Lyons v. People of State

• Citation: 68 Ill. 271,1873 WL 8339
• Parties: MICHAEL LYONS et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 30 June 1873
• Court: Supreme Court of Illinois

68 Ill. 271

1873 WL 8339 (Ill.)

MICHAEL LYONS et al.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

June Term, 1873.

WRIT OF ERROR to the Circuit Court of La Salle county; the Hon. EDWIN S. LELAND, Judge, presiding.

This was an indictment against Michael Lyons and Stephen Shevelin, for burglary. The facts are fully stated in the opinion.

Mr. E. F. BULL, for the plaintiffs in error.

Mr. JAMES K. EDSALL, Attorney General, for the People.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The indictment upon which the defendants were convicted contains two counts. The first count charges:

That the defendants, on the 13th day of September, 1871, at the county of La Salle, “in the night time of the same day, a freight railroad car of the Illinois Central Railroad Company, incorporated as such railroad company under the laws of the State of Illinois, by virtue of an act of the General Assembly thereof, feloniously, wilfully, maliciously and forcibly did then and there break and enter, with intent the goods and chattels of the said Illinois Central Railroad Company, in the said freight railroad car then and there being, feloniously to steal, take and carry away, etc.”

The second count charges the larceny of three boxes of peaches, the property of the railroad company, of the value of five dollars.

It is objected by the defendants that the first count is defective because the word “burglariously” is omitted. In support of this objection it is argued that the 162d section of the Criminal Code, Rev. Stat. of 1845, is limited to the criminal code as it existed when that section was enacted, and that it can have no application to the act of the 19th of February, 1859.

It is undoubtedly true that the word “burglariously” was indispensable to a count for burglary at common law, but it is equally true that the offense described in the first count is not a common law burglary. It is made burglary by the act of February 19, 1859, alone. The offense is stated “in the terms and language of that act, and so plainly that the nature of the offense may be easily understood by the jury,” and this is sufficient.

The 162d section of the Criminal Code, (Revised Laws of 1845,) is not, as is contended by the defendants, limited to the criminal code as it existed when that section was enacted. It is a general rule of criminal pleading, applicable to all cases within its terms, without regard to the date of the enactment of the statutes under which the cases shall arise. This court has repeatedly so construed and applied it. Canady v. The People, 17 Ill. 159; Morton v. The People, 47 ib. 472; Dunn v. The People, 40 ib. 466. The jury returned a general verdict, finding the defendants “guilty in manner and form as charged in the indictment,” and fixed their punishment at one year's imprisonment in the penitentiary.

The defendants object to this verdict, and claim that no judgment can be given upon it because the first count is for burglary, which is punishable by confinement in the penitentiary, and the second count is for petit larceny, which is punishable in a different way.

If these were separate and distinct felonies, committed in different transactions, the position would unquestionably be correct. But it is shown by the record that if the defendants are guilty at all, they are only guilty for what they did in a single transaction. No evidence was either given or offered to be given of more than one transaction.

The rule laid down in the text books 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, even although the judgment on the several counts be different, provided all the counts are for felonies or all for misdemeanors. 1 Archbold's Criminal Practice and Pleading, 93-1; 1 Bishop's Criminal Procedure, § 208. And on this principle a count for larceny may be joined in the same indictment with a count for burglary, and it is held that these offenses may be even joined in the same count. 1 Hale's Pleas of the Crown, 556, 557; 1 Russell on Crimes, 827, 828; 2 Archbold's Criminal Practice and Pleading, 329-1, 329-2. And evidence that a felony was actually committed is evidence that the breaking and entering were with intent to commit that offense. Roscoe's Criminal Evidence, 365; 1 Hale's Pleas of the Crown, 560. It is obvious, therefore, that no harm, in a legal sense, could possibly have resulted to the defendants, during the progress of the trial, by the introduction of evidence applicable to either count. The logical effect of the verdict is, that the defendants are guilty as charged in each count. Curtis v. The People, Breese, 259. But as the punishment imposed is only that prescribed by law for the offense charged in the first count, it is reasonably certain that the jury intended, by their verdict, to find the defendants guilty, and punish them for the offense charged in that count alone, and that they should not be punished in addition for the offense charged in the second count, and to this effect was the judgment of the circuit court. “The general rule is,” says TREAT, Justice, in Stoltz v. The People, 4 Scam. 168, “that the verdict must be as broad as the issues submitted, and it was formerly held, with much strictness, that a failure to find on all the issues vitiated the verdict. The tendency of modern decisions, however, has been to relax the severity of the rule, and sustain the verdict where the intention of the jury can be ascertained.” In that case this court held, where the defendant was tried on an indictment containing two counts, and the jury returned a verdict finding the defendant guilty as to the first count, saying nothing as to the second count, that the verdict was sufficient. So, upon like principle, this court has held that a general verdict is sufficient, where an indictment contains two or more counts and one of the counts is defective. Townshend v. The People, 3 Scam. 329; Holliday v. The People, 4 Gilm. 113. It necessarily follows that where an indictment, as in this case, in one count charges the breaking and entering of a car with intent to steal, and in another count a stealing, at the same time, in the car which was so broken and entered, and the defendant is found guilty generally, and a punishment imposed which is by law authorized to be inflicted for the offense charged in either count, the verdict must be sustained; and this is in accordance with the decided preponderance of the authorities in the United States. Wharton's Am. Crim. Law (ed. of 1868,) Secs. 415, 416, 417; Commonwealth v. Hope, 22 Pickering, 5; Crowley v. Commonwealth, 11 Metcalf, 575; Kite v. Same, ib. 581; Cook v. The State, 4 Zabriskie, 846; Manly v. The State, 7 Md. 148; Frolick v. The State, 11 Ind. 213; State v. Hooker, 17 Vt. 658.

The defendants insist that the court below erred in modifying their fourth, tenth, and eleventh instructions, and in refusing to give their twelfth, thirteenth, and fourteenth instructions as asked.

The fourth instruction, as asked, was this:

“The policy of the law is, that it were better that ninety and nine, or any indefinite number of guilty persons should escape, than that one innocent man should be convicted, and that mere probabilities are not sufficient to warrant a conviction; nor is it sufficient to authorize a conviction that the greater weight or preponderance of evidence supports the allegation of the indictment; nor that, upon the doctrine of chances, it is more probable the defendants are guilty than that they are innocent, not even if the probabilities are as one million, or any indefinite number in favor of their guilt, to one in favor of their innocence; unless the jury are able to say, from all the evidence, that every material allegation of the indictment is proven beyond a reasonable doubt, they must find the defendant not guilty.”

It was modified by striking out the words: “Not even if the probabilities are as one million, or any indefinite number in favor of their guilt, to one in favor of their innocence.”

The words stricken out neither declare a rule of law nor correctly elucidate one already declared. They merely attempt to illustrate the rule previously declared, by reference to numbers. It is well remarked by Mr. Starkie, that “The notions of those who have supposed that mere moral probabilities or relations could ever be represented by numbers or space, and thus be subjected to arithmetical analysis, can not but be regarded as visionary and chimerical.” 1 Starkie on Evidence, 507. The illustration proposed could only have tended to perplex and confuse the minds of the jurors, and it was properly stricken out. The tenth instruction, as asked, was this:

“10. Before the jury can convict, it must be made to appear beyond a reasonable doubt that the defendant, and not somebody else, committed the offense charged in the indictment. It is not sufficient that the evidence shows that the defendant or some other persons committed such offense, nor that the probabilities are that the defendants and not some one else committed such offense.”

It was qualified by adding:

“Unless those probabilities are so strong as to remove all reasonable doubt of the innocence of the defendants, or either of them, and to leave in the minds of the jury no reasonable doubt of the defendants' guilt.”

The qualification does not, as...