Kelley v. People

• Decision Date: 31 March 1890
• Citation: 132 Ill. 363,24 N.E. 56
• Parties: KELLEY v. PEOPLE.
• Court: Illinois Supreme Court

132 Ill. 363

24 N.E. 56

KELLEY

v.PEOPLE.¹

Supreme Court of Illinois.

March 31, 1890.

Error to circuit court, De Witt county; GEORGE W. HERDMAN, Judge.

Edward J. Sweeney, for plaintiff in error.

George Hunt, Atty. Gen., Wm. Booth, State's Atty., of De Witt county, for defendant in error.

MAGRUDER, J.

This is an indictment against the plaintiff in error in the circuit court of De Witt county for an assault with an intent to commit larceny. In the court below the defendant entered a plea of not guilty, but was found guilty by the jury, who fixed his punishment at imprisonment for one year in the penitentiary.Judgment was rendered, and sentence pronounced in accordance with the verdict. There is no bill of exceptions in the record. The chief error assigned is the overruling by the circuit court of the defendant's motion in arrest of judgment. The motion assigns the following reason for the arrest of the judgment: ‘Because the indictment herein charges the defendant with having committed a misdemeanor, and the verdict of the jury found the defendant guilty of a felony.’ The indictment charges that the defendant, on the 2d day of December, 1889, ‘feloniously did make an assault upon one Mary E. Nichols, with intent then and there to steal, take, and carry away the goods and chattels of the said Mary E. Nichols, to-wit, one pocket-book, of the value of one dollar, and divers pieces of silver coin, of the value of two dollars,’ etc. The defendant is claimed to be guilty of a misdemeanor only, and therefore not guilty of an offense punishable by imprisonment in the penitentiary, on the alleged ground that the punishment for assault under our statute is a fine, and the punishment for stealing property of the value of $15 or less is a fine and confinement in the county jail or sentence to labor. But the offense for which the defendant is indicted is neither assault nor larceny, but ‘assault with an intent to commit larceny.’ The latter offense, by the terms of section 23 of division 1 of the Criminal Code, (Rev. St. c. 38, § 23,) ‘shall subject the offender to imprisonment in the penitentiary for a term not less than one year, nor more than fourteen years.’ The words of the indictment, ‘steal, take, and carry away the goods and chattels,’ describe larceny, as that crime is defined in section 167 of division 1 of the Criminal Code. Therefore the indictment charges the prisoner with the crime of assault with intent to commit larceny. Whether the value of the goods stolen is more than $15, or just $15, or less, in either case the crime is larceny. The only difference is that where the value exceeds $15 the punishment is imprisonment in the penitentiary, and where the value does not exceed $15 the punishment is not imprisonmentin the penitentiary. Section 23 of division 1 reads as follows: ‘An assault with an intent to commit murder, rape, mayhem, robbery, larceny, or other felony shall subject the offender to imprisonment in the penitentiary,’ etc. The Revised Statutes of 1845 (section 52, div. 5, c. 30) contained the same language, except that the word ‘confinement’ was used instead of ‘imprisonment,’ and the words ‘or other felony’ were not used. The Revised Statutes of 1845 also provided that, in case the value of property obtained by larceny should not amount to five dollars, the punishment should be imprisonment in the county jail and fine. Section 65, div. 7, c. 30. Manifestly, under the law of this state as it existed in 1845, an assault with an intent to commit larceny was punishable by imprisonment in the penitentiary, whether the value of the property stolen was greater or less than $5. It is also clear that, if the words ‘or other felony,’ had not been inserted in the Revised Statutes of 1874, assault with intent to commit larceny would have been punishable with imprisonment in the penitentiary, whether the value of the property stolen exceeded $15, or equaled, or fell below that amount. But it is claimed that, by the addition of the words ‘or other felony’ in the act of 1874, the legislature evinced the intention of limiting the offense to assault with intent to commit larceny of property exceeding in value $15. It is said that the effect of the use of those words is to define the offense as an assault with an intent to commit a felony only, and that larceny of property whose value equals or falls below $15 is not a felony. The statute, however, does not speak of assault with intent to commit grand larceny, or larceny of the higher grade, as fixed by the value of the goods stolen. It uses the general word ‘larceny,’ which is broad enough to embrace all grades of that offense. If, then, the word ‘larceny’ refers to and includes both grand larceny and petit larceny, and the words or ‘other felony,’ as here used, were intended to describe all the previously named offenses as felonies, it would follow that petit larceny, or the larceny of goods equaling or less than $15 in value, would be designated as a felony. But this construction would be inconsistent with sections 5 and 6 of division 2 of the same act of 1874, where a felony is defined to be ‘an offense punishable with death or by imprisonment in the penitentiary,’ and every other offense is defined to be a misdemeanor. We therefore conclude that the words ‘or other felony,’ in section 23, were intended to designate such other offenses, besides murder, rape, mayhem, robbery, and larceny, as amount to felonies, and that they were not intended to limit the offense of assault with intent to commit larceny to assault with intent to commit that higher grade of larceny which is defined to be felony. The thief who assaults a man on the street with the intention of stealing his purse knows not what is in the purse. His intention in...