Murphy v. People of State

• Decision Date: 20 November 1882
• Citation: 1882 WL 10446,104 Ill. 528
• Parties: MICHAEL MURPHYv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

104 Ill. 528

1882 WL 10446 (Ill.)

MICHAEL MURPHY

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Will county; the Hon. J. MCROBERTS, Judge, presiding.

Messrs. HALEY & O'DONNELL, and Mr. J. R. FLANDERS, for the plaintiff in error, made the following among other points in their argument:

The indictment charges Murphy with the larceny and embezzlement of one Coskey's money, the second count charging that Coskey delivered to him and Fay the twenty dollar gold coin, and that they fraudulently converted the same to their own use. The proof shows that the coin was the property of Fay, and not of Coskey. The latter parted with the title and possession when he gave the coin to F. in payment for the drinks, and never expected to receive the same again, but only the balance left after paying what he owed Fay. Fishback v. Brown, 16 Ill. 74.

The title to the coin being in Fay, he gave it to Murphy to have it changed for smaller denominations, and Murphy went at Fay's request alone. Murphy was responsible only to Fay, from whom he received the money. Then the proof failed to sustain the charge, and no conviction could legally be had, on account of the variance.

It is necessary in both larceny and embezzlement that the ownership of the property should be laid in the indictment in the person who has the ownership, either general or special, and the proof must correspond with the allegation. 2 Bishop on Criminal Law, sec. 788; Bishop's Criminal Procedure, sec. 718.

To constitute embezzlement the money or thing must be obtained under color of right, and there must be its conversion to the use of the person so obtaining it, with a fraudulent and felonious intent. What was larceny at common law, is not embezzlement under the statute. Kibs v. People, 81 Ill. 599.

The law does not presume that because money has been intrusted to an individual that he has embezzled or appropriated it to his own use. The party asserting that fact must prove it. ( Thomas v. Dunaway, 30 Ill. 373.) The mere fact of not paying the money over, is clearly insufficient. (2 Bishop on Criminal Law, sec. 376; Rex v. Smith, Russ. & Ryan, 267.) Even though he sets up an excuse never so frivolous, or a claim in himself actually unfounded, ( Rex v. Norman, Car. & M. 501,) or though he absconds, ( Regina v. Creed, 1 Car. & K. 63,) it is essential that there should be a denial of having received the money, or else some false account be given. Regina v. Jones, 7 Car & P. 834.

As to when drunkenness is a defence for an act otherwise a larceny, see 1 Bishop on Criminal Law, sec. 411. The judgment should have been arrested because the verdict was general, and judgment could not be rendered on it for the reason the defendant could not be guilty of both the offences charged. State v. Montague, 2 McCord, 257.

Mr. JAMES MCCARTNEY, Attorney General, for the People:

The defendant's drunkenness is no defence to the crime charged. Marshall v. State, 59 Ga. 154.

The gold coin remained the money of Coskey until the change was given him therefor. If no change had been returned, could not Coskey, after waiting a reasonable time and making demand therefor, have maintained replevin for the coin? The debt was not extinguished by the delivery of a piece of money much larger than the sum due.

The proofs show a conversion of the coin with a felonious intent. On this point, see Welsh et al. v. People, 17 Ill. 339; Stinson v. People, 43 Id. 397; Farrell v. People, 16 Id. 506; Bailey v. State, 58 Ala. 414; Commonwealth v. Barry, 124 Mass. 325; State v. Williamson, 1 Houst. Cr. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 428; People v. McDonald, 43 N. Y. 61; Bassett v. Spofford, 45 Id. 387; Hildebrand v. People, 1 Hun, 19; 56 N. Y. 394; Regina v. McKale, 11 Cox's Cr. C. 32; Regina v. Slowles, 12 Id. 269.

The case of Kibs v. People, 81 Ill. 599, has reference to the proof necessary to sustain an indictment for the larceny of goods under section 74 of the Criminal Code, concerning embezzlement. This indictment has two counts, one for the simple larceny of this coin, and the other for the conversion of it under the embezzlement statute. The same evidence to sustain embezzlement is not absolutely required in this case, although the evidence would sustain either count.

The complaint made in arrest of judgment needs little consideration. Many reasons might be given why a reversal of the judgment should not be made upon that ground, among which reasons that might be given, one is, the joinder of counts for simple larceny and for larceny by embezzlement was right, and that a general verdict of guilty on such joinder was right. Both counts charge larceny, but larceny committed in two different ways.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Plaintiff in error and John Fay were jointly indicted for the crime of larceny. They were jointly tried, and the jury found plaintiff in error guilty, and Fay not guilty. Judgment was entered upon this verdict, after overruling a motion for a new trial, and this writ is prosecuted to reverse that judgment, for several errors alleged which we shall proceed to briefly consider.

First--It is claimed the verdict is not sustained by the evidence. The undisputed facts, as proved on the trial, are: One Coskey, and a friend accompanying him, entered a saloon, in Joliet, kept by Fay, and procured drinks, and Coskey not having the exact amount of money with which to pay for the drinks, handed Fay a twenty dollar gold coin, United States coinage, for the purpose of making “change.” Fay, on looking over his money on hand, said he could not “change” it, and thereupon pushed the coin towards plaintiff in error, who was, at the time, standing by the bar, and requested him to go and get the coin “changed.” Plaintiff in error took the coin, left the saloon, and never returned or accounted for the coin.

The case seems, in all its essential features, precisely like Farrell v. The People, 16 Ill. 506. There, one Hennis gave Farrell, who was a hack driver, a five dollar bill to be “changed,” in order that Hennis might pay Farrell twenty-five cents. Farrell did not return with the bill or the “change.” This court held he was guilty of larceny. In Welsh et al. v. The People, 17 Ill. 339, (a case similar in the controlling principle to that in the present case,) it was said: “Where, as in this case, the alleged larceny is perpetrated by obtaining the possession of the goods by the voluntary act of the owner, under the influence of false pretenses and fraud, when the cases are carefully examined and well understood, there is no real difficulty in deducing the correct rule, by which to determine whether the act was a larceny and felonious, or a mere cheat and swindle. The rule is plainly this: if the owner of the goods alleged to have been stolen, parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. It is obtaining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny. The pointed inquiry in such a case must always arise, did the owner part with the title to the things, and was the legal title vested in the prisoner.”

Again, in Stinson v. The People, 43 Ill. 397, the same doctrine was reiterated. It was there, among other things, said: “If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a felony, if the goods were obtained with that intent.”

This settles the law in this State, but analogous ruling, elsewhere, may be found in the following cases, referred to in argument by the Attorney General: Bailey v. The State, 58 Ala. 414; Commonwealth v. Barry, 124 Mass. 325; State v. Williamson, 1 Houst. Crim. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 438; People v. McDonald, 43 N. Y. 61; Hildebrand v. People, 56 Id. 394.

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