Johnson v. People of State

• Decision Date: 22 January 1885
• Citation: Johnson v. People of State , 113 Ill. 99 (Ill. 1885)
• Parties: JOHN T. JOHNSONv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

113 Ill. 99

JOHN T. JOHNSON

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 22, 1885.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Johnson county; the Hon. D. M. BROWNING, Judge, presiding.

Messrs. GREGG & PARISH, for the plaintiff in error:

The indictment being for a common law larceny, to sustain it the proof must have shown that defendant took the coin with intent to steal the same at that time. The court, however, instructed the jury that it was not necessary for the People to prove that defendant, at the time he took possession of the coin, intended to steal it; but if the proof showed that he came into possession of the coin lawfully, as bailee, without intention at the time to steal it, and afterward converted the same to his own use with intent to steal, they should find him guilty as charged.

The instruction conflicts with the rule that the allegations and proof must agree, and is in conflict with Kibs v. People, 81 Ill. 600, Welsh v. People, 17 Id. 339, and Stinson v. People, 43 Id. 397.

Where a statute makes a conversion by a bailee larceny, and the bailee guilty of larceny as if the original taking was felonious, the relation of bailee must be stated in the indictment. Bishop on Statutory Crimes, secs. 419-421; People v. Smith, 23 Cal. 280; People v. Jersey, 18 Id. 337; People v. Poggi, 19 Id. 600; People v. Peterson, 9 Id. 313; People v. Cohen, 8 Id. 42.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

At the November term, 1883, of the Johnson county circuit court, John T. Johnson was convicted, and sentenced to the penitentiary for two years, for the larceny of five twenty-dollar gold pieces, the property of one Charles Grattan. The present writ of error is brought to reverse that conviction.

The evidence tends to show the money charged to have been stolen was voluntarily delivered by the owner to the accused for safe keeping, the former being on a spree, and considerably intoxicated at the time. The indictment under which the conviction was had, was in the ordinary form, charging the defendant with a common law larceny, merely. It was contended on behalf of the accused, in the court below, and the claim is renewed here, that the facts proven do not establish a larceny at common law, and that consequently there can be no conviction under the indictment as framed, even conceding the evidence makes out a case against him as bailee, under the 170th section of the Criminal Code. If it be conceded as a matter of fact that the evidence does not establish a larceny at common law, but at most a mere statutory larceny, then we agree with counsel for the accused the conviction was improper, for no principle of criminal pleading is better settled than that an indictment for a mere statutory offence must be framed upon the statute, and that this fact must distinctly appear upon the face of the indictment itself. That it shall so appear, the pleader must either charge the offence in the language of the act, or specifically set forth the facts constituting the same. It sometimes happens, however, that the language of a statute creating a new offence does not describe the act or acts constituting such offence. In that case the pleader is bound to set them forth specifically. This elementary rule is laid down in all standard works on criminal law, and is fully recognized by this court. 1 Wharton on Crim. Law, secs. 164, 372; Kibs v. The People, 81 Ill. 599.

The 170th section of the Criminal Code, just referred to, is as follows: “If any bailee of any bank bill, note, money, or other property, shall convert the same to his own use, with intent to steal the same, or secretes the same with intent so to do, he shall be deemed guilty of larceny.” This provision of the statute, according to a well settled construction given to similar statutes, both in this country and in England, was not intended to apply to any cases which are larcenies at common law. (2 Archbold's Crim. Proc. & Pleading, 574; 2 Wharton on Crim. Law, sec. 1905.) Hence all cases falling within it are mere statutory larcenies, and are therefore subject to the rule of pleading applicable to statutory offences, as above stated.

Assuming the accused to be guilty of either the statutory or the common law offence, it was the duty of the jury to determine, as matter of fact, from the evidence before them, which of the crimes had been committed. On the other hand, it was the duty of the court, if requested, to instruct the jury as to all matters of law arising out of the evidence, calculated to aid the jury in the performance of this and other duties. On the trial of the cause the court declined to instruct the jury, at the instance of the accused, that there could be no conviction, under the indictment as framed, for the statutory offence. The ruling of the court in this respect, of course, was erroneous, if there was evidence before the jury upon which to base the instruction. But before further discussing the facts, it will be proper to state, as near as may be, the essential elements that enter into the crime of larceny at common law, and to particularly point out wherein it differs from the statutory offence.

Larceny, by the common law, is defined to be “the felonious taking and carrying away of the personal goods or property of another.” From this definition it follows that every larceny necessarily includes a trespass, for a trespass to personal property is nothing more than the unlawful and forcible taking of the goods of another without such felonious intent; and as trespass is an injury to the possession only, it logically and legally follows that no one in the lawful possession of goods can commit a larceny of them, for it were idle and absurd to talk of one committing an injury to his own possession,--and such is the well settled doctrine of the common law. One, however, may have the actual custody of goods, and yet not have the possession. Thus, goods on the premises of the owner, to be used by himself and family, including his servants, are always to be deemed in the possession of the owner, although the ordinary duties of the servants and other members of the household require them, from time to time, to handle, occupy or use them, or even to sell or dispose of them to others. So where chairs, beds, etc., are occupied by a guest, whether in a hotel or in a private family, or where plates or other articles are used by one at the table of another, or where the owner delivers a chattel to another to be examined or used for some temporary purpose in the presence of the owner, the same rule applies. In all these cases, and in all others analogous in principle, the possession remains with the owner, and those having the temporary use or occupancy of the property are deemed, in law, to have the mere custody of it, as contradistinguished from the possession. But where the owner of a chattel delivers it to one, other than to a mere servant, in trust, upon a contract, express or implied, that the latter will faithfully execute the trust, the rule is different. In such case, which is one of ordinary bailment, the possession as well as the custody of the chattel passes to the bailee...