Herman v. People

• Citation: 22 N.E. 471,131 Ill. 594
• Parties: HERMAN et al. v. PEOPLE.
• Decision Date: 31 October 1889
• Court: Illinois Supreme Court

131 Ill. 594

22 N.E. 471

HERMAN et al.

v.PEOPLE.

Supreme Court of Illinois.

Oct. 31, 1889.

Error to criminal court of Cook county.

M. Salomon, for plaintiffs in error.

George Hunt, Atty. Gen., for the People.

BAKER, J.

Annie Herman, Charles Busse, and William Sickman, plaintiffs in error, were indicted in the criminal court of Cook county, and, upon trial and conviction before the court and a jury, were sentenced to the penitentiary; Herman and Busse for five years each, and Sickman for four years. The indictment contained 11 counts, but, as pending the trial there was a nolle prosequi of the sixth, seventh, eighth, ninth, and eleventh counts, and the case was submitted to the jury only upon the first, second, third, fourth, fifth, and tenth counts, it will be necessary to refer only to these latter counts. The first, second, and third counts are based upon section 46 of the Criminal Code, as amended by the act approved June 16, 1887, and in force July 1, 1887. Laws 1887, p. 167; Rev. St. Ill. (Ed. 1889,) c. 38, § 46. The first count charges a conspiracy by false pretenses, etc., to induce Catherine Sievers to have illicit criminal intercourse; the second charges a conspiracy to entice and take her away for the purpose of prostitution; and the third a conspiracy to entice and take her away for the purpose of concubinage. The punishment fixed by said amended section 46 for a violation of its provisions is imprisonment in the penitentiary not exceeding five years, or a fine not exceeding $2,000, or both. These three counts are for misdemeanors; for the rule in respect to offenses made punishable by our statute by imprisonment in the penitentiary, or fine, or both, is that they are misdemeanors and not felonies. Lamkin v. People, 94 Ill. 501;Baits v. People, 123 Ill. 428, 16 N. E. Rep. 483. The fourth and fifth counts are predicated upon section 1 of the Criminal Code, (Rev. St. c. 38, § 1.) The one charges an enticement and taking away for the purpose of prostitution, and the other an enticement and taking away for the purpose of concubinage. The punishment fixed for a violation of this section 1 is imprisonment in the penitentiary not less than one nor more than ten years. The tenth count is based upon section 2 of ‘An act to prevent the prostitution of females,’ approved June 17, 1887, and in force July 1, 1887. Laws 1887, p. 170; Rev. St. (Ed. 1889,) c. 38, § 57 c. Said tenth count charges that plaintiffs in error, by force, false pretenses, and intimidation, detained and confined said Catherine Sievers in a room against her will for purposes of prostitution, etc. The punishment provided by the statute for a violation of this section 2 is imprisonment in the penitentiary for not less than one nor more than ten years. It will thus be seen that, under our statute, these fourth, fifth, and tenth counts charge felonies. The verdict returned by the jury at the trial was as follows: ‘We, the jury, find the said defendants guilty in manner and form as charged in the indictment, and fix the punishment of the defendants Annie Herman and Charles Busse at imprisonment in the penitentiary for the term of five years each, and fix the punishment of the defendant William Sickman at imprisonment in the penitentiary for the term of four years.’ Upon this verdict the plaintiffs in error were sentenced to the penitentiary for the terms allotted to them respectively. The evidence and the instructions of the court are not preserved by a bill of exceptions. Only two questions arise upon the record. One of these is, is there a misjoinder of counts? and the other, is the verdict sufficiently explicit to sustain the judgment of the court?

Plaintiffs in error contend that, as three of the counts are for felonies, and the other three for misdemeanors, they are improperly joined; and that their motions to quash the indictment, and to compel the people to make an election, should have prevailed; and that it was error to deny such motions. It was a principle of the English law, and the rule has been adopted in some of our states, that there can be no conviction for a misdemeanor upon an indictment for a felony, even where the allegations of the indictment include such misdemeanor. The reason for the rule was that persons charged with misdemeanors had certain advantages at their trials, which were not allowed to those arraigned for felony, and it was deemed unjust to suffer the too heavy allegation to take from them these privileges. But the practice of withholding any substantial privilege from a person indicted for felony which is allowed to one indicted for misdemeanor does not obtain in this country; and therefore in many of the states it is the practice to permit convictions for misdemeanor on indictments for felony where the latter includes the former. 1 Bish. Crim. Law, (5th Ed.) §§ 804, 805. It is the established doctrine in this state that, where a defendant is put upon his trial for a crime which includes an offense of an inferior degree, he may be acquitted of the higher offense, and convicted of the lesser. Carpenter v. People, 4 Scam. 197;Beck with v. People, 26 Ill. 500;Prindeville v. People, 42 Ill. 217;Yoe v. People, 49 Ill. 410;Earll v. People, 73 Ill. 329;Reynolds v. People, 83 Ill. 479;Ruth v. People, 99 Ill. 185;Kennedy v. People, 122 Ill. 649, 13 N. E. Rep. 213. In 1 Bishop's Criminal Procedure, (2d Ed.) §§ 445, 446, it is stated in substance that, according to the English practice, and the practice prevailing in most of our states, there cannot be a conviction for a misdemeanor on an indictment for felony; that if we examine the reasons upon which the rule rests we shall see the result to be that, in states where it prevails, a count for a misdemeanor and a count for a felony cannot be joined in the same indictment; but that, in states where there can be a conviction for misdemeanor on an indictment for felony, counts for felony and misdemeanor may, under some circumstances, be properly joined, as where both counts relate to the same transaction. In Wharton's Criminal Pleading and Practice, §§ 288, 289, it is said: ‘An indictment may also contain a count at common law, and another under a statute; nor does it vary the case that one offense is a felony and the other a misdemeanor. * * * Indictments will be sustained which join larceny with conspiracy to defraud, both based on the same transaction; and a felony with a misdemeanor forming distinct stages in the same offense.’ In the late case of State v. Stewart, 9 Atl. Rep. 559, (decided by the supreme court of Vermont,) it is said: ‘Although authorities can be found that lay down the rule that felonies and misdemeanors, or different felonies, cannot be joined in the same indictment, still the rule in this and most of the states is otherwise. It is always and everywhere permissible for the pleader to set forth the offense he seeks to prosecute in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. If the counts cover the same transaction, though involving offense of different grade, the court has it in its power to preserve all rights of defense intact.’ See, also, Stevick v. Com., 78 Pa. St. 460; Hunter v. Com., 79 Pa. St. 503; Hutchison v. Com., 82 Pa. St. 472; Hawker v People, 75 N. Y. 487; Crowley v. Com., 11 Metc. 575; ...