Dreyer v. People

• Decision Date: 19 October 1900
• Citation: 188 Ill. 40,58 N.E. 620
• Parties: DREYER v. PEOPLE.
• Court: Illinois Supreme Court

188 Ill. 40

58 N.E. 620

DREYER

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 19, 1900.

Error to criminal court, Cook county; A. W. Waterman, Judge.

Edward S. Dreyer was convicted under Cr. Code, § 215, of failure, as treasurer of the West Chicago park commissioners, to turn over certain funds to his successor, and he brings error. Affirmed.

Boggs, C. J., and Cartwright, J., concurring in result.

Moran, Mayer & Meyer, for plaintiff in error.

E. C. Akin, Atty. Gen. (Charles S. Deneen and Albert C. Barnes, of counsel), for the People.

WILKIN, J.

This is a writ of error to the criminal court of Cook county to reverse a judgment of conviction against plaintiff in error, under section 215 of our Criminal Code. The indictment was to the February term, 1898, of that court, and consisted of one count. It charges that the defendant was, on and before December 21, 1896, treasurer of the West Chicago park commissioners, and authorized to collect, receive, safely keep, and disburse the moneys, revenues, bonds, warrants, and funds of said corporation, and that as such treasurer, prior to said December 21, 1896, he received of the funds of said park commissioners $316,013.40, which he had failed to pay over to Fred M. Blount, his successor in office, on the latter's demand. On July 26, 1899, counsel for the defendant moved to quash the indictment, but the motion was overruled, and he entered his plea of not guilty. On August 29th he was regularly put upon trial, and on September 2d the following order was entered: ‘This day come the said people, by Charles S. Deneen, the state's attorney, and the said defendant, as well in his own proper person as by his counsel, also come, and also come the jurors of the jury aforesaid, who being now returned in court, and being unable to agree upon a verdict, are thereupon, by order of this court, discharged from further consideration of this cause.’ February 19, 1900, he was again put upon trial, which resulted in this conviction.

It was not denied on the trial that $316,013.40 of the park commissioners' funds came into the hands of the defendant, as its treasurer, which he failed to pay over to his successor on demand, and the only defense attempted to be interposed was that his failure to pay it over was the result of unavoidable loss or accident. The several grounds of reversal now urged by his counsel are as follows: The indictment is fatally defective; the plain requirement of the law was violated in placing the jury in charge of officers not sworn at the time or in the manner prescribed by statute; the defendant has once been tried for the same offense, and the jury arbitrarily discharged when they were about to acquit the defendant; the trial judge admitted evidence not competent to prove the crime charged, and excluded evidence competent as a matter of defense; that statements were made by the trial court prejudicial to the defendant; that erroneous instructions were given on behalf of the people; and that the defendant's instructions were erroneously modified. We will consider these points in a somewhat different order from that in which they are stated in the briefs and argument.

The statute upon which the indictment was found provides that if certain officers having the custody of funds ‘shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust; or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years; provided, such demand need not be made when, from the absence or fault of the offender, the same cannot conveniently be made: and, provided, that no person shall be committed to the penitentiary under this section, unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident.’ Rev. St. 1874, p. 384.

The only objection urged against the indictment under the motion to quash was that it failed to negative the last proviso, namely, that it did not allege that the failure or refusal to pay over the money was not occasioned by unavoidable loss or accident. The rule as stated by this court is that ‘where an act is made criminal, with exceptions embraced in the same clause of the statute which creates the offense, so as to be descriptive of the offense intended to be punished, it is necessary, in the indictment stating the act had been done, to negative the exceptions, so as to show affirmatively the precise crime defined has been committed’; also that ‘there are exceptions to this general rule, as where the exception or proviso be in a subsequent clause of the statute, or if in the same section, and not incorporated with the enacting clause by any apt words of reference, it is, in that case, a matter of defense, and need not be negatived in the pleading.’ Beasley v. People, 89 Ill. 571. Counsel do not disagree as to this being a correct statement of the law as laid down by the uniform current of authority, but it is insisted on behalf of plaintiff in error that the foregoing proviso is embraced in the same clause of the statute which creates the offense, is descriptive of the crime intended to be punished, and is incorporated with the enacting clause, and therefore the indictment should have charged that the failure or refusal was not occasioned by unavoidable loss or accident. The plain language of the statute, in our opinion, refutes this position. The definition of the offense intended to be punished, and the penalty denounced against it, are clearly stated in a complete sentence, wholly independent of either of the succeeding provisos. Although they are in the same section, they are not ‘incorporated with the enacting clause by any apt words of reference.’ The language, ‘if it appears,’ etc., clearly indicates an intention to allow an officer the benefit of such a defense, and not to require the state to allege and prove the negative. The construction insisted upon would practically destroy the efficacy of the law. It would be easy enough to make the allegation, but in many, if not most, cases, it would be impossible to make the negative proof. The motion to quash the indictment was properly overruled.

The next assigned error insisted upon is that the court below refused to sustain the defense of former jeopardy. Conceding that the question was regularly raised on the trial, it was properly overruled. The plea was based upon the theory that by the discharge of the jury upon the first trial without the consent of the defendant he was entitled to be then acquitted, and could not be legally put upon trial a second time. As shown above, the jury was discharged for the reason that it was unable to agree. It had retired to consider of its verdict the day before, about 5 o'clock in the afternoon, and had remained out during the night, and until half past 9 in the forenoon. The question for what causes the jury in criminal trials may be discharged before it has returned its verdict into court, the defendant not consenting, without the trial resulting as jeopardy in bar of another trial, has frequently arisen in the courts, and the decisions thereon are not harmonious. It has never been passed upon by this court. It is true that by the common law, as well as by our statute, it is contemplated that when the jury retires it shall be kept together until a verdict is reached and returned into court; but it needs no reasoning to show that this theory of the law cannot always be carried into effect without defeating justice, and it has long been the settled law that, without the consent of the prisoner, the court has the power to discharge a jury before verdict ‘from necessity,’ and to hold him for another trial. On this proposition the courts agree. The conflict has grown out of a difference of opinion as to what fact or circumstance should be deemed to constitute a necessity for such discharge. It has been held that the causes which create the necessity must fall under one of three heads, namely: (1) Where the court is compelled by law to be adjourned before the jury can agree upon a verdict; (2) where the prisoner by his own misconduct places it out of the power of the jury to investigate his case correctly, thereby obtaining an unfair advantage of the state, or is himself, by the visitation of Providence, prevented from being able to attend to his trial; and (3) where there is no possibility for the jury to agree upon and return a verdict. The courts of a few states-principally Pennsylvania, Virginia, North Carolina, and Tennessee-have held that the failure of a jury to agree merely because they cannot bring their several minds to the same conclusion is not an impossibility to agree within the meaning of the last-named class, but that the failure must result from some physical impossibility, such as the sickness or insanity of some one or more of the jurors; and, of course, such holding leads to the final conclusion that, in the absence of some necessity arising under the second class, no discharge can be ordered for a mere failure to agree upon a verdict until the adjournment of the term at which the trial is had. The more prevalent doctrine, however, is thus stated by Archb. Crim. Prac. & Pl. (volume 1, p. 593): ‘The general rule is that the jury must be kept together from the time they are first charge with the prisoner or defendant until they deliver their verdict, unless the prisoner consents to their being discharged, or for causes occurring in which the judge, from necessity, is obliged to discharge them. If they cannot agree upon their verdict, and they appear not likely to do so, the judge, chairman, or recorder, in the exercise of his discretion, may discharge them as soon as it becomes a matter of necessity, of which he is the judge, and he usually discharges...