People v. Fitzgerald, 13787.
| Decision Date | 21 April 1921 |
| Docket Number | No. 13787.,13787. |
| Citation | 297 Ill. 264,130 N.E. 720 |
| Parties | PEOPLE v. FITZGERALD et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Du Page County; Mazzini Slusser, Judge.
Thomas Fitzgerald and another were convicted of burglary and larceny, and they bring error.
Judgment affirmed.James F. Fardy, of Chicago, for plaintiffs in error.
Edward J. Brundage, Atty. Gen., C. W. Reed, State's Atty., of Naperville, and Albert D. Rodenberg and William E. Trautmann, both of Springfield (Charles W. Hadley, of Wheaton, of counsel), for the People.
Plaintiffs in error, Thomas Fitzgerald and Ray Mealy, were indicted at the October term, 1920, of the circuit court of Du Page county on the charges of burglary and larceny. The indictment consisted of eight counts, some of which charged the plaintiffs in error with burglarizing a certain freight railroad car of the Chicago & Northwestern Railway Company, a corporation, with intent to steal the property of the railway company. Other counts charged the burglary of said car with intent to steal the property of the Firestone Tire & Rubber Company, a corporation. Two counts charged plaintiffs in error with the larceny of the property of the railway company, and one count charged the larceny of the property of the Firestone Tire & Rubber Company. The last or eighth count of the indictment charged the burglary of the freight car of the railway company with intent to steal the property of divers persons unknown. Upon the trial of the case the jury returned two verdicts-one finding the plaintiffs in error guilty of burglary in manner and form as charged in the indictment, finding the age of Fitzgerald to be 22 years and the age of Mealy to be 33 years; the other a verdict finding the plaintiffs in error guilty of larceny in manner and form as charged in the indictment, finding the value of the property to be $18 and the ages of the plaintiffs in error to be as found by the other verdict. The court sentenced Mealy to the penitentiary at Joliet, as provided by the Indeterminate Sentence Law (Hurd's Rev. St. 1919, c. 38, §§ 500, 501), and sentenced Fitzgerald to the state reformatory at Pontiac, under the discretion given to trial courts in case of defendants of the age of Fitzgerald.
Plaintiffs in error contend that there could not be two separate verdicts rendered against plaintiffs in error for separate offenses, and they object that no judgment could be given upon these two verdicts because one verdict found the plaintiffs in error guilty of burglary and the other of larceny, which are offenses punishable in a different manner, and that these two verdicts cannot be merged into one judgment. If the crimes of burglary and larceny were separate and distinct felonies committed in separate transactions, it would unquestionable be true that they could not be joined in the same indictment, but if the plaintiffs in error here were guilty they were guilty of the commission of but a single transaction, and the fact that that transaction may have been both burglary and larceny does not preclude their being charged with both in the same indictment or even in the same count. Lyons v. People, 68 Ill. 271;Herman v. People, 131 Ill. 594, 22 N. E. 471,9 L. R. A. 182;Love v. People, 160 Ill. 501, 43 N. E. 710,32 L. R. A. 139. It has long been the rule that, where a count for larceny is joined in the same indictment with a count for burglary and a general verdict is returned, the logical effect of the verdict is that the defendants are guilty as charged in each count (Townsend v. People, 3 Scam. 326;Holliday v. People, 4 Gilman, 111; Curtis v. People, Breese, 256; Lyons v. People, supra), and in a case where the indictment charges in one count the breaking and entering and in another count the stealing at the same time and place, and the defendant is found guilty generally, and the punishment imposed is one which is authorized to be inflicted for the offense charged in any one or more counts, the verdict must be sustained. This appears to be the general rule in this country. Wharton's American Law (1st Ed.) § 415; Lyons v. People, supra, and cases there cited.
Under the rule as established by Curtis v. People, supra, that the effect of a general verdict is that the defendants are found guilty of each offense committed in the same transaction, clearly the effect of these two verdicts is a finding, as in the case of a general verdict, that the defendants are guilty as charged in some one or more counts charging burglary and some one or more counts charging larceny. They have nevertheless been found guilty of but one transaction. Whether this verdict is one general verdict or two separate verdicts is of no consequence in a case such as this. Having been found guilty of burglary, their commitment under the Indeterminate Sentence Act is for a period of from one to twenty years, and their commitment for larceny, which is for from one to ten years, necessarily runs concurrently, as both offenses are but one transaction. While there appears to have been no reason why the jury should not have returned a general verdict finding the defendants guilty of burglary and larceny as charged in the indictment, there is likewise no good reason for saying that it was error to return separate verdicts. There is no more reason for holding that the state's attorney should nolle pros. as to one charge when two separate verdicts are returned than there would be for holding that such should be done where one general verdict is returned finding the defendant guity of both charges.
Plaintiffs in error also contend that there was no proof that the Chicago & Northwestern Railway Company is a corporation, as alleged in the indictment. Section 486 of the Criminal Code (Hurd's Rev. St. 1919, c. 38) makes proof of user prima facie proof of corporate existence. Examination here shows that the Chicago & Northwestern Railway Company was conducting a railroad, had freight cars, right of way, main line, side tracks, etc., and was doing the business of a common carrier; that is, it was operating a railroad. By the first and second sections of chapter 114, relating to railroads, it is provided that those persons who desire to operate a railroad shall organize a railroad corporation, and it was held in Goddard v. Chicago & Northwestern Railway Co., 202 Ill. 362, 66 N. E. 1066, that no private person...
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...as that enjoyed by a bailee or a carrier is sufficient to prove ownership as against one who has stolen the property (People v. Fitzgerald, 297 Ill. 264, 130 N.E. 720; People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817), and in this case it is clear that such a property right was in Chicago Ex......
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