People v. Gerold

• Citation: 265 Ill. 448,107 N.E. 165
• Decision Date: 16 December 1914
• Docket Number: No. 9524.,9524.
• Parties: PEOPLE v. GEROLD.
• Court: Supreme Court of Illinois

265 Ill. 448

107 N.E. 165

PEOPLE

v.GEROLD.

No. 9524.

Supreme Court of Illinois.

Dec. 16, 1914.

Error to City Court of East St. Louis; Benj. W. Pope, Judge.

Edward Gerold was convicted of crime, and he brings error. Reversed and remanded.D. J. Sullivan, of East St. Louis, and H. E. Schaumleffel, of Belleville, for plaintiff in error.

P. J. Lucey, Atty. Gen., Charles Webb, State's Atty., of Belleville, and George P. Ramsey, of Springfield (A. B. Davis, of East St. Louis, of counsel), for the People.

CARTER, J.

Plaintiff in error, Edward Gerold, was indicted at the September term, 1913, of the city court of East St. Louis for withholding, as city treasurer, the funds of said city, in violation of the provisions of section 215 of the Criminal Code (Hurd's Stat. 1913, p. 848). At a trial had at the March, 1914, term of that court the jury returned a verdict of guilty. At the May term judgment was rendered on said verdict and plaintiff in error sentenced to the penitentiary. This writ of error was then sued out.

In November, 1913, the plaintiff in error moved for a change of venue from the two judges of said city court, Vandeventer and Flannigen. The court denied the motion, but called in Judge Benjamin Pope, of the city court of Du Quoin, Ill., before whom the case was tried. It is urged by counsel for plaintiff in error that the trial of the case by Judge Pope was error; that the change of venue should have been granted under the affidavit from the two judges of said city court; and that that court was without authority to call in Judge Pope. It was not urged below, and is not here, that Judge Pope was in any way prejudiced against plaintiff in error. Under the statute as to change of venue in civil cases, which is practically identical with the statute here invoked, this court has several times held that the party applying for a change of venue for prejudice of the judge obtained all the relief to which he was entitled when another judge-one who had no interest in the proceeding-was called in to try the case. Gregory Printing Co. v. De Voney, 257 Ill. 399, 100 N. E. 1066, and cases cited. Counsel concede that this is the rule laid down in civil cases, but insist that the statute should be differently construed as to criminal cases. We see no reason why any such distinction should be made in construing the same words in the criminal and civil statutes. The purpose in both cases is to secure a trial before a judge who is unprejudiced. If the object can be as well attained by not sending the case to another county as by doing so, the expense of the transfer should be avoided. Change of venue statutes should receive a reasonable construction-one that will promote the ends of justice and carry out the purpose of the statute. Chicago, Burlington & Quincy R. Co. v. Perkins, 125 Ill. 127, 17 N. E. 1.

Counsel further argue, however, in this connection, that the refusal to send the case for trial to another county prejudiced plaintiff in error, as the people of East St. Louis were so aroused over the prosecution of this and other cases in which there appear to have been other indictments returned about the same time, that plaintiff in error could not receive a fair trial. The statute for change of venue on account of the prejudice of the judge was not enacted for the purpose of allowing a change of venue from the county on account of the prejudice of the inhabitants. There is another section of the statute on change of venue that covers that class of cases. We do not see how plaintiffin error was prejudiced by the calling in of Judge Pope to try this case.

The indictment consisted of five counts, each charging plaintiff in error, in substantially the same language, with the offense of withholding from Frank Keating, his successor in the office of city treasurer, money, coupons, bonds, bank checks, notes, and other funds and securities belonging to the city of East St. Louis, of the value of $50,000. Before the trial of the case plaintiff in error presented a motion to the court, supported by an affidavit, setting out that it was wholly impossible for him to determine from said indictment in what particulars he was claimed to be in befault and asking for a rule on the prosecution to file a bill of particulars. This motion was allowed, and shortly thereafter the state's attorney filed a bill of particulars, consisting of 33 counts or items. Thereupon the plaintiff in error presented to the court a motion for a rule on the prosecution to make the charges under count or item 30 more specific, on the ground that it was in such general terms as to afford but little, if any, information as to the nature of the charges contained therein. In the same motion plaintiff in error asked the court to impound the records and documents to be used on the trial so they could be inspected by him, urging in support of this motion that the state's attorney had taken into his possession many of the instruments, writings, and public files belonging to the office of the city comptroller and the office of city treasurer, which would be relied on in the trial in support of the various counts in the bills of particulars; that he had refused to permit plaintiff in error to see them; and that in order to make a proper preparation of his defense it was necessary for him to see these various public documents; that he would not have the necessary time or opportunity during the actual trial of the case. The court overruled the motion and refused to require the state to make item 30 more specific, and refused to impound the documents or to compel the state's attorney to allow plaintiff in error to examine them at that time.

After the jury was selected, plaintiff in error, by his attorneys, objected to the appearance of Thomas M. Webb as an attorney for the prosecution in the case, for the reason that for several years last past he had been the plaintiff in error's attorney and as such attorney had discussed in confidence the various items or charges involved in the indictment, setting out in some detail in what respect said Thomas M. Webb had advised with him on matters involved in the prosecution of this cause. The trial judge overruled this motion, giving as the reason that said Webb was an officer of the court and an attorney of experience and that he did not believe said attorney would do anything not becoming or befitting such officer. Thereafter Thomas M. Webb filed an affidavit giving his version of his relations, as an attorney, with plaintiff in error. It is most earnestly argued by counsel that the trial court erred in overruling these motions. We shall consider these questions later, as they can be better discussed after the facts have been stated.

At the time of the trial plaintiff in error was 34 years of age. He took office as treasurer of the city of East St. Louis in May, 1911, for the term of two years, serving as such treasurer for that term and giving bond as required by law. Prior to his election he had assisted his father in conducting a moving and storage business. His reputation appears to have been excellent. He had gone through the grammar grades of the public schools, but had not attended high school. He had no knowledge whatever of bookkeeping and knew nothing of the duties of the office of treasurer. After his election he placed in charge of the office an elderly gentleman, William H. Matlack, who had been in the treasurer's office in the same capacity during the administration of Neims, who was the predecessor of Gerold's predecessor, Holten. Matlack, from the record, appears to have been quite familiar with the duties of the treasurer's office and the manner in which its business had been conducted. His competency or honesty was not questioned by either party at the trial. During the administration of the office under plaintiff in error, it seems to be conceded, the business was conducted under the same general system as it had been during the previous administrations; the same books being used and the same safeguards adopted to protect the interests of the public. It would be more accurate, perhaps, to say the same lack of safeguards, for the bookkeeping and management of the office under plaintiff in error's administration, as well as several previous administrations, were without question extremely defective. Near the expiration of the plaintiff in error's term of office an expert accountant, Harry G. Ambrose, from St. Louis, was employed by the city council of East St. Louis to examine and audit the books of the various offices, and such irregularities were discovered in the books of the treasurer's office that this indictment resulted. It seems to be conceded, also, that as a result of the same examination other indictments were returned by the same grand jury against other officials or employés of the city. During the term of office of plaintiff in error, and apparently for several years previous, the city of East St. Louis had been making a large number of local improvements, such as building sewers and paving streets and sidewalks, for most of which bonds, with interest coupons sttached, had been issued for deferred payments. Many of these bonds and coupons were coming due during the two years plaintiff in error was in office. Claims in great numbers were also presented for payment every month to meet the expenses of the various departments of the municipality, including labor and contracts. The testimony shows that the moneys received by the city from various sources were frequently insufficient to meet its claims, and often certain claims were not paid for several months after being presented.It is obvious from the testimony that the city had never established a proper system of bookkeeping as to the moneys received and paid out. The system of keeping books in all these various departments was so loose as to furnish little or no check by one department upon another, and it is apparent from all...