People v. Goldberg

• Citation: 327 Ill. 416,158 N.E. 680
• Decision Date: 08 December 1927
• Docket Number: No. 18301.,18301.
• Parties: PEOPLE v. GOLDBERG.
• Court: Illinois Supreme Court

327 Ill. 416

158 N.E. 680

PEOPLE

v.GOLDBERG.

No. 18301.

Supreme Court of Illinois.

Oct. 22, 1927.

Rehearing Denied Dec. 8, 1927.

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

Isadore L. Goldberg was convicted of larceny, and he brings error.

Reversed and remanded.Thomas J. Rowe, Jr., and Henry Rowe, both of St. Louis, Mo., and J. Fred Gilster, of Chester, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and William H. Schuwerk, State's Atty., of Chester, and Virgil L. Blanding, of Springfield, for the People.

THOMPSON, J.

At the March term, 1925, of the Randolph county circuit court plaintiff in error, Isadore L. Goldberg, was charged, in an indictment containing two counts, with larceny and receiving stolen property. At the September term, 1925, of said court a second indictment was returned against him, which contained six counts; the first and second being identical with the two counts of the earlier indictment, and the other four counts charging, each in different language, conspiracy to commit larceny. There was a demurrer to the second indictment, which was sustained as to counts 1, 2, 4, and 6, and the state was required to elect upon which of the remaining counts it would proceed to trial. The state elected to proceed to trial on the third count of the indictment, which charged plaintiff in error with conspiring with his codefendants to steal the goods and chattels described in the first indictment and in the first and second counts of the second indictment. There was a mistrial, and the record under the second indictment stood in this condition when plaintiff in error was placed on trial on the first indictment. On the second trial he was convicted of larceny, and he prosecutes this writ of error to review the judgment.

Plaintiff in error is the proprietor of the Goldberg Supply Company and has been in business at Fifteenth and Olive streets, in the city of St. Louis, Mo., for the past 20 years. He is 45 years old and lives at 35 Lewis place, St. Louis, with his wife. About April 1, 1924, in response to an advertisement, he went to the Southern Illinois Penitentiary, at Menard, to bid on some scrap cloth and waste paper. At the prison he talked with Thomas M. Gore, chief clerk, and William G. Foehr, superintendent of the clothing factory. It was after 5 o'clock when they finished their conversation, and plaintiff in error remained over night at the prison, occupying a room with Gore. About three weeks later a loaded car was delivered to the Wabash, Chester & Western Railroad Company by the prison authorities consigned to the Goldberg Supply Company in St. Louis. The car was loaded during the afternoon and moved out of the prison yard after 5 o'clock in the evening, April 19, 1924. The car was weighed in East St. Louis during the evening of April 23. It was not sealed when placed on the siding near the river at Menard on the evening of April 19, and it remained there in that condition that night and perhaps longer. It was received in St. Louis April 26, the Goldberg Supply Company was notified, and one of its drivers unloaded the car and hauled the goods away in a small truck. An invoice of the shipment was sent to the Goldberg Supply Company by the chief clerk of the Southern Illinois Penitentiary. It shows that the car contained 12 cases, containing 4,640 pounds of new white rags, at 5 cents a pound, $232; 6,460 pounds of mixed rags in bags, at three cents a pound, $193.80; 8 1/2 tons of baled paper, $68; crating and boxing, $7; total, $500.80. The invoice and the freight bill were paid by checks of the Goldberg Supply Company. There is no controversy about any of the foregoing facts.

Foehr testified that he first met plaintiff in error when he was called to the front office at the prison about the 1st of April, 1924, and directed to show him the scrap which was being offered for sale; that he took plaintiff in error to the warehouse, where they met Wesley Blair, a convict, who was serving as a clerk; that while they were examining the scrap plaintiff in error proposed that the employees of the prison include in his shipment some of the new stock will the scrap and that he would pay them well for whatever they included; that he took plaintiff in error to Gore, and did not see him after that until he called on him in St. Louis, about the 1st of May; that a car was loaded in the latter part of April and 10 or 12 cases of new stock were put into it with the rags; that the car was billed to the Goldberg Supply Company, and that he called on plaintiff in error in St. Louis a short time afterwards and received from him $100 in cash; that about six weeks later he received by registered mail an envelope from plaintiff in error which contained $700.

Gore testified that he was introduced to plaintiff in error by Foehr about 5:30 p. m. on the day plaintiff in error called at the prison to look at the scrap which they had for sale; that there was a carload of rags on the premises, but he refused to let plaintiff in error have these because they had been promised to another person; that plaintiff in error suggested that they include in the car to be shipped to him later some of the new stock and that he would dispose of the stock and divide the profits; that he invited plaintiff in error to remain over night with him and that they talked about the matter further; that he finally consented to the plan and subsequently included new stock in the car which he shipped to the Goldberg Supply Company; that he called on plaintiff in error in St. Louis about the 1st of July and asked him for some money; that plaintif...