The court, after denying the defendant's motion for a new trial, passed sentence in accordance with the verdict; and the defendant now brings the record to this court by writ of error.

In each of the counts upon which the defendant was tried it is alleged that on the 7th day of August, 1886, in the county of Cook, the defendant was a warehouseman of a certain public warehouse in said county, of class ‘C,’ for the storage of grass seeds. The ninth count alleges that on the day above mentioned the defendant, ‘with intent to, and contriving and intending, feloniously, unlawfully, fraudulently, designedly, and deceitfully, to cheat and defraud the Merchants' Loan & Trust Company, the same then and there being a corporation organized and incorporated under and by virtue of the laws of the state of Illinois, did feloniously, falsely, unlawfully, knowingly, and designedly’ make certain pretenses and statements to the cashier of ‘the said the Merchants' Loan & Trust Company, organized and incorporated as aforesaid;’ said pretenses and statements being, in substance, that the defendant was then and there the owner and in possession of 4,500 bags of timothy seed, and that the same was then and there actually in store in said warehouse, and had been by him set apart from his other property in said warehouse; that he had marked and distinguished said 4,500 bags of timothy seed by and with certain marks and brands to identify the same as being the timothy seed described in three certain false and fraudulent warehouse receipts which he then and there proposed to issue, and did issue, to ‘The Merchants' Loan & Trust Company, a corporation as aforesaid,’ as security for the payment of a certain sum of money which the defendant then and there proposed to borrow, and did borrow, from the said ‘The Merchants' Loan & Trust Company, a corporation as aforesaid;’ that said three false and fraudulent warehouse receipts were each of them then and there good, valid, and genuine warehouse receipts for the property therein described, said warehouse receipts being in the words and figures following: ‘Warehouse receipt. No. 2,048, J. W. Sykes & Co.'s public warehouse, of class ‘C,’ for the storage of grass seeds, 98 & 100 Michigan avenue. Chicago, Ill., August 26, 1885. Received from Merchants' Loan & Trust Co., in apparent good order, into our store as above, twenty-two hundred bags of timothy seed, marked thus: 1,000 bags marked ‘32,’ 800 bags marked ‘33,’ and 400 bags marked ‘34,’ deliverable to the order hereon of the Merchants' Loan & Trust Co., upon surrender of this receipt and payment of storage. Loss or damage by the elements, heat, leakage, shrinkage, ratage, fire, etc., at owners' risk. Storage paid for six months. Rates of storage, 2 cents per bag for first month, and 2 cents per bag each following month, or fraction thereof. J. W. SYKES & CO.' The other two warehouse receipts were of the same tenor and effect as the foregoing, except that they covered the residue of the 4,500 bags of timothy seed above mentioned. Said count further alleges that the defendant, by said warehouse receipts, then and there falsely pretended that said 4,500 bags of timothy seed were then in store in said warehouse at the time of issuing said receipts; that said warehouse receipts were then and there produced, issued, and delivered by the defendant to said cashier for the purpose of inducing him to loan, transfer, and deliver to the defendant a large sum of money, to-wit, $15,500, the money and property of said ‘The Merchants' Loan & Trust Company, a corporation as aforesaid,’ on a credit of two months; and that said cashier, relying upon and believing said representations, and being deceived thereby, was then and there induced, by reason thereof, to loan, transfer, and deliver to said defendant said $15,500, on a credit of two months from the date above mentioned. Said count further alleges, in substance, that the defendant, at the time of making said representations, in truth and in fact was not the owner of said 4,500 bags of timothy seed, and did not have or hold said timothy seed in said warehouse, and had not set apart from his other property in said warehouse said 4,500 bags of timothy seed, and had not marked and designated said quantity of timothy seed by and with marks and brands to mark and distinguish the same as being the timothy seed described in said false and fraudulent warehouse receipts; and that the defendant, at the time of making said several pretenses, well knew the same to be false and fraudulent; and so it was alleged that the defendant, being then and there a public warehouseman, in manner and form aforesaid, falsely, fraudulently, and feloniously did issue warehouse receipts for property not actually in store at the time of issuing said receipts, contrary to the form of the statute, etc. The tenth and twelfth counts, which are substantially alike, allege that the defendant, on the 7th day of August, 1886, at said county, being a warehouseman as aforesaid, ‘did falsely, fraudulently, and feloniously issue to a certain corporation, to-wit, the Merchants' Loan & Trust Company, then and there being organized and incorporated under and by virtue of the laws of the state of Illinois, three certain false and fraudulent warehouse receipts for certain property, to-wit, forty-five hundred bags of timothy seed, which said property he, the said James W. Sykes, warehouseman as aforesaid, then and there, and thereby, falsely pretended was actually in store in said public warehouse, so described as aforesaid, at the time of issuing said receipts.’ Said counts set forth said receipts in extenso, and then allege, in substance, that the defendant issued the same with intent thereby then and there to prejudice, damage, and defraud the said ‘The Merchants' Loan & Trust Company, organized and incorporated as aforesaid,’ whereas, in truth and in fact, there was not actually in store, at the time of issuing said warehouse receipts, at said public warehouse, the said 4,500 bags of timothy seed; and that the defendant, then and there being a warehouseman, then and there, in manner and form aforesaid, falsely, fraudulently, and feloniously did issue warehouse receipts for property not actually in store at the time of issuing said receipts, contrary to the form of the statute, etc.

The principal ground upon which the plaintiff in error now seeks to obtain a reversal of the judgment is that there is a material variance between the true name of the corporation shown by the evidence to have been defrauded by the issuing of said warehouse receipts and the name of said corporation as the same is alleged in the indictment. The evidence tended to show that said corporation, at the date of said warehouse receipts, and for several years prior thereto, was known, and had been doing business, under the name of ‘The Merchants' Loan & Trust Company.’ The state's attorney, however, for the purpose of proving the due organization and incorporation of said company under the laws of this state, as alleged in the indictment, read in evidence the charter of said corporation, being a private act of the general assembly of this state, entitled ‘An act to incorporate the Merchants' Savings, Loan & Trust Company,’ approved January 28, 1857. Priv. Laws 1857, p. 82. Said act declares that certain persons therein named, and their associates and successors, shall be a body politic and corporate, by the name and style of ‘The Merchants' Savings, Loan & Trust Company,’ and confers upon said corporation certain powers, and among them banking powers, viz., to receive money on deposit, to discount according to bank usage, to buy and sell exchange, to grant and purchase annuities, and to issue letters of credit, and other commercial obligations, provided the same shall not be in the similitude of bank-notes, designed to circulate as money. Reed v. People, 125 Ill. 592, 18 N. E. Rep. 295. The state's attorney also read in evidence the record of a certain meeting of the stockholders of said corporation called and held on the 26th day of April, 1881, under the provisions of the act of March 26, 1872, providing for the change of the names of corporations, (1 Starr & C. St. 624; Rev. St., Ed. 1889, c. 32, § 50,) at which a resolution was adopted that the name of ‘The Merchants' Savings, Loan & Trust Company’ be changed to ‘The Merchants' Loan & Trust Company.’

It is not pretended that the proceedings for changing said corporate name were not in all respects in conformity with the provisions of the act of March 26, 1872; the contention being that said act can have no application to a banking corporation. Said act was passed subsequent to the adoption of the constitution of 1870, and section 5 of article 11 of said constitution provides as follows: ‘No act of the general assembly authorizing or creating corporations or associations with banking powers, whether of issue, deposit, or discount, nor amendments thereto, shall go in to...