Hix v. People

• Decision Date: 11 October 1895
• Citation: 157 Ill. 382,41 N.E. 862
• Parties: HIX v. PEOPLE.
• Court: Illinois Supreme Court

157 Ill. 382

41 N.E. 862

HIX

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Error to circuit court, Iroquois county; C. B. Starr, Judge.

Indictment of John Hix for larceny. Defendant was convicted, and he brings error. Reversed.Morgan & Orebaugh and C. H. Payson, for plaintiff in error.

M. T. Moloney, Atty. Gen., for the People.

BAILEY, J.

The defendant was indicted at the November term, 1894, of the circuit court of Iroquois county, for the crime of larceny; the indictment charging him with feloniously stealing, taking, and carrying away one fat hog, of the value of $12, the goods and chattels of Thorn Downey. On trial the jury found the defendant guilty, and fixed his punishment at imprisonment in the penitentiary for the term of one year. Sentence having been pronounced against him in accordance with the verdict, he now brings the record to this court by writ of error.

The first point raised by counsel for the defendant is that the prosecution failed to prove that the hog alleged to have been stolen was the property of Thorn Downey, as charged in the indictment. The prosecuting witness, when on the stand, testified that his name is Thornton J. Downey, but on cross-examination he testified that everybody called him Thorn Downey. While in cases of this character it is essential to a conviction that the name of the person whose property is alleged to have been stolen should be proved as laid in the indictment, it is sufficient to prove that he is well or usually known by the name, although it may not be his true name. We think there was no failure of proof in this respect.

Again, it is claimed that the property stolen is shown by the evidence to have belonged to Downey and one Loveless jointly. If that were a fact, there would be a fatal variance between the indictment and the proof. But we do not think that the evidence shows that the hogs stolen were the joint property of Downey and Loveless. The testimony of Downey tends to show that he and Loveless had made a joint purchase of 75 hogs, but there is no evidence that there was any general partnership in the business of dealing in hogs between them, or that they had any joint interest in any hogs other than the 75 above mentioned. Downey's testimony tends to show that he alone, and without the consent of Loveless or any conference with him, concluded to buy enough more hogs to make two car loads, with the intention that, if the venture turned out to be profitable, Loveless might share in the profits. The hogs alleged to have been stolen were among those thus purchased by Downey, but there is no evidence that, at the time they were stolen, loveless had assented to their purchase, or that any interest therein had become vested in him. Under these circumstances, for all the purposes of this prosecution, they must be regarded as the individual property of Downey.

It is next contended that the verdict of guilty is not warranted by the evidence. The evidence tending to charge the defendant with the larceny is mainly circumstantial, but there was sufficient evidence to make the matter of his guilt or innocence a fair question for the jury; but, as the judgment must be reversed on other grounds, we refrain from expressing any opinion as to the weight of the evidence, leaving that matter to the consideration of another jury, uninfluenced by anything we might say on that subject.

We are of the opinion that there was error in several of the instructions given to the jury at the instance of the prosecution.

The first instruction given was as follows: ‘The court instructs the jury that larceny is the felonious taking and carrying away the personal goods of another.’ As defined by the statute, ‘larceny is the felonious stealing, taking and...