Bressler v. People

• Decision Date: 13 August 1886
• Citation: 117 Ill. 422,8 N.E. 62
• Parties: BRESSLER v. PEOPLE.
• Court: Illinois Supreme Court

117 Ill. 422

8 N.E. 62

BRESSLER

v.PEOPLE.

Supreme Court of Illinois.

August 13, 1886.

Error to Lee.

At the rehearing. Petition for rehearing denied March 19, 1886, and order for modification of opinion entered. For former opinion, see 3 N. E. Rep. 521.W. & W. D. Barge, for Plaintiff in error.

The State's Attorney and Geo. Hunt, Atty. Gen., for the People.

SCHOLFIELD, J.

Peter Bressler was indicted by a grand jury of Whiteside county for the crime of larceny. The venue was changed to the circuit court of Lee county, where he was tried and convicted, and sentenced to the peniteniary for the term of one year. He sues out this writ of error, and brings the record of his trial and conviction before us for review.

Before proceeding to the questions arising on the rulings during the progress of the trial, we must pass upon the question, arising in limine, whether the court had jurisdiction to try the case; for, without that jurisdiction, the judgment is a nullity. The statute provided that the term should commence on Monday, the ninth day of February, A. D. 1885. At 2 o'clock in the afternoon of that day, court was opened by one of the circuit judges, in due form of law. An order of court was then made, and entered of record, to the effect that if, at 5 o'clock in the evening of that day, no judge of the court should be in attendance, the sheriff should continue the court until the next morning at 9 o'clock. At the time to which that adjournment was made, no judge of the court being in attendance, the sheriff made proclamation, in pursuance of the order, that the court was adjourned until the next morning at 9 o'clock. At the last-named hour, there was yet no judge of the court present, and at 5 o'clock in the evening of the same day, (the second day of the term,) the judge of the court still being absent, the sheriff made proclamation that the court was adjourned until 9 o'clock the next morning, (the third day of the term,) and posted notices on the door of the court-house of such adjournment. At the last-named hour the judge of the court was present, and court was opened in due form. Bressler then filed a plea, setting up these facts, to the jurisdiction of the court. A demurrer to the plea was filed on behalf of the people, which the court sustained, and adjudged that Bressler should answer over, to which ruling he at the time excepted. Very clearly, the demurrer to the plea was properly sustained. It is provided by section 20, c. 37, Rev. St. 1874, that ‘if, at any time after the opening of court for the term, no judge of the court is present at the time and place of holding court, the sheriff of the county, or his deputy, may adjourn the court from day to day, or, upon the written order of the judge, from time to time, and shall give notice of such adjournment by making proclamation in the court-house, and by notification posted on the door of the court-house.’ The adjournment on the first day was strictly by order of the court, and no notices of that adjournment was therefore required to be posted; and it is not claimed that the adjournment on the second day was not in conformity with the statute, assuming the first adjournment to have been regular.

The larceny charged was of two promissory notes given by the defendant to one Henry Smith. They were both dated December 31, 1883. One was payable October 1, 1884, for $975.76, with interest from date at 8 per cent. per annum, and the other was payable on the first of November, 1884, for $1,603.92, with interest also at 8 per cent. per annum. A payment of $905 had been made and credited on the last-mentioned note, and the sum of $110 had been paid and credited on the other note. Both notes were secured by chattel mortgage. The notes were in possession of Adam Smith, who was a brother of the payee, and a justice of the peace. It is agreed on all hands that on Monday, the twenty-ninth of September, 1884, the defendant was in the office of Adam Smith, in Sterling, and then paid, on the first-named note, a check drawn by Frank Bressler on Galt & Tracy's bank, for $625, the cash upon which was soon after paid by the bank to Adam Smith, and that at that time the possession of both of the notes passed, by some means, from Adam Smith to the defendant. The evidence also agrees in proving that, before the check was paid over, a computation was made of the interest due upon the note, and it was found that $300 added to the amount of the check would overpay that amount by 68 cents; that, after the check was delivered, Smith, not having the 68 cents, handed back to the defendant a dollar, and the defendant then handed Smith 31 cents in change, which Smith accepted in lieu of the 32 cents which was necessary to make the accurate change.

Smith testified that the defendant was in his office in the morning, several times, before the interest was computed and the check paid over, inquiring at each time whether one Sox, to whom he claimed to have sold four colts on the day before for $300, had called; saying, at one time, perhaps the first, that Sox had agreed to meet him there that morning, and pay that sum on the note; that finally, a short time before noon, the defendant concluded to have the computation made and pay over the check, as was done, saying that Sox could pay the $300 when he came, which he expected might be at any moment; that just as they had got through changing the money, and while they were yet standing at the office table, (these notes, with a number of other notes, all of which were pasted together at the corner with mucilage, still being on the table,) August Schwertferger entered the room; that witness then turned from the table, and advanced two or three steps to meet Schwertferger, and they spoke to each other; that just at that time the defendant passed around Schwertferger, and left the room; that the witness, after talking to Schwertferger, turned to his table, took the notes that were still lying there, and put them in a safe, and locked it; that he then went to the bank, and drew the money upon the check, and afterwards went to his dinner; that upon returning to his office he brought the package of notes out of the safe, with the intention of indorsing the payment upon the note, and he then found that the notes were missing; that he immediately employed a constable to go with him to the residence of the defendant, about three and a half miles from Sterling, where, finding the defendant, he demanded of him a return of the notes-speaking loud enough for the defendant to hear him-twice; but the defendant made no answer to him, and, with his son Frank, drove rapidly away in a buggy. On the next day but one, the larger of the two notes was returned to the witness by a person to whom the defendant had delivered it for that purpose.

Schwertferger testified that, as he entered the room at the time mentioned by Smith, he heard the jingling of money, and he observed the defendant standing at the table doing something with the papers there, and that defendant then took something, and went out, passing by the witness; that he put in his pocket what he took.

Sox testified that, about two weeks before the twenty-ninth of September, The defendant wanted the witness to look at some horses and cattle he desired the witness to buy. He informed witness that they were mortgaged, but said that he preferred to sell them at private sale. Witness went and examined the property, but did not then make any purchase. On the Friday next before the twenty-ninth of September, the defendant again called upon the witness for the same purpose, and he then told witness that he wanted to sell to make up $300 to pay to Smith; that on the Sunday next before the 29th, witness bought four colts from the defendant for $300, which he agreed to pay to Smith between that time, i. e., the twenty-eighth of September and the first of October; that the witness met the defendant in Sterling, on Monday, the twenty-ninth of September, on the street just opposite to Smith's office; that defendant asked witness if he had been at Smith's, and, upon being answered in the negative, but that the witness was just going there, he informed the witness that, if agreeable to witness, he (defendant) would like to keep the colts, as he had ‘fixed it with Smith.’

The defendant testified in his own behalf. He testified that he made an arrangement with his son Frank whereby he got $300 from him for the four colts; that he gave the check and the $300 to Smith, received the one dollar, gave back the 31 cents in change, and that Smith then handed him, as he thought, the note for $975.76, tearing it off the others. He denied that Schwertferger was in the room while he was there, and said he met Schwertferger coming in just as he (defendant) passed out of the room. He denied that he told Smith that Sox was to pay him $300; said that he asked if Sox had been in that day, and that, some two weeks before, he spoke to Smith to know if it would be all right if he sold Sox some horses. Defendant further testified that, shortly after getting what he supposed to be the note that he had paid, he delivered it to his son Frank; that Frank, the next day, showed him that he had obtained both notes, instead of one, and that he then took the note for $1,603.92 to Smith's office to return it to him, but Smith was absent, and he then gave it to the party who returned it to Smith.

Frank Bressler corroborated the defendant in respect to the $300 said to have been paid by him for the colts; and Mrs. Rica Stultz, the defendant's housekeeper, corroborated both as to the payment of the $300, which she says Frank paid to the defendant in her presence.

The defendant denied that he heard Smith demand a return of the notes on the afternoon of the twenty-ninth of September, and Frank also denied that he heard such demand. The constable who accompanied Smith corroborated him, and said that he heard him make the demand; and one...