People v. Dettmering

• Decision Date: 07 June 1917
• Docket Number: No. 11202.,11202.
• Citation: 116 N.E. 205,278 Ill. 580
• Parties: PEOPLE v. DETTMERING.
• Court: Illinois Supreme Court

278 Ill. 580

116 N.E. 205

PEOPLE

v.DETTMERING.

No. 11202.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 7, 1917.

Error to Circuit Court, Randolph County; J. F. Gillham, Judge.

Henry Albert Dettmering was convicted of embezzlement, and brings error. Reversed and remanded.A. C. Bollinger, of Waterloo, and J. Fred Gilster, of Chester, for plaintiff in error.

Edward J. Brundage, Atty. Gen., A. D. Riess, State's Atty., of Red Bud, and A. R. Roy, Asst. Atty. Gen. (A. G. Gordon and A. E. Crisler, both of Chicago, of counsel), for the People.

CARTER, J.

Plaintiff in error was indicted, tried, and found guilty in the circuit court of Randolph county on the charge of embezzling $500, alleged in one count of the indictment to be the property of the Farmers' Bank of Steeleville, in said county, and in the second count as the property of William Ebers. This writ of error was thereafter sued out.

Plaintiff in error was about 25 years of age at the time of the trial. He had been employed as cashier of the Farmers' Bank, located at Steeleville, in Randolph county, since 1910. In 1902 some 50 persons formed a copartnership to do a banking business, designating it as the Steeleville Bank. In 1904 the name was changed to the Farmers' Bank. Later a branch bank was established by this copartnership at Cutler, a town about five miles from Steeleville; the two banks being run under one management. At the time of the establishment of this branch bank three new partners were taken into the partnership. The list of partners changed from time to time, and the business was continued under the management of plaintiff in error until January, 1916, when a receiver was appointed to take charge of the affairs of the bank. In December, 1915, two bankers from Chester, Ill., at the request of certain parties interested in the bank, and in which request plaintiff in error seems to have joined, went to Steeleville and examined the books of the bank. They found an apparent discrepancy in the books of about $26,000, indicating that this money had been lost in the management of the bank, but neither of them was able to say what was the cause-whether it was bad loans, depreciation, or defalcation of officers of the bank in charge of its funds. Later, we assume after the receiver was appointed, an expert accountant was employed to examine the books. His testimony was that they were in very bad shape, and that some 18 pages of the general ledger-apparently one of the most important books kept by the bank-had been cut out with a knife or scissors, leaving but a narrow strip of each leaf next to the binding. He found an apparent shortage of over $25,000, which in his judgment, based on what he found in the books, was not the result of bad loans, unfortunate investments or extraordinary expenses of the bank, or bad securities of any kind. He testified that in his judgment this discrepancy or shortage could not be explained from the books, and could only be explained by the executive officer of the bank or the man who knew all about its transactions. The testimony of these experts tended to show that the bank books indicated that the business of the bank was in fairly prosperous condition until along in 1913. It was apparent from the evidence of the experts that the books were kept in a very careless and unsatisfactory manner, and that the mistakes had been made in keeping them.

The facts concerning the $500 item which is the basis of the charge in the indictment upon which conviction was had are substantially as follows: William Ebers, one of the stockholders, borrowed on February 5, 1915, $985 from the Farmers' Bank and gave a note, payable one year after date, for that amount, signed by himself and a surety. August 24, 1915, he drew a check for $500, on the First State Bank of Chester, payable to the Farmers' Bank, and sent it with a letter, by one Neimeier, a director of the bank, to the Farmers' Bank, to have it applied as a payment on said note. Neimeier testified that he gave this check in person to plaintiff in error. A sister of plaintiff in error, Elsie Dettmering, who had been acting as assistant cashier of the Farmers' Bank for about five years, testified that at the time the check came in the bank was short of cash, and that plaintiff in error took the check to Chester and cashed it, and the next day brought back the $500 in currency, and handed it to her, and she put it with the rest of the bank's cash in the vault, where it remained until paid out in the regular course of business of the bank. The evidence shows that plaintiff in error's wife was at that time at her father's home in Chester; that a baby had been born to her about two weeks before the transactions with reference to this check, and plaintiff in error frequently, during the time she was sick at her father's house, went there in an automobile in the evening to spend the night, and returned in the auto to his business the next morning. Miss Dettmering also testified that she entered the cash from this check in the cashbook and note register. Plaintiff in error's father, in whose building the bank was located, also testified that he saw plaintiff in error hand this money to his sister in the morning after he returned from Chester. No book of account was produced showing any entry of this $500 cash, and the note showed that there had been no indorsement of the payment thereon. The sister failed to find this entry in any of the books, but claimed that the books in which she entered it were not in court, and were not shown her.

The receiver, Ebers, testified that he received all the books of the bank from its vault on January 7, 1916, and put his initial and a number on each book; that he put these books in a wooden box, nailed it up, and tied a rope around it; that he filled another box (of pasteboard) with bank papers, and sent both boxes by express to Chester, and the books and all the papers arrived there in the same condition that they were shipped in, and that he had kept them in his office in Chester till the time of the trial, and had them in court at that time. He also testified that there had been no changes in the books, and he knew nothing about the cutting out of the leaves of the ledger. Testimony was offered on the part of plaintiff in error to indicate that these boxes of books were not very carefully looked after during the time they were shipped from Steeleville to Chester, and it is argued that the evidence indicates that there was an opportunity, during this shipment, to steal some of the papers or books or disfigure them. The testimony of the express agent at Steeleville was to the effect that the books and papers were considered of no great value, as at the time they were shipped it was agreed no value should be put on them, and therefore they did not look after them with the same care as they otherwise would. However, there is no evidence in the record tending to show that any one actually did interfere with, steal, or mutilate the books or papers during the time they were being shipped.

Counsel for plaintiff in error contend that there was a variance between the allegations in the indictment and the proof as to the ownership of the property. Both counts charged that the Farmers' Bank was a copartnership, composed of certain partners and stockholders (naming them), some 31 in number. Mrs. Zula Bollinger and W. T. White were named as two of the copartners and stockholders. The proof, in our judgment, shows conclusively that Mrs. Bollinger was not a copartner until November 26, 1915, while the date of the offense charged in the indictmentwas October 2, 1915. The proof also showed, without contradiction, that W. T. White died May 4, 1915, and had therefore been dead several months on said October 2, 1915, and that his stock was owned by his widow and only child. Unless the rule is modified by statute, the ownership of property must be alleged with the same accuracy in embezzlement as in larceny. 2 Bishop's New Crim. Proc. § 320. See, to the same effect, People v. Brander, 244 Ill. 26, 91 N. E. 59,135 Am. St. Rep. 301,18 Ann. Cas. 341,People v. Stricker, 258 Ill. 618, 102 N. E. 216, and cases therein cited.

Counsel for the state claim that as the indictment was founded on section 76 of the Criminal Code instead of on section 75, as claimed by plaintiff in error, it was not necessary to prove, under section 76, the names of the stockholders; that it was sufficient to simply show that the money was the property of the bank, without reference to who were the stockholders in the bank. It is somewhat difficult to decide from a reading of the indictment whether it was drawn under section 75 or section 76. We are disposed to think, taking both counts together, that it must be held that it was based on section 75, as that is the section which refers especially to embezzlement of partnership property, and both counts distinctly set forth that the bank was a copartnership, giving the names of the copartners. It seems clear that the one who drafted the indictment would not have alleged it was a partnership, and set out in detail the names of the copartners and stockholders if he had been drafting the indictment under section 76.

Counsel for the state seem to concede that if the indictment is based on section 75, it was necessary for the state to prove the names of the stockholders, but they further insist that this question was not raised at the time the evidence was offered; that it was first raised at the close of the People's case and cannot, therefore, be urged in this court-citing Cross v. People, 47 Ill. 152, 95 Am. Dec. 474,Clay v. People, 86 Ill. 147, and Greene v. People, 182 Ill. 278, 55 N. E. 341. These authorities do not so hold. In Greene v. People, supra, the court says (182 Ill. 283, 55 N. E. 343):

‘Nothing is better settled than that the objection of variance, to be available upon appeal or writ of error, either in a...