Ker v. People of State

• Decision Date: 19 May 1884
• Citation: 110 Ill. 627,51 Am.Rep. 706,1884 WL 9921
• Parties: FREDERICK M. KERv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

110 Ill. 627

1884 WL 9921 (Ill.)

51 Am.Rep. 706

FREDERICK M. KER

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. ROBERT HERVEY, and Mr. C. STUART BEATTIE, for the appellant:

Leaving the question of the treaty out of consideration, the prisoner could not set up the manner in which he was brought within the jurisdiction of the court, as a reason why he should not be held in custody to answer to the indictment. Ex parte Scott, 9 Barn. & Cress. 446; The State v. Brewster, 7 Vt. 118; The State v. Smith, 1 Bailey, (S. C.) 283; Dow's case, 18 Pa. St. 37; The State v. Ross & Mann, 21 Iowa, 467; The People v. Rowe, 4 Park. Cr. 253; Lagrare's case, 14 Abb. (N. S.) 343; 9 Wharton on Crim. Pl. & Prac. 27. Treaties of the United States are the law of the land, and bind the judges in every State. U. S. Const. art. 6, sec. 2.

A person extradited can be tried only for the extradited offence. Adriance v. Lagrave, 59 N. Y. 110; United States v. Caldwell, 8 Blatchf. C. C. 131; Blandford v. The State, 10 Texas Ct. of App. 635.

We contend that the prisoner could not be taken from Peru in any other mode than under the treaty, and consequently the court acquired no jurisdiction, and that the act of Congress of 1867 protected the prisoner from being captured in violation of a treaty. Cooley's Const. Lim. p. 16, notes, and p. 21, note 1; The People v. Curtis, 50 N. Y. 321; The People v. Brady, 56 Id. 182; In re White, 49 Cal. 434; In re Cannon, 47 Mich. 981; Commonwealth v. Hawes, 13 Bush, 697; Jones v. Leonard, 50 Iowa, 106.

Also, that there was a variance between the allegation and proof as to the ownership of the property. Hogg v. The State, 3 Blackf. 326; 2 Greenleaf on Evidence, sec. 22; Rev. Stat. chap. 84, sec. 12.

The court should have required the prosecution to elect for what act out of the many they would seek a conviction. Kribs v. The People, 82 Ill. 425.

Only one crime can be charged in an indictment, except for a few statutory misdemeanors, although the pleader may allege the offence in as many ways as he desires, provided he pleads them all as felonies or all as misdemeanors. Lyons v. The People, 68 Ill. 275; Beasley v. The People, 89 Id. 578.

Although section 82 of the Criminal Code has declared that a certain class of embezzlements may be pleaded generally, that has not changed the rule of evidence. Goodhue v. The People, 94 Ill. 37.

It is necessary to support the verdict that the evidence should show that the stolen property had been delivered to Ker as a bailment, under section 74, or that he had gotten it before the conversion, by virtue of his employment, under the 75th section. The proof shows clearly that Ker only had access to the money and bonds of the bank,--not even charge, say nothing of possession.

The verdict can not be sustained for two reasons: First, the offences are not in the words of the statute; and second, because being larceny under section 167, and at common law, they are not within the intent of the statute. There can be no crime, under sections 74 and 75, when the original taking is felonious, because the statute applies only to cases where the original taking was lawful, but a subsequent conversion is made. 2 Wharton on Crim. Law, (7th ed.) 1905.

Taking property from the actual or constructive possession of the master by a servant, is larceny. 2 Wharton on Crim. Law, (7th ed.) 1924; 2 Archbold's Crim. Plead. 560, et seq.; The People v. Sherman, 10 Wend. 298; The People v. Dalton, 15 Id. 581; Lœwenthal v. The State, 32 Ala. 589.

The statutes in relation to embezzlement were passed solely and exclusively to provide for cases which larceny at common law did not include,--hence, nothing that was larceny at common law is larceny under the embezzlement statutes. Kribs v. The People, 81 Ill. 599; 2 Wharton on Crim. Law, 1905.

Mr. LUTHER LAFLIN MILLS, and Messrs. SWETT, HASKELL & GROSSCUP, for the People:

It will not avail one charged with crime, that the means and force by which he was brought within the jurisdiction of the court were illegal. Rex v. Marks, 3 East, 157; Ex parte Kraus, 1 Barn. & Cress. 258; Ex parte Scott, 9 Id. 446; The State v. Smith, 12 S. C. 430; The State v. Brewster, 7 Vt. 118; Dow's case, 18 Pa. St. 37; The People v. Rowe, 4 Park. Cr. 253; Ex parte Coupland, 26 Texas, 328; The State v. Ross, 21 Iowa, 467; United States v. Caldwell, 8 Blatchf. 131; Adriance v. Lagrave, 59 N. Y. 110; United States v. Lawrence, 13 Blatchf. 306. The court will not look into the question how the accused was captured. Ex parte Scott, 9 Barn. & Cress. 446; The State v. Smith, 12 S. C. L. 283; The State v. Brewster, 7 Vt. 118; The People v. Rowe, 4 Park. Cr. 253. See, also, cases above cited.

The statutes of this State defining embezzlement do not follow the common law definitions. Under our statutes the same acts may be both embezzlement and larceny, and the fact that the acts proved constitute larceny at common law, does not prevent the act from being embezzlement. The statutes of this State create the crime of embezzlement independently of the common law, and any act that comes within the meaning of the statute is embezzlement, irrespective of the common law definition. Cases based upon statutes differently framed can have no bearing.

While the legal possession of the moneys, etc., was in the firm of Preston, Kean & Co., the actual possession was in all who had access to the vaults, and who at all times could put their hands upon the money and securities.

There was no error in refusing to require the prosecution to elect upon which act of embezzlement they should proceed, for the reason that the evidence submitted did not show that there were separate acts of embezzlement. It was a question of fact if the whole amount had been embezzled at one time or at different times, and the court properly submitted that question to the jury. The People v. McKinney, 10 Mich. 95; Bishop on Crim. Proc. 460, note; Rex v. Dunn, Car. Cr. L. (3d ed.) 82.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It appears from the record before this court, that at the February term, 1883, of the Criminal Court of Cook county, the grand jury presented, in open court, an indictment against Frederick M. Ker, which contained four counts, in the first of which he is charged with embezzlement as bailee; in the second, with embezzlement as a clerk; in the third, with larceny as at common law; and in the fourth, with receiving stolen property. In the several counts, the money, funds and securities alleged to have been embezzled and stolen are alleged to be the personal goods and property of David Preston, Samuel A. Kean and Elisha Gray, a co-partnership firm under the name of Preston, Kean & Co. On the 13th day of October, 1883, defendant, on being arraigned, filed a plea to the jurisdiction of the court over his person, the effect of which was to ask immunity from prosecution on the indictment then pending against him, for the reasons set forth in his plea. To that plea a general demurrer was sustained, and defendant was, by the court, required to plead over. Against the protest of defendant that he was entitled to immunity from prosecution for the offences alleged against him in the indictment, on account of the matters set forth in his plea, and because he refused to plead over, the court entered a plea of not guilty for him. On the trial the jury found defendant guilty of embezzlement, as charged in the indictment, and fixed the term of punishment at ten years in the penitentiary. A motion for a new trial entered by defendant was overruled, and the court pronounced judgment on the verdict, and defendant brings the case to this court on error.

One ground of error relied on with much confidence is the decision of the court sustaining the demurrer to defendant's plea calling in question the right or jurisdiction of the court to proceed with the trial against him,--or, what is the same thing, it is insisted it was error in the court not to grant him immunity from prosecution. Of course, the demurrer admits the facts alleged in the plea, and there can be no controversy as to what they are. Shortly stated, the principal facts are, that upon the written request of the Governor of Illinois, the President of the United States issued an extradition warrant, directed to the government of the republic of Peru, for the surrender of defendant, under the treaty of our government with that government, and named therein Henry G. Julian as messenger to receive defendant from the authorities of Peru. The crime of larceny, with which defendant stood charged, is one of the offences specified in the treaty for which a party should be surrendered, and it was specified in the President's warrant as the crime for which his surrender was demanded. On the same day the executive warrant was issued, the Secretary of State at Washington made a written request upon the United States Consul acting at Lima, to procure the executive of Peru to surrender defendant to Julian, under the treaty between the United States and Peru of September 12, 1870, which, it is averred, was and is the only treaty in force between the two governments. It is then averred no request was ever made by the United States Consul at Lima, or by Julian, or any other person, upon any of the authorities or diplomatic agents of the government of Peru, for the surrender of defendant, in compliance with the President's warrant, nor was any consent or authority given by the authorities or diplomatic agents of Peru, to Julian or to any other person, to arrest and remove defendant from Peru, for any cause, and that on the 3d day of April, 1883, while defendant was domiciled at Lima, in Peru, Julian, with the aid of persons whose names are unknown, without any authority or warrant from the authorities or diplomatic agents...