Baysinger v. People

• Decision Date: 25 January 1886
• Citation: Baysinger v. People, 5 NE 375, 115 Ill. 419 (Ill. 1886)
• Parties: BAYSINGER v. PEOPLE.
• Court: Illinois Supreme Court

115 Ill. 419

5 N.E. 375

BAYSINGER

v.PEOPLE.

Supreme Court of Illinois.

Filed January 25, 1886.

Error to Jackson.

F. E. Albright, for plaintiff in error.

R. J. McElvain and W. A. Schwartz, for defendant in error.

MULKEY, C. J.

On the twenty-ninth day of August, 1885, D. H. Baysinger, the plaintiff in error, was tried and convicted in the Jackson county circuit court for a violation of section 216 of the Criminal Code; the jury fixing the term of his confinement in the penitentiary at one year. The accused was formally sentenced in conformity with the verdict, and the present writ of error is to reverse that sentence.

Numerous errors are assigned on the record, some of them presenting objections of a highly technical and clearly not tenable, others are of a more serious, character. It appears that the defendant had been elected to the office of supervisor of Grand Tower township, in said county, and that subsequently, by a vote of the electors of the county, township organization was abolished, and that his office as such supervisor, by operation of law, thereupon ceased; that upon his office being thus determined, the county authorities made various ineffectual efforts to get possession of the supervisor's book being the same in which the defendant kept his accounts with the town, and which, it is claimed, would show him to be in arrears with the town $107.05. These efforts having failed to secure a return of the book to the clerk of the county court, the defendant was thereupon presented to and indicted by the grand jury under the section of the statute above stated.

The only question about which we have had any serious doubt is the sufficiency of the indictment. The section upon which it is founded is as follows:

‘If any person whose office shall be abolished by law * * * shall willfully and unlawfully withhold or detain from his successor, or other person entitled thereto by law, the records, papers, documents or other articles of property appertaining or belonging to such office, * * * the person so offending shall be imprisoned in the penitentiary not less than one year nor more than five years.’

This section, however, must be considered in connection with section 25, c. 139, Rev. St., which provides that ‘when township organization is discontinued in any county, the records of the several towns shall be deposited in the county clerk's office,’ etc. The section obviously imposes the duty upon all town officers who have in their possession any such records, pertaining to their respective offices, to deposit them in the county clerk's office. Section 104 of same chapter requires a supervisor to ‘keep a just and true account of the receipts and expenditures of all moneys which shall come into his hands, by virtue of his office, in a book to be provided for that purpose at the expense of the town, and said book shall be delivered to his successor in office.’ From this section it is clear that the book mentioned in the indictment is one of the records of the town, and that it was the duty fo the defendant, on the discontinuance of township organization, to return it to the office of the clerk of the county court. The duty to return it was imperative and absolute, and in no sense dependent upon a demand or request from any quarter.

In the light of the several provisions of the statute above cited, we will now turn our attention to the indictment. The first count alleges, in language not to be misunderstood, the following facts, namely: That the defendant was holding the office of supervisor in and for the town of Grand Tower, etc., on the first day of January, 1883; that on that day his said office was abolished by law; that the defendant, so being supervisor, kept a book, which was a part of the records of the town; that he was the lawful custodian of said book, and that the same contained an account of the receipts and expenditures of all moneys which came into his hands by virtue of his office as supervisor of the town of Grand Tower; that the defendant ‘did then and there feloniously, willfully, and unlawfully withhold and detain said book from the office of the county clerk of the said county of Jackson and state of Illinois, the said office of county clerk then and there being the lawful depository of said book.’ A motion to quash was sustained as to the second count, and the third is substantially like the first. The first and third counts, which were sustained by the court, are in some respects very inartificially drawn, yet, on a careful consideration of them, we think they severally contain all the facts essential to a good indictment under the statute.

The concluding averment in the first count which is set out in haec verba in the above summary of what that count contains, is the one that has given us most trouble and given rise to most serious doubts. It will be observed the statutory offense consists in the defendant's willfully and...