Kibs v. People of State

• Decision Date: 31 January 1876
• Parties: JOHN G. KIBSv.THE PEOPLE OF THE STATE OF ILLINOIS
• Court: Illinois Supreme Court

81 Ill. 599

1876 WL 10053 (Ill.)

JOHN G. KIBS

v.THE PEOPLE OF THE STATE OF ILLINOIS

Supreme Court of Illinois.

January Term, 1876.

WRIT OF ERROR to the Circuit Court of Kane county; the Hon. HIRAM H. CODY, Judge, presiding.

This was an indictment against John G. Kibs, for larceny, as at common law. The defendant was convicted, and sentenced to the penitentiary for two years.

Mr. J. F. FARNSWORTH, and Mr. B. F. PARKS, for the plaintiff in error.

Mr. JAMES K. EDSALL, Attorney General, for the People. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

It is not claimed by the State that the defendant is otherwise guilty than under the 74th section of the Criminal Code, entitled “Embezzlement,” which is as follows: “Whoever embezzles or fraudulently converts to his own use, or secretes, with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny.”

The indictment is for larceny, simply, as at common law.

The uniform construction of similar acts, both in this country and in England, is, “that the indictment must set out the acts of embezzlement, and then aver that so the defendant committed the larceny.” 2 Bishop's Criminal Procedure, § 281; 2 Wharton's Criminal Law, (7th ed.) § 1940; 1 Chitty's Criminal Law, (ed. of 1841) 281, 282, 283; 3 Waterman's Archbold on Practice, Pleading and Evidence in Criminal Cases, p. 446, 1, 2, 3, 4, 5, 6, and notes.

The defendant's fiduciary character, which is the distinguishing feature between embezzlement and larceny, must be specially averred. Com. v. Simpson, 9 Metc. 13; People v. Cohen, 8 Cal. 42; Com. v. Smart, 6 Gray, 15; Com. v. Wyman, 8 Metc. 247; Com. v. Merrifield, 4 Id. 468; People v. Tyron, 4 Michigan, 665; People v. Allen, 5 Denio, 76; Rex v. Johnson, 3 M. and S. 539; Rex v. Creighton, Russ. and Ry. 62. And this rule, instead of being changed, is expressly recognized by § 82 of the Criminal Code (R. L. 1874, p. 364,) which provides that, in indictments in cases under the statute relating to embezzlements, “it shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion, or taking with such intent, of funds of such person, bank, incorporated company,” etc., “to a certain value or amount, without specifying any particulars of such embezzlement.”

We are referred, however, by the Attorney General, to Welsh v. The People, 17 Ill. 339, and Stinson et al. v. The People, 43 Id. 397, as settling the law in this State, that evidence of an embezzlement will authorize a conviction for larceny.

This is a misapprehension as to the effect of what was decided in those cases.

The convictions there were for larcenies, as at common law, and no question was raised or discussed under the statute relating to embezzlements, and it was held, in both cases, the evidence authorized the jury in finding that the defendant, in obtaining possession of the property, in the first instance, did so with a felonious intent. The distinction between larceny and obtaining goods under false pretenses was the turning point in each case, and it was thus pointed out in Stinson's case: “If the owner of goods alleged to have...