People v. O'Farrell

• Decision Date: 08 December 1910
• Citation: 93 N.E. 136,247 Ill. 44
• Parties: PEOPLE v. O'FARRELL.
• Court: Illinois Supreme Court

247 Ill. 44

93 N.E. 136

PEOPLE

v.O'FARRELL.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 8, 1910.

Error to City Court of Pana; J. C. McNutt, Judge.

Edwin F. O'Farrell was convicted of larceny by embezzlement, and he brings error. Affirmed.Chafee & Chew and W. B. McBride, for plaintiff in error.

W. H. Stead, Atty. Gen., and Arthur Yockey (John E. Hogan, E. E. Dowell, and B. H. Taylor, of counsel), for the People.

At the February term, 1909, of the Pana city court the plaintiff in error was indicted for the crime of larceny by embezzlement. After a motion to quash had been overruled, a plea of not guilty was entered, and upon a trial before a jury he was found guilty and sentenced to the penitentiary for an indeterminate period, and he has sued out this writ of error to reversed said judgment.

The statute upon which the indictment was based reads as follows: ‘If any officer, agent, clerk, or servant of any incorporated company, or if a clerk, agent, servant or apprentice of any person or copartnership, or society, embezzles or fraudulently converts to his own use, or takes and secretes with intent so to do, without the consent of his company, employer or master, any property of such company, employer, master, or another, which has come to his possession, or is under his care by virtue of such officeor employment, he shall be deemed guilty of larceny.’ Hurd's Rev. St. 1909, c. 38, § 75.

The evidence shows: That in the year 1904 the plaintiff in error was an attorney at law engaged in practicing his profession and in the real estate, loan, and insurance business in the city of Pana. That at that time one Malinda Vickerage, a widow about 50 years of age, resided in the city of Pana. That she owned a farm of about 100 acres situated near Assumption, which was free from incumbrance and was of the value of from $125 to $150 per acre. That she had received title to said land from her father. That she was engaged in litigation over a promissory note for $2,000, claimed to have been executed by her, with the administrator of a deceased brother, Thomas Scott. That she had a son about 23 years of age, who had recently been admitted to the bar, and who was a partner of the plaintiff in error in the law, real estate, loan, and insurance business at Pana. That in 1904 plaintiff in error called upon Malinda Vickerage in company with her son, and it was agreed that Malinda Vickerage would exchange her farm for a hotel property in the city of Pana known as the ‘Flint Hotel,’ which hotel was then incumbered by a mortgage for $7,000, and which was then renting for $125 per month, and which the plaintiff in error then had for sale or exchange. That the trade of the farm for the Flint Hotel was effected by Malinda Vickerage through the plaintiff in error, said Malinda Vickerage receiving for her farm the hotel, subject to the incumbrance of $7,000, and a mortgage on the farm of $1,100. That the title to the hotel was taken in the name of George D. Chaffee, and Chaffee executed and delivered a quitclaim deed to the hotel property to Malinda Vickerage, which quitclaim deed, by an arrangement between the plaintiff in error and Malinda Vickerage and her son, was not to be recorded, the object of said conveyance to Chaffee and the withholding of said quitclaim deed from recording being said by the plaintiff in error to have been conceived by the parties with a view to defeat the claim of the administrator of Thomas Scott against Malinda Vickerage. That the firm of O'Farrell & Vickerage took charge of the hotel, and for about a year the rent of the hotel was handled by Vickerage, after which time, and until the hotel was disposed of, the rents therefrom were paid to the plaintiff in error by the tenants in possession of the hotel. That about one year the hotel was deeded to Chaffee the $7,000 mortgage thereon fell due, and Chaffee refused to execute a new note and mortgage thereon. That thereupon, wich the consent of Chaffee, Malinda Vickerage, Richard P. Vickerage, and plaintiff in error, the quitclaim deed from Chaffee to Malinda Vickerage was destroyed, and Chaffee and wife conveyed the hotel property to the plaintiff in error, and he executed a quitclaim deed to Malinda Vickerage for the hotel property, which she was not to record. That thereafter, for about a year and a half, the plaintiff in error handled the hotel property, made improvements thereon, and collected the rent therefrom, and negotiated a new loan thereon for $7,000, with which he paid off the $7,000 mortgage thereon at the time the title to the hotel was placed in Chaffee. That in order to effect said new loan to take up said mortgage it was necessary that the tenants of the hotel should agree to sell at the hotel bar beer manufactured by the Reisch Brewing Company, which $7,000 note was guaranteed by Mr. Reisch, and that the plaintiff in error should agree to pay $25 per day for each day such beer was not sold at the bar of said hotel. That soon after the second $7,000 mortgage was placed upon the hotel property Richard P. Vickerage and the plaintiff in error dissolved partnership, and Vickerage moved away from Pana. That the interest and taxes were not paid upon said mortgage and upon said hotel property, and the plaintiff in error became involved in litigation over mechanics' liens upon the hotel property and over the contract providing for the sale of Reisch Brewing Company beer at the hotel bar. That thereafter the plaintiff in error and Malinda Vickerage entered into the following contract in writing:

‘Articles of agreement entered into this 19th day of August, A. D. 1907, by and between E. F. O'Farrell, party of the first part, and Malinda Vickerage, party of the second part, witnesseth: That whereas, the said first party now holds title to lots 18, 19, 20 (except eight feet off the west side of lot 20) in Pease's addition to the city of Pana, Illinois, and it being the desire of the parties hereto that the said property be exchanged for other property or sold; and whereas, also, there is now an indebtedness against said property and certain liability of the said first party on a certain contract entered into with George Reisch with regard to said property, and it being the desire of the parties hereto to protect the first party hereto as to said indebtedness and contract: It is therefore agreed by and between the parties hereto that the said first party shall have complete control of said property, and shall have full power to change the incumbrance on the same as shall be circumstances be required for the purpose of the protection, as above mentioned, and to trade or sell the said property to the best advantage the circumstances and his judgment shall permit, and when so disposed of, the proceeds of such disposition shall be conveyed, by proper articles of conveyance, by the said frist party hereto to the said second party hereto; and the said first party agrees to use his best judgment and efforts in the manner of settling indebtedness, liability, and contracts, trade, or sale of said property to procure the greatest value his judgment will permit for the said second party hereto. In witness whereof the parties hereto have set their hands and seals the day and year first above written. E. F. O'Farrell. [Seal.] Malinda Vickerage. [Seal.]’

That soon thereafter the plaintiff in error traded the Flint Hotel property to one Colgrove for a 100-acre farm, Colgrove agreeing to pay all liens and incumbrances upon said hotel property, to give said farm free and clear of all incumbrances and $1,250 in cash, and to loan the plaintiff in error $2,000, secured by mortgage upon said farm. That plaintiff in error deeded said hotel property to Colgrove and a Mrs. Long, and Colgrove deeded said farm to the plaintiff in error, and paid plaintiff in error $1,250 in cash and loaned plaintiff in error $2,000 secured by a mortgage upon said farm. That plaintiff in error conveyed said farm to Malinda Vickerage subject to said $2,000 mortgage, but retained said $1,250 and...