Kossakowski v. People
| Decision Date | 17 February 1899 |
| Citation | 53 N.E. 115,177 Ill. 563 |
| Parties | KOSSAKOWSKI v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to criminal court, Cook county; A. N. Waterman, Judge.
Mathew P. Kossakowski was convicted of embezzlement, and brings error. Affirmed.Beach & Beach and C. M. Hardy, for plaintiff in error.
E. C. Akin, Atty. Gen., C. S. Deneen, State's Atty., Henry Olson, Asst. State's Atty., and Joel M. Longenecker, for the People.
This is a writ of error brought to review the judgment of the criminal court of Cook county adjudging the plaintiff in error to be guilty of the crime of embezzlement, and sentencing him to confinement in the penitentiary for the term of three years. The indictment contained 24 counts, but the state's attorney elected to try the plaintiff in error upon but 8 of said counts. These counts alleged the owner of the property to be the American Express Company, and some of them alleged the said express company to be an incorporated company, while other of the counts alleged it to be a joint-stock association, but each of the counts alleged it to be a corporation organized under the laws of the state of New York. It is urged the evidence did not support the allegations as to the corporate existence of the said express company.
It was proven that the American Express Company, at the periods of time when the embezzlement in question occurred, and for many years before, had been transacting the business of an express company in the state of Illinois as a joint-stock association, and that it maintained its general offices in the city of New York, and had a president, treasurer, and secretary at the said home office in said state of New York; that the laws of the state of New York declared that all joint-stock associations having any of the powers and privileges of corporations should be deemed and taken to be corporations, and provided for the incorporation of joint-stock associations. It also appeared said express company engaged in the business, in the state of Illinois and elsewhere, of issuing and selling express money orders, and that the plaintiff in error received from it money orders signed by its proper officers, to be issued and sold by him as an agent of the said company, said orders being valid only when bearing the signature of the plaintiff in error as such agent; that said plaintiff in error executed and delivered to the company receipts for such money orders, one of which is as follows:
We think the existence of the said express company as a joint-stock association under the laws of the state of New York was sufficiently established. In such cases it is only necessary to prove the de facto existence of the corporation, and this may be sufficiently proven without showing that any steps necessary to the creation of a corporation de jure had been taken. ‘If the thing taken is alleged to be the property of a corporation, proof of the de facto existence, by reputation or otherwise, is admissible.’ Hochheimer, Crimes, § 716. In Smith v. State, 28 Ind. 321, the correctness of the following instruction to the jury was called into question, viz.: ‘It is not necessary for the state to prove the articles of association or charter of the Chicago & Great Eastern Railway Company, but it is sufficient to prove by reputation that there is, or was on May 28, 1867, a company known by that name operating such road, and carrying goods, stock, and passengers for hire in its cars running along said company's road.’ The court ruled that the declaration of the instruction that it was sufficient to prove the existence de facto of a corporation by reputation was correct as a legal proposition; and in Reed v. State, 15 Ohio, 217, it was ruled the corporate existence of a bank whose paper is alleged to have been counter-feited may be proved by any one who, of his own knowledge, is acquainted with the fact, or by any one who has seen or handled its notes passing in the community as the notes of such institution, or by general reputation. In Calkins v. State, 18 Ohio St. 366, the former decision of the supreme court of that state in the case of Reed v. State, supra, was referred to approvingly, and the court remarked: ‘And where a person accepts employment from an association claiming and assuming to have a corporate existence, as its clerk, and then, by means of the facilities which his employment and the confidence reposed in him afford, embezzles its property, it is difficult to conceive any principle of justice, public or private, which would be subserved by requiring of the state stricter proof of the corporate existence of the employer of the clerk, or of the owner of the property embezzled, than was given in this case.’ Mr. Wharton, in his work on Criminal Evidence, speaking of the rule that an individual has acted as a public officer is prima facie evidence of his official character, without producing his commission, and other like instances of the admissibility of parol evidence to establish prima facie the existence of facts of which, if true, there should be written or record evidence, says: ‘The same rule has been extended to corporations, it being held unnecessary to prove the charter of a corporation acting and recognized generally as such.’ Whart. Cr. Ev. § 164. In Fleener v. State, 58 Ark. 98, 23 S. W. 1, it was said:
It appeared from the testimony that the said express company assumed to be a joint-stock association and a corporation under the laws of New York, and transacted its business and was known and recognized as such an association. This sufficiently established that it had a de facto existence as an incorporated joint-stock association. The plaintiff in error dealt with it in its de facto capacity, and, as its agent, came into possession of the money orders of the company. It would be a reproach to our criminal jurisprudence to permit him to embezzle said orders, or the proceeds of their sale, and escape punishment therefor upon the ground the company had not the full legal corporate authority to transact business in the capacity in which it was acting, and in which he...
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