Lory v. People

• Decision Date: 23 October 1907
• Citation: 82 N.E. 261,229 Ill. 268
• Parties: LORY v. PEOPLE.
• Court: Illinois Supreme Court

229 Ill. 268

82 N.E. 261

LORY

v.PEOPLE.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

Frank C. Lory was convicted of crime, and brings error. Reversed.

J. B. Mann and W. C. Lindley (A. H. Taylor and J. W. Jamison, of counsel), for plaintiff in error.

W. H. Stead, Atty. Gen., and J. W. Keeslar, State's Atty. (W. T. Gunn, of counsel), for the People.

DUNN, J.

The plaintiff in error was indicted and convicted for obtaining $400 from Henry Lloyd by means of the confidence game, and has sued out a writ of error to reverse the judgment.

The indictment alleges that the plaintiff in error ‘did unlawfully and feloniously obtain from one Henry Lloyd $400 of good and lawful money of the United States.’ The proof shows that what he obtained was a check for $300. This is a fatal variance. In the case of Goodhue v. People, 94 Ill. 37, the defendant was indicted for the embezzlement of money belonging to the county, but the proof showed that the embezzlement consisted in the taking of county orders, and on page 48 we said: ‘The indictment charged the embezzlement of money and did not charge the embezzlement of county orders. If this disposition of the county orders was made criminal, it constituted either the larceny or the embezzlement of county orders, and not of money. * * * It is plain that if crime was committed by the accused in this transaction in relation to what are called the ‘jail orders,’ as presented by the proofs, it was not the embezzlement of the proceeds of the orders, but the embezzlement or larceny of the orders themselves. If a man steal a horse and sell him to a stranger, he may be convicted of stealing the horse, but not of stealing the money received as the price of the stolen horse.' In Weimer v. People, 186 Ill. 503, 507, 58 N. E. 378, 380, it was said: ‘If it was true that Weimer receipted for and received from the town collector, as money, the amount mentioned in town orders, it could not be charged up to him in this case, and he could not be legally convicted of embezzling or converting to his own use their face value as money. There was no evidence that he embezzled the town orders, and, if there had been, he could not have been convicted of it under the charge of embezzling money.’ So, in an indictment for larceny or receiving stolen property, where there is a specific charge that the money stolen was of a certain kind and denomination, it is essential that the proof should sustain this allegation of the indictment. Williams v. People, 101 Ill. 382;Vale v. People, 161 Ill. 309, 43 N. E. 1091. Whether or not it was essential to allege in the indictment that the property obtained was good and lawful money of the United States, yet if it was so particularly alleged, that allegation would not be sustained by proof that the accused obtained a check for the money.

But the evidence is not sufficient to sustain a conviction for obtaining either money or check by means of the confidence game. The plaintiff in error in November, 1900, sold to the prosecuting witness 100 shares of the stock of the Dominion Gold Mining Company, which was organized in that same month in Vermilion county, Ill., with a capital stock of $750,000. Lory was the treasurer of the company, and Mr. Lloyd testified that Lory told him that the mine was very rich; that they had bored holes down to the gravel, and it paid $3.85 to the pan and would make a man some money. It would pay 10 per cent. the first year, 30 per cent. the next, and in three years would...