Kotter v. People

• Decision Date: 19 June 1894
• Citation: 37 N.E. 932,150 Ill. 441
• Parties: KOTTER v. PEOPLE.
• Court: Illinois Supreme Court

150 Ill. 441

37 N.E. 932

KOTTER

v.PEOPLE.¹

Supreme Court of Illinois.

June 19, 1894.

Error to circuit court, Massac county; A. K. Vickers, Judge.

Indictment of Ernest A. Kotter for forgery. Defendant was convicted, and he brings error. Reversed.

R. W. McCartney, for plaintiff in error.

Atty. Gen. M. T. Maloney and State's Atty. D. W. Helm, for the People.

BAKER, C. J.

Ernest A. Kotter, the plaintiff in error, was indicted, tried, and convicted in the Massac circuit court for the crime of forgery, and sentenced to the penitentiary for the term of one year. He brings the case here by writ of error. It seems he is a farmer, and was appointed by the county board as pound master in the precinct in which he lives, to enforce the stock law. He was probably too zealous in the performance of his duties. At all events, one William Korte replevied quite a number of cattle and sheep out of his hands, and, upon the trial in the Massac circuit court, Korte had verdict and judgment against Kotter for the property, and judgment against him for costs. The seven or more of witnesses for Kotter sympathized with him in his misfortune, and, after the trial, all, or most all, of them met Kotter at Pergande's saloon, and agreed to give him their witnesses' fees, and offered to sign receipts. Afterwards the deputy sheriff, Evers, called on plaintiff in error with the execution for costs, plaintiff's fee bill, and defendant's fee bill, and was informed by plaintiff in error that his witnesses had agreed to give him their costs; and the deputy, having been informed by one or more of said witnesses that such was the fact, handed the ‘defendant's fee bill’ to Kotter, with directions to get them to severally receipt on the fee bill for the witnesses' fees due to them, respectively, and then return the fee bill to him. The fee bill, as handed to Kotter, read thus as to each witness named therein: ‘Henry Brinker, $2,’-the name of and amount due each witness following in order, the only difference being that, as to some witnesses, the amount stated was $2, as to others $1.90, and as to others $1.60. When the fee bill was returned to the deputy sheriff, there was written after each name and amount, and in the same line, respectively, with that in which were specified the name of each witness and the amount due him, the additional words, ‘Received my pay,’ followed by the name of the witness whose name occurred at the beginning of the line. For example, the first line under the printed caption ‘Names of Witnesses'wasas follows: ‘Henry Brinker, $2. Received my pay. Henry Brinker.’ And, as to each of the other witnesses, followed, in regular order, a like line. The indictment against plaintiff in error contained three counts for forgery: The first count for forging the receipt for the fees due Henry Brinker, the second for forging the receipt for the fees due Ed Seibold, and the third for forging the receipt for the fees due George Kruger. Plaintiff in error made a motion to quash the indictment, which was overruled, and an exception taken. He was then tried before a jury, upon a plea of not guilty, and the jury returned a verdict finding him not guilty upon the second and third counts, and finding him guilty on the first count, and fixing his term of imprisonment in the penitentiary at one year. Motions for a new trial and in arrest of judgment were regularly and consecutively made by plaintiff in error, but were overruled by the court, and exceptionsduly taken; and he was then sentenced upon the verdict to imprisonment in the penitentiary for the term of one year.

Plaintiff in error insists that the trial court erred in overruling the motion to quash the indictment, since such action required him to plead to, and go to trial upon, three separate and distinct felonies at one and the same time. In Bish. Cr. Proc. § 449, it is said: ‘There can be only one transaction embraced in a single indictment for felony.’ And in section 425 it is said: ‘The only mode of objecting to a joinder of such offenses in case of felony is by an application to the court to quash the indictment before plea, or to compel the prosecutor to elect which charge he will try in a subsequent stage of the proceedings.’ And in section 455 it is said: ‘One mode of enforcing what is equivalent to an election is to quash the indictment before trial, when it appears to the judge that offenses have been unduly joined, and that the prisoner will be thereby prejudiced in his rights.’ In 1 Whart. Cr. Law, § 416, it is said: ‘In cases of felony, where two or more distinct offenses are contained in the same indictment, it may be quashed, or the prosecutor compelled to elect on which charge he will proceed, but such election will not be required to be made when several counts are introduced solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offense.’ The rule is that, although it is not proper to include separate and distinct felonies in different counts of the same indictment, it is proper to state the same offense in different ways in as many different counts as the pleader may think necessary. Lyons v. People, 68 Ill. 271. Although it is not proper to include separate and distinct felonies in different counts of the same indictment, it is allowable to state the same offense in different ways, it being understood that all the counts really relate to one transaction. Bennett v. People, 96 Ill. 602.

It is urged that no formal motion was made by plaintiff in error to compel the prosecutor to elect upon which count of the indictment he would proceed. It is a sufficient answer to say that the indictment at bar shows on its face that...