George v. People

• Decision Date: 11 May 1897
• Citation: 47 N.E. 741,167 Ill. 447
• Parties: GEORGE v. PEOPLE.
• Court: Illinois Supreme Court

167 Ill. 447

47 N.E. 741

GEORGE

v.PEOPLE.¹

Supreme Court of Illinois.

May 11, 1897.

Error to criminal court, Cook county; N. C. Sears, Judge.

Charles E. George was convicted of larceny by embezzlement, and brings error. Affirmed.

Magruder, C. J., dissenting.

Wm. E. Hughes and Wm. McPherson, for plaintiff in error.

E. C. Akin, Atty. Gen., for the People.

CRAIG, J.

This was an indictment in the criminal court of Cook county, at the March term, 1896, for embezzlement. The indictment contains three counts. The first two were found under section 75 of the Criminal Code, and the third under section 79. In the first two counts, plaintiff in error, Charles E. George, is charged with the offense of larceny, by embezzlement, of certain property, of the value of $200. It is charged in the third count that the defendants, Charles E. George and Daniel Byrnes, on the 1st day of March, 1896, is attorneys, did fail and refuse to turn over, less their proper charges, upon demand by Tillie Cutta, certain moneys, of the value of $200,-she, said Tillie Cutta, then and there being entitled to receive said money, the same then and there being money collected by them as such attorneys at law,-contrary to the statute, and contra pacem. The offense charged in the third count is a misdemeanor. All of the counts relate to one and the same transaction. It is claimed in the argument that the indictment is bad, and that upon that ground the court erred in denying a motion to arrest the judgment. Two objections are urged against the indictment: First, there was a mistake in the caption of the indictment, in regard to the date it was presented; second, a misjoinder of counts. As respects the first objection, it does appear in the caption of the indictment that the indictment was found at the March term of the criminal court, 1896. But the caption is no part of the indictment, and a mistake in the time therein stated does not vitiate the indictment. 1 Bish. Cr. Proc. § 661; Moore, Cr. Law, §§ 8-108; 1 Chit. Cr. Law, 326; Duncan v. State, 1 Scam. 457. In regard to the second objection,-the misjoinder of counts: The question raised is settled by Herman v. People, 131 Ill. 594, 22 N. E. 471, where it was held that counts for felonies and counts for misdemeanors may be joined in the same indictment, where all the counts relate to the same transaction. The authorities bearing on the question are cited and discussed in the Herman Case, and it will not be necessary to refer to them here. Upon the trial the jury returned the following verdict: ‘We, the jury, find the defendant Charles E. George guilty of larceny in manner and form as charged in the indictment, and we find the value of the property stolen to be $150, and we fix his punishment at imprisonment in the penitentiary. We further find that Charles E. George is about the age of thirty-five years.’ From the verdict it is apparent that the defendant was convicted under the first two counts of the indictment, and upon an examination of the evidence it will be found that the verdict is fully sustained by the evidence. Tillie Cutta commenced a prosecution before a justice of the peace in Cook county against a certain person for bastardy. She met the defendant in the justice's court, and employed him to attend to her case. The case was settled for $150, and the money was paid over to the defendant for the prosecuting witness, Tillie Cutta. The defendant put the money in his own pocket, and declined and refused to pay over any portion of it, but put his client off from time to time with excuses which were without foundation. If the defendant received the money for and on behalf of Tillie Cutta, as her agent, as the evidence shows he did, and fraudulently converted it to his own use, as was proven, we see no reason why he was not properly convicted, under section 75 of the Criminal Code. Kribs v. People, 82 Ill. 425.

But the main ground relied upon to reverse the judgment is that the act of June 15, 1895, entitled ‘An act in relation to the sentence of persons convicted of crime,’ and providing for a system of parole, under which plaintiff in error was sentenced to the penitentiary, is unconstitutional. Sections 1, 2, 5, and 6 of the act are as follows:

‘Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, that every person over twenty-one years of age, who shall be convicted of a felony or other crime punishable by imprisonment in the penitentiary, excepting treason and murder, shall be sentenced to the penitentiary, but the court imposing such sentence shall not fix the limit or duration of the sentence, and the term of imprisonment of any person so convicted and sentenced shall not exceed the maximum term nor be less than the minimum term provided by law for the crime for which the person was convicted and sentenced, making allowance for good time as now provided by law. The release of such prisoner to be determined as hereinafter provided.

‘Sec. 2. The commissioners of any penitentiary in this state shall constitute a prison board for the purposes hereinafter specified.’

‘Sec. 5. The said prison board shall have power to establish rules and regulations under which prisoners within the penitentiary may be allowed to go upon parole outside the penitentiary building and enclosure, but to remain while on parole in the legal custody and under control of the prison board, and subject at any time to be taken back within the enclosure of said penitentiary, and full power to enforce such rules and regulations and to retake and re-imprison any inmate so upon parole is hereby conferred upon the warden, whose order, certified by the clerk of the prison, with the seal of the penitentiary attached thereto, shall be sufficient warrant for the officer named in it to authorize such officer to return to actual custody any conditionally released or paroled prisoner, and it is hereby made the duty of all officers to execute said order the same as ordinary criminal process: provided, that no prisoner shall be released on parole until the said prison board shall have made arrangements, or shall have satisfactory evidence that arrangements have been made for his honorable and useful employment while upon parole, in some suitable occupation, and also for a proper or suitable home, free from criminal influences, and without expense to the board.

‘Sec. 6. It shall be the duty of the warden to keep in communication, as far as possible, with all prisoners who are on parole, and also with their employers, and when, in his opinion, any prisoner has served not less than six months of his parole acceptably, has given such evidence as is deemed reliable and trustworthy that he will remain at liberty without violating the law, and that his final release is not incompatible with the welfare of society, the warden shall make certificate to that effect to the prison board, and the board shall at the next meeting thereafter consider the case of the prisoner so presented, and when said board shall decide that said prisoner is entitled to his final discharge, said board shall cause a record of the case of said prisoner to be made, showing the date of his commitment to the penitentiary,his record while detained therein, the date of his parole, his record while on parole and their reasons for recommending his final discharge. Said record shall be signed by the board and attested by the secretary, with the seal of the penitentiary, and sent to a judge of the court that sentenced said prisoner to the penitentiary. Said judge shall enter an order for the final discharge of said prisoner from further liability under his sentence. On being approved by the governor said order shall constitute a full discharge of said prisoner from further liability under his sentence. But no petition or other form of application for either the parole or final release of any prisoner shall be entertained by the warden or prison board. Nothing in this act shall be construed as impairing the power of the governor to grant a pardon or commutation in any case.’

As has been seen, the jury by their verdict found the defendant guilty of larceny as charged in the indictment, but the jury did not in the verdict fix the time the defendant should be confined in the pentientiary. The court in entering judgment on the verdict sentenced the defendant to the penitentiary, to be confined therein until discharged by the prison board of the penitentiary as authorized and directed by law, provided the term of imprisonment shall no exceed the maximum term for the crime for which the defendant was convicted. It is claimed in the argument that the sentence must be based upon the verdict of a jury, which must fix the time of imprisonment, and in this case the verdict and sentence are in violation of article 2, § 5, of the constitution, which provides, ‘The right of trial by jury as heretofore enjoyed shall remain inviolate.’ The statute of 1845, which was in force in 1870, when the constitution was adopted, and which remained in force until the act in question was passed, in 1895, contained this provision: ‘In all cases where the punishment shall be confinement in the penitentiary, if the case is tried by a jury, the jury shall say in their verdict for what time the offender shall be confined, and the court in pronouncing sentence shall designate what portion of time the offender shall be confined to solitary imprisonment, and what portion to hard labor.’ This provision of the statute conferring upon the jury the right to fix the term of imprisonment of a defendant on trial for a felony, it is contended, in effect became a part of the constitution by that clause, ‘The right of trial by jury as heretofore enjoyed shall remain inviolate.’ We do not concur in that view. The constitution of 1818 provided (section 6, art. 8) ‘that the right of trial by jury shall remain inviolate’; that of 1848 (section 6, art. 13),...