Lamkin v. People of State
| Decision Date | 31 January 1880 |
| Citation | 1880 WL 9978,94 Ill. 501 |
| Parties | JOHN W. LAMKIN et al.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. WILLIAM E. NELSON, Judge, presiding.
Mr. E. L. SWEET, for the plaintiffs in error:
The court erred in not quashing the indictment. It should appear on the face of the indictment that the object of the conspiracy or the means to be employed, is criminal, and an allegation that the purpose “is to cheat and defraud,” without more, does not necessarily imply a criminal object. State v. Jones, 13 Ia. 269; State v. Roberts, 34 Me. 320; State v. Parker, 43 N. H. 83; Lambert v. The People, 9 Cow. 578; March v. The People, 7 Barb. 331.
It is not necessarily a punishable crime to cheat and defraud one of his money, goods or estate, or wrongfully and wickedly to obtain his money and other property designedly and with intent to defraud. Therefore, an indictment charging a conspiracy with such intents, and specifying no criminal means designed to be used to effect such intent, is insufficient. Commonwealth v. Hunt, 4 Metc. 111; State v. Roberts, 34 Me. 320; State v. Mayberry, 48 Id. 218; Commonwealth v. Shedd, 7 Cush. 514; Alderman v. The People, 4 Mich. 414.
Qualifying epithets, such as “unlawful, deceitful,” etc., are not sufficient, unless the facts averred show the offence. Commonwealth v. Hunt, 4 Metc. 111.
The prosecution is barred by the Statute of Limitations. Under the 46th section of the Criminal Code of 1874 the penalty for a violation of said section is imprisonment in the penitentiary or a fine.
A felony is an offence punishable with death or by imprisonment in the penitentiary. Rev. Stat. 1877, 390, sec. 277; and every other offence is a misdemeanor. Ibid. sec. 278.
Mr. JAS. K. EDSALL, Attorney General, for the People.
On the 22d day of March, 1879, the grand jury of Champaign county returned into the circuit court of that county, then in session, an indictment, containing eight counts, against the plaintiffs in error. In each count, but in different phraseology, plaintiffs in error were charged with conspiring, combining, confederating and agreeing together on the 7th day of July, in the year of our Lord one thousand eight hundred and seventy-seven, to cheat and defraud Lewis C. Burnett, Sarah E. Burnett and Thomas McCulloch of their goods, chattels and property, etc.
In neither count is there any averment that plaintiffs in error were not “usually and publicly resident within this State” since the commission of the alleged offence, nor that they were previously indicted for the same offence, and that such indictment has been quashed or the proceedings thereupon set aside or annulled. Motion was made to quash the indictment, which was overruled by the court. Plaintiffs in error were thereupon placed upon trial, upon which the jury returned a verdict finding each of them guilty as charged in the eighth count of the indictment, assessing the fine of the plaintiff in error Lamkin, at $200, and that of plaintiff in error Lacy at $50. Motions for new trial and in arrest of judgment were made by plaintiffs in error and overruled by the court, and the court then gave judgment upon the verdict of the jury.
We held in Garrison v. The People, 87 Ill. 96, that a count in an indictment found in September, 1876, charging a larceny to have been committed in January, 1866, without showing that the accused had at any time been a ““person fleeing from justice,” in the language of the statute of limitation, then in force, was clearly bad, as showing on its face that the offence was barred. See, also, 1 Wharton's Crim. Law (7th ed.), 446, and authorities referred to in note.
The statute of 1874 provides--Division IV of the Criminal Code, p. 398, sec. 315: (than murder, manslaughter, arson and forgery) “must be found within three years next after the commission of the crime, except as otherwise provided by law.”
316. 317.
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...1961 the presence of the alternative penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor. (Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 582, 167 N.E. 852.) Since no substantial difference ......
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...of Limitations on the basis of the pendency of prior proceedings against the same defendants for the same conduct. The cases of Lamkin v. People, 94 Ill. 501 and Swalley v. People, 116 Ill. 247, 4 N.E. 379, referred to a tolling statute which differed substantially in terminology from secti......
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