People v. Burke

• Decision Date: 28 October 1924
• Docket Number: No. 16040.,16040.
• Parties: PEOPLE v. BURKE.
• Court: Illinois Supreme Court

313 Ill. 576

145 N.E. 164

PEOPLE

v.BURKE.

No. 16040.

Supreme Court of Illinois.

Oct. 28, 1924.

Error to Criminal Court, Cook County; Timothy D. Hurley, Judge.

Albert Burke was convicted of larceny, and brings error.

Reversed and remanded.

Farmer, J., dissenting.

Otto Baer, of Chicago (J. M. Gwin, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Virgil L. Blanding, of Molline (Henry T. Chace, Jr., Edward E. Wilson, and Clyde C. Fisher, all of Chicago, of counsel), for the People.

HEARD, J.

Plaintiff in error, Albert Burke, was indicted, tried, and convicted in the criminal court of Cook county, Ill., under an indictment charging him with the larceny of $6, the property of the Illinois Bell Telephone Company. The indictment set forth in apt words a former conviction of plaintiff in error of the offense of petty larceny, and the verdict of the jury found that such former conviction and judgment were had. He was sentenced to the penitentiary, and the record is brought here by writ of error.

It is contended by plaintiff in error that since the amendment of the Criminal Code in 1921, by which larceny from the person in any amount is made punishable by imprisonment in the penitentiary, the distinction between grand and petty larceny has been abolished, and that a conviction cannot be sustained for a second offense of what is commonly called petty larceny.

[1][2] At common law ‘petty larceny’ was the stealing of goods of the value of 12 pence or under. Under the statute of this state passed in 1827 (Rev. Code of Laws 1827, p. 134), there was no distinction betweengrand and petty larceny. The law recognized but one offense. In 1833 (Rev. Laws 1833, pp. 182, 183) larceny was made punishable by imprisonment in the penitentiary for a term of years from one to ten, and it was provided that if the value of the property stolen was less than $5 the punishment should be a fine not to exceed $50 and imprisonment in the county jail not exceeding three months. In 1867 (Pub. Laws 1867, p. 90) the value of the stolen property requiring confinement in the penitentiary was raised to $25, but at the special session in 1867 (Pub. & Priv. Laws 2d Sp. Sess. p. 37) it was reduced to $15, and so continued until 1921, when the statute in regard to the punishment for larceny was amended so as to read as follows:

‘Every person convicted of larceny if the property stolen exceeds the value of fifteen dollars, or if the property is stolen from the person of another, shall be imprisoned in the penitentiary not less than one, nor more than ten years; if the property stolen has not been stolen from the person of another and is of the value of fifteen dollars, or less, the person convicted shall be confined in the county jail, or sentenced to labor in the workhouse of the county, city or town, where the conviction is had, or on the streets or alleys of the city, or on the public roads in the county, or to such labor under the direction of the sheriff as the county board may provide for, not exceeding one year, and fined not exceeding one hundred dollars.’ Smith's Stat. 1923, chap. 38, par. 389.

In none of these statutes are the terms ‘grand larceny’ and ‘petty larceny’ specifically defined, but since 1833 the courts and the Legislature have recognized those terms as having relation to the different grades of punishment for the crime of larceny; the term ‘petty larceny’ being used to designate that grade of larceny which subjects the offender to punishment otherwise than in the penitentiary, the sole basis of the distinction being the value of the property stolen.

[3][4][5] By the amendment of 1921 paragraph 393 of the Criminal Code (Laws 1921, p. 404), which provided a penitentiary punishment for a second conviction of the offense of petty larceny by any person over the age of 18 years, was not expressly repealed and still remains in force unless repealed by implication. Repeal of laws by implication is not favored, and it is only when there is a clear repugnance between two laws and the provisions of both cannot be carried into effect that the later law must prevail and the former in considered as repealed by implication. Dingman v. People, 51 Ill. 277:Devine v. Board of Commissioners, 84 Ill. 590;Pavey v. Utter, 132 Ill. 489, 24 N. E. 77;People v. Faherty, 306 Ill. 119, 137 N. E. 506. Where two statutes are enacted which have relation to the same subject, the earliest continues in force unless the two are clearly inconsistent with and repugnant to each other, or unless in the latest statute some express notice is taken of the former plainly indicating an intention to repeal it. And where two acts are seemingly repugnant, they should, if possible, be so construed that the later may not operate as a repeal of the former by implication. Town of Ottawa v. County of La Salle, 12 Ill. 339. There is no repugnancy between the amendment of 1921 and paragraph 393 of the Criminal Code. The amendment of 1921 simply provided a change of punishment for those specific cases of petty larceny where the property is stolen from the person of another, and did not repeal, either in express terms or by implication, paragraph 393.

[6][7] It is contended by plaintiff in error that there is no proof in the record that any property was stolen nor any proof of the ownership of the property claimed to have been stolen. From the evidence it appears that Frederick Biesswanger, a justice of the peace residing at Niles, Cook county, Ill., conducted a grocery store, in the rear of which was a small room used by him as a courtroom; the two rooms being connected by a doorway. On the night of October 7, 1922,...