People v. Connors , 14130.

• Decision Date: 09 February 1922
• Docket Number: No. 14130.,14130.
• Citation: 133 N.E. 639,301 Ill. 112
• Parties: PEOPLE v. CONNORS.
• Court: Illinois Supreme Court

301 Ill. 112

133 N.E. 639

PEOPLE

v.CONNORS.

No. 14130.

Supreme Court of Illinois.

Dec. 22, 1921.

Rehearing Denied Feb. 9, 1922.

Error to Circuit Court, McHenry County; E. D. Shurtleff, Judge.

Matthias Connors was convicted of burglary of a railroad car, and brings error.

Affirmed.

James F. Fardy, of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Vincent S. Lumley, State's Atty., of Woodstock, Charles E. Selby, of Springfield, and William M. Carroll, of Woodstock, for the People.

DUNN, J.

The plaintiff in error was convicted in the circuit court of McHenry county on an indictment charging him in four counts with having burglariously and forcibly broken and entered a railroad car of the Chicago & Northwestern Railway Company with intent to rob, steal, take, and carry away the goods and chattels of the railway company then and there found. His motions for a new trial and in arrest of judgment were overruled, he was sentenced to imprisonment in the penitentiary, and he has sued out a writ of error.

The motion in arrest of judgment is based upon the failure of the indictment, and each count thereof, to charge that the breaking and entry were felonious, and with felonious intent to steal, take, and carry away the goods of the railway company.

At common law in all indictments for felony the use of the word ‘feloniously’ was absolutely necessary. It was a technical word which could not be dispensed with, and its place could not be supplied by the use of any other. In the same way the word ‘traitorously’ was essential in all indictments for treason and ‘burglariously’ in all indictments for burglary. In every indictment for murder it was necessary to state as a conclusion, from the facts averred, that the defendant of his malice aforethought did kill and murder the deceased, and no other word than ‘murder’ was sufficient. If the death arose from any wound, it was essential to allege that the would was mortal, and this word could not be supplied by the allegation that the deceased dies in consequence of the violence inflicted upon him. 1 Chitty on Crim. Law, “42, “43. In accordance with this doctrine it was held on Ervington v. People, 181 Ill. 408, 54 N. E. 981, that an indictment which charged that defendant unlawfully and willfully made an assault upon a person named, with intent then and there unlawfully, willfully, and maliciouslyto murder him, was not sufficient to substantially charge the defendant with the crime of assault with intent to commit murder, because it contained no allegation that the assault was made feloniously. In Bolen v. People, 184 Ill. 338, 56 N. E. 408, a different rule was said to prevail where the offense was not a felony at common law, and it was held that the indictment in that case, which was for incest, need not state that the offense was feloniously committed, since incest is a statutory offense, and not a felony at common law. So perjury need not be alleged to have been feloniously committed, since perjury was not a felony at common law. People v. Ashbrook, 276 Ill. 382, 114 N. E. 922. The same is true of forgery. State v. Murphy, 17 R. I. 698, 24 Atl. 473,16 L. R. A. 550. Burglary and larceny were felonious at common law, and, if the common-law rule is to be applied, the indictment was insufficient and the motion in arrest should have been sustained. At common law, felony was any crime which occasioned the forfeiture of lands and goods. 4 Blackstone's Com. 94. We have no such thing in the United States and never had. Not only was there no common-law felony in Illinois, but no statute declaring what crimes should be regarded as felonies until the Criminal Code of 1874 enacted that felony is an offense punishable by death or by imprisonment in the penitentiary and that every other offense is a misdemeanor. Rev. St. 1874, c. 38, § 277. This division of crimes into felonies and misdemeanors is in no sense the division known to the common law, and is not based on the same distinction, but is an arbitrary statutory classification of criminal offenses which has the advantage of ease and certainty of application. Where the words ‘felony’ and ‘feloniously’ appear in our statutes or decisions before 1874, they refer to offenses to which such terms were applicable in the common law. While there was no such thing in this state as a felony according to the common-law test, and no statutory felony, the General Assembly adopted the Criminal Code of 1827 (Rev. Code of Laws, 1827, p. 158), which provided in section 157 that--

‘All offenses herein defined shall be prosecutedand punished as by this act is prescribed, and not otherwise, and all other offenses may be punished by fine and imprisonment, in the discretion of the court: provided the fine shall in no case exceed $100 and the imprisonment six months.’

This Code uses the term ‘felonious crimes,’ and refers to offenses ‘denominated by the common law felony’ and offenses ‘below the grade of felony,’ but these expressions refer to felony only in its historical meaning, derived from its use for several hundred years in the common law. The Code also provided, in sections 150 and 151, that--

‘Every indictment or accusation of the grand jury, shall be deemed sufficiently technical and correct which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury. * * * All exceptions, which go merely to the form of an indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.’

These provisions have been retained in the Criminal Code in partically the identical words to this day. Hurd's Rev. St. 1919, c. 38, §§ 408, 411. Most, if not all, the offenses ‘denominated felony by the common law’-treason, murder, rape, burglary, robbery, larceny, and arson, together with many other offenses-were defined in the Code, and it was expressly directed that the offenses thus defined should be punished as by that act prescribed and not otherwise, and that all offenses not so defined might be punished, in the discretion of the court, by fine not exceeding $100...