Miller v. People

• Decision Date: 23 October 1907
• Citation: 229 Ill. 376,82 N.E. 391
• Parties: MILLER v. PEOPLE.
• Court: Illinois Supreme Court

229 Ill. 376

82 N.E. 391

MILLER

v.PEOPLE.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Circuit Court, Iroquois County; Frank L. Hooper, Judge.

William Miller was convicted of grand larceny, and he brings error. Reversed and remanded.

Oscar H. Wylie, Fleming R. Moore, and Nellie B. Keeslar, for plaintiff in error.

W. H. Stead, Atty. Gen., and John P. Pallissard, for the People.

CARTER, J.

Plaintiff in error was indicted for burglary and larceny by breaking and entering the building of one George Wilken, with intent to steal, and stealing, a top buggy worth $85, the property of Wilken. He was convicted of grand larceny at the March term of the Iroquois county circuit court and sentenced to the penitentiary. To review this finding, he brings this writ of error.

The testimony shows that on the noght of May 24, 1906, the implement store of George Wilken, in the village of Danforth, in said county, was entered and a new rubber tired buggy, valued at about $85, was stolen therefrom. The city marshal of Danforth testified that he was able the next day, because of a previous rain, to track the buggy as far as a church about a block and a half south of the store; that there were no horse tracks accompanying the buggy tracks from the store to the church; that at the church there were tracks of steel tired buggy wheels and a team of horses coming in and the same tracks leading out, followed by the tracks of a rubbed tired buggy; that he examined the hoof marks and found that they were small, and that the right-hand horse was shod in front and the other horse unshod; that on the Saturday after the buggy was taken he measured the tracks made by the horses of plaintiff in error, who had driven to this church in Danforth on Friday evening and tied his horses in the rear of the church, and that these tracks corresponded to those he had measured the day after the burglary, and that plaintiff in error's right-hand horse was shod in front and the other horse was not shod. The witness testified that he measured these tracks by means of small sticks, which he had destroyed. Wilken, the owner of the store, was away the afternoon previous to the burglary and left a mail carrier, one John Kennedy, in charge. Kennedy testified that plaintiff in error was in the store on the evening of May 24th, about 6 o'clock, and in the room from which the buggy was taken; that he inquired if Mr. Wilken had any twine, and incidentally mentioned that he had a buggy in Watseka getting it painted and retired and did not need another. Plaintiff in error denies that he was at Wilken's store on that afternoon or evening, and that he had this talk with Kennedy. Ralph Meinhardt testified that on the night of May 24th, about 1 o'clock, he drove past a team and top buggy, having another buggy tied behind, about a mile and a half south of Danforth. It was dark, and witness did not recognize the driver, the buggies, or the team. The team and buggies were going in the direction of Miller's home, away from Danforth. In the early part of December the plaintiff in error telephoned John Cromenecker, a constable living in Gilman, and said he understood he had a party desiring to purchase a buggy. Cromenecker replied that he had, and, as a result of their talk, within the next two or three days, Cromenecker, accompanied by one Lee, went to the farm where plaintiff in error lived, about four miles southeast of Danforth and about four miles east of Gilman, where they were shown the buggy by the father of plaintiff in error, it then being in pieces and stowed in the loft or upper part of a corncrib. Plaintiff in error had told his father, if they came, to show the buggy to them. They went to the field where plaintiff in error was at work, and, after a short talk concerning the buggy, returned to Gilman. In the afternoon of the same day, in company with George Wilken and two others, Cromenecker went again to Miller's home. The buggy was taken from the loft of the crib and identified by Mr. Wilken as the one stolen from his store on May 24th. The stolen buggy was rubber tired, with a black top and red running gear, and originally it bore the name plate of the Harper Buggy Company, the manufacturers, but, when found in the possession of plaintiff in error, it had the plate of the Eckhart Carriage Company substituted. On each side of the buggy, below the seat, was a painted rose, which had been varnished or painted over, although on a careful examination the rose was still visible under the paint. The lower part of the side seat panel had been removed, some new mouldings put on, a medallion taken off, and the buggy changed in one or two other minor particulars, all these changes having evidently been made after it was stolen. It was testified to that the number was on the inside of the seat and corresponded to the number in the invoice from the Harper Buggy Company. The buggy was identified by Wilken and the traveling salesman who sold it to him. A salesman for the Eckhart company testified that the vehicle was not of their make; that the serial numbers of the two companies ran entirely different.

Plaintiff in error testified that, in addition to working on his father's farm, he drove over the county selling stock food and farm medicines; that about May 26th, while out on that business, he met, at a watering trough near Onarga, a man who gave the name of Fred Richards (describing him with more or less particularity), who was driving a horse attached to a new top buggy; that he again met Richards at Gilman on Decoration day, and Richards wished to sell him a buggy for $65; that he received two postal cards from the same man about the sale of the buggy, but could not find the cards after diligent search; that he saw Richards again at Gilman about June 19th, and after some dickering finally loaned him $45 on the buggy, with the verbal understanding that, if the money was not paid in six weeks, the buggy should belong to plaintiff in error; that he fastened the buggy back of his own, and drove it to a barn which he rented in Gilman for the use of his medicine business, and afterwards, in the latter part of June, took it to his father's farm. The son of the owner of that barn testified that he went into the barn to get some fruit jars, about the latter part of June or 1st of July, and saw there a buggy which corresponded in looks to the one stolen. Plaintiff in error testified that he used the buggy many times during the summer and fall with no attempt at concealment, driving, with a young lady friend, in it to church and to various picnics, sociables, and celebrations; that early in December he took the buggy to a farm sale, where it was offered at auction, but the bids were so low that he caused it to be bid in on his own behalf and it was taken back home, and, in order to get it out of the way, was put, at his father's request, in the loft where it was found. His father corroborated him in this last statement, and the proof is clear that he attempted to sell the buggy at the farm sale in question and had it bid in. The father, a brother, and plaintiff in error all testified that he was at home during all the afternoon and evening of May 24th and slept there that night. A friend of the family also testified that he was at their home during the late afternoon and the whole of that evening, and plaintiff in error was there all the time. Several witnesses testified that plaintiff in error used the buggy, without any apparent effortat concealment, during the summer and fall. One witness testified that he had ridden in it with him to Danforth. In the locality where plaintiff in error testified this man Richards said he worked is situated a large canning factory, with a farm run in connection therewith, employing over 100 men. Several witnesses from that vicinity stated that they did not know any man by that name. The postman on the rural route testified that in June he had delivered two postal cards at the Miller farm, addressed to Will Miller, and that one was signed ‘Fred Richards' and the other ‘Fred,’ and both were in reference to the sale of a buggy. On the motion for new trial, plaintiff in error filed an affidavit which stated that since the trial he had found two witnesses who were living near Onarga, who would testify that they had met a man answering to the description of the one in question, between Watseka and Crescent City, in June, 1906; that the man gave his name as Richards; and that one of the said witnesses afterwards saw him at work at the canning factory at Onarga. Witnesses testified as to the good character of plaintiff in error, and the state's attorney admitted on the trial that such reputation had always been good prior to the occurrence in question.

It is insisted that the evidence is not sufficient to sustain a conviction. The determination of that question is for the jury, and it is only when this court is ‘satisfied, from a careful consideration of the whole testimony, that there is reasonable doubt of the guilt of the accused, that it will interfere with the verdict of the jury on the ground that the evidence does not support the verdict.’ McCoy v. People, 175 Ill. 224, 51 N. E. 777;Gilman v. People, 178 Ill. 19, 52 N. E. 967;Henry v. People, 198 Ill. 162,52 N. E. 120. While we are not prepared to say that this record would justify this court in setting aside the verdict because of lack of evidence, we think that it is so conflicting on many material points that the instructions should have stated the law applicable to the facts with accuracy. Swan v. People, 98 Ill. 610.

It is insisted that instruction 17 given for the people is erroneous. That instruction reads: ‘That if you believe, from all the evidence, beyond a reasonable doubt, that a burglary was committed as alleged in the indictment and that the buggy introduced in evidence was stolen, and that shortly thereafter it was in the possession of the defendant, then that...