Goodhue v. People of State

• Decision Date: 30 September 1879
• Citation: 1879 WL 8661,94 Ill. 37
• Parties: CHARLES F. GOODHUEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

94 Ill. 37

1879 WL 8661 (Ill.)

CHARLES F. GOODHUE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Winnebago county; the Hon. JOHN V. EUSTACE, Judge, presiding.

This was an indictment against Charles F. Goodhue, for the crime of embezzlement, found under section 80 of the Criminal Code, which is as follows: “If any State, county, township, city, town, village, or other officer elected or appointed under the constitution or laws of this State, or any clerk, agent, servant or employee of any such officer, embezzles or fraudulently converts to his own use, or fraudulently takes or secretes with intent so to do, any money, bonds, mortgages, coupons, bank bills, notes, warrants, orders, funds or securities, books of record or of accounts, or other property belonging to or in the possession of the State, or such county, township, city, town or village, or in possession of such officer by virtue of his office, he shall be imprisoned in the penitentiary not less than one nor more than fifteen years.” Rev. Stat. 1874, 363.

The following is the substance of the charging part of the several counts:

1. That Charles F. Goodhue, late of the county of Stephenson, on the 16th day of October, in the year of our Lord one thousand eight hundred and seventy-eight, in said county of Stephenson, in the State of Illinois aforesaid, then and there being county treasurer of said county of Stephenson, duly elected in pursuance of the laws of said State of Illinois to said office of public trust in said State, did feloniously and fraudulently embezzle a large sum of money, to-wit, the sum of $4508.37, then and there in possession of such officer by virtue of his said office, contrary, etc.

2. That the said Charles F. Goodhue, late of the county of Stephenson, aforesaid, on the said 16th day of October, in the year of our Lord one thousand eight hundred and seventy-eight, in the county of Stephenson and State of Illinois, aforesaid, then and there being county treasurer of said county of Stephenson, duly elected in pursuance of the laws of said State of Illinois to said office of public trust in said State, did feloniously and fraudulently embezzle a large sum of money, to-wit, the sum of $4508.37, of the value of $4508.37, then and there in the possession of such officer, him, the said Charles F. Goodhue, by virtue of his said, the said Charles F. Goodhue's office, contrary, etc.

3. That the said Charles F. Goodhue was duly elected to the office of county treasurer of the said Stephenson county in November, in the year of our Lord one thousand eight hundred and seventy-seven, for the term of two years, commencing on the first Monday in December, in the year of our Lord one thousand eight hundred and seventy-seven. That the said Charles F. Goodhue afterwards, to-wit, on the said first Monday in December, in the year of our Lord one thousand eight hundred and seventy-seven, the same being the third day of December, in the year of our Lord one thousand eight hundred and seventy-seven, duly qualified and entered upon the discharge of the duties of his said office as county treasurer of said Stephenson county, and continued to hold and occupy said office, and discharge the duties thereof, from the said third day of December, in the year of our Lord one thousand eight hundred and seventy-seven, until the 16th day of October, in the year of our Lord one thousand eight hundred and seventy-eight, when he was removed from said office by the board of supervisors of said Stephenson county, the said board then and there having lawful power so to do, and said Charles F. Goodhue, as such officer as aforesaid, was then and there succeeded in said office by one William W. Hutchinson, who was then and there duly appointed and qualified to fill the vacancy thereof. That while said Charles F. Goodhue was acting as the county treasurer of said Stephenson county, as aforesaid, he, the said Charles F. Goodhue, then and there received, collected and took into his possession as such officer, by virtue of his said office, a large sum of money, to-wit, the sum of $41,199.35, of the value of $41,199.35, and that the said Charles F. Goodhue, of the moneys by him so collected by virtue of his said office, then and there in his possession as such officer, did, at the county of Stephenson aforesaid, on the said 16th day of October, in the year of our Lord one thousand eight hundred and seventy-eight, feloniously and fraudulently embezzle the sum of $4508.37, contrary, etc.

The defendant moved to quash the indictment, on the following grounds: Irregularity in forming grand jury; vagueness of the indictment; that the several counts purport to be for the same offence; that the several counts plead the evidence; that the several counts charge no offence;--which motion the court overruled.

Mr.J. A. CRAIN, and Mr. E. B. SUMNER, for the plaintiff in error:

1. The indictment is insufficient. The averment that the defendant did embezzle, is the averment of a legal conclusion.

As is stated in Kibs v. The People, 81 Ill. 600, the indictment must set out the acts of embezzlement. Embezzlement may be consummated by a variety of acts. The pleader is not allowed to give construction to acts, or aver a conclusion, but must set out the acts themselves, so that the court can judicially see that those acts constitute a crime. Arch. C. P. P. p. 85, Waterman's ed., note 1; Hale P. C. vol. 2, pp. 183, 184; Hawkins P. C. p. 310, § 37; Archibald P. P. p. 86, note 1.

“The indictment must contain a complete description of such facts and circumstances as will constitute a crime.” The indictment should have averred some manner of the embezzlement, as, that he converted the money to his own use. “Did embezzle,” is like the averment, “did unlawfully resist,” which, in Lamberton v. The People, 11 Ohio, 282, was held to be the averment of a legal conclusion, and not of an act; or, like the averment “did attempt to maim,” which was held to be a statement of a legal conclusion, because maiming could be effected by a variety of acts, and this general averment did not name any one act. Com. v. Clark, 6 Grattan, 675. Section 82, Rev. Stat. 1874, p. 360, does not help the pleader in this case, for, while that section does provide that where the property of “any person, bank, incorporated company or co-partnership” shall have been embezzled, it shall be sufficient to allege generally “an embezzlement,”--it is only in such case where the property is laid in some one of these specified owners, if properly even then, that the conclusion of law can be substituted for the acts themselves.

2. The indictment does not name any person as the party injured, or state that the property embezzled belonged to any one.

“The prosecutor or party injured, or any other person named in the indictment, if known, must be described with certainty; if an individual, he must be described by his christian or surname; if a corporation, by their name of incorporation.” Pomeroy's Archibald, 245.

“The object of setting out the name of the party injured is to identify the particular fact or transaction on which the indictment has been founded, so that the accused may have the benefit on acquittal or conviction, if accused a second time.” Pomeroy's Archibald, 245, note 2; ibid. 250, note 1; Willis v. The People, 1 Scam. 399; State v. Irwin, 5 Blackf. 343.

Section 74, Rev. Stat. 1874, p. 360, provides that any person may be guilty of embezzlement and larceny if he shall fraudulently appropriate any ““ property delivered to him.” An indictment would not be good averring this fact and no more; it should aver that such property delivered to him belonged to some ?? erson, and that there was, in reference to it, some person injured.

In an indictment for embezzlement, “unless the pleader is relieved from this exactness by a special statute, the goods and ownership must be set out with the same completeness as in larceny.” 2 Wharton on Crim. Law, (7th ed.) § 1941.

See, also, Thompson v. The People, 24 Ill. 60, as to an indictment under the statute in respect to obtaining goods, etc., under false pretences. 3. The property alleged to have been embezzled is not sufficiently described.

Section 82, Rev. Stat. 1874, p. 360, provides that property embezzled need not be particularly described, provided it be the property of “any person, bank, incorporated company or co-partnership.” Now, in this indictment the property embezzled is not averred as belonging to any such person, bank, corporation or co-partnership; therefore, as the property embezzled is not embraced in this section by the terms of the averment, it must be described as required in an indictment for embezzlement without such a section. This principle is expressly decided in Com. v. Wyman, 8 Metc. 254.

4. As to the evidence: In one of the counts of the indictment there is an averment that the defendant was county treasurer, and embezzled funds, and, besides, the unnecessary averment that he was removed from his office by the board of supervisors because he was found to be a defaulter. This was purely surplusage. No averment upon that subject was necessary. The offence was complete without it. There are two ways in which defendant might take advantage of this: first, by moving, before trial, to strike it out, and second, by objecting to evidence to sustain it.

Defendant did object, but, notwithstanding, the prosecution was permitted to introduce the records of the board of supervisors, not under oath, and res inter alias acta, which, in substance, declared the defendant guilty. This testimony under no circumstances could have been lawful testimony, and under such circumstances it is the duty of the court to grant a new trial. Corbley v. Wilson, 71 Ill. 211; Whitaker v. Wheeler, 44 Id. 441; Marshall v. Adams, 11 Id. 41; Louisville and Nashville Railroad Co. v. Burns, 13 Bush (Ky.) 479.

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