People v. Hermens

• Decision Date: 24 March 1955
• Docket Number: No. 33357,33357
• Citation: 5 Ill.2d 277,125 N.E.2d 500
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Sam HERMENS, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 500

125 N.E.2d 500

5 Ill.2d 277

The PEOPLE of the State of Illinois, Defendant in Error, v.Sam HERMENS, Plaintiff in Error.

No. 33357.

Supreme Court of Illinois.

March 24, 1955.

Ralph T. Smith and Irving M. Wiseman, Alton, for plaintiff in error.

Latham Castle, Atty. Gen., and Richard W. Husted, State's Atty., Carrollton (Fred G. Leach, Decatur, and George W. Schwaner, Jr., Springfield, of counsel), for the People.

MAXWELL, Justice.

San Hermens, plaintiff in error, Hal Griffith and Clarence Davis were, on March 5, 1954, indicted for the larceny of nine hogs from a farm in Greene County.They were arraigned on March 19, 1954.Griffith pleaded guilty and was sentenced to the penitentiary for a term of three to five years.Davis pleaded guilty and applied for probation.A hearing on this application was held and the decision was pending at the time of plaintiff in error's trial.Plaintiff in error, hereinafter designated as defendant, pleaded not guilty, was tried by jury, convicted and sentenced to the penitentiary for a term of three to five years.He brings the cause here by writ of error.

On the night of February 17, 1954, nine hogs were taken from the uninhabited farm of one Ernie Ballard, were loaded into the car belonging to codefendant Davis, taken to Woodson, near Jacksonville, where they were sold by codefendant Griffith for the sum of $100.The defendant Hermens contends the evidence heard by the jury is not sufficient to show beyond a reasonable doubt that he participated in this larceny, and if he did, he was too intoxicated at the time to form the specific intent which is a necessary element of that crime.

This case involves three very bibulous miscreants and nine little pigs that illegally went to market.Alcohol, one of our best clients, attendance-wise, played the leading role, supported by the defendants, its puppets.The defendant Hermens testified that he and Mrs. Hermens spent the day of February 16 at their home drinking whiskey, wine and beer; that on the morning of the 17th they resumed this fascinating sport, after he had gone to town to replenish their fast shrinking supply, and on that day he consumed a quart of whiskey, a quart of wine and eighteen botties of beer.In the early afternoon Griffith and Davis arrived, apparently unheralded and without proconceived plan, bringing with them, at least in the unconsumed state, only a small contribution to the refreshment supply, insufficient to offset the increase in consumption engendered by the jolly fellowship of the occasion.So the four of them, in Davis's car, motored to town to replenish their spirits and brighten the spirits of the supplier.

While gay camaraderie and perfect harmony ruled the day on February 17, the dull and sober atmosphere of the court room, at Hermens's trial, completely destroyed the beautiful friendship and loyal devotion theretofore existing between the parties.As a consequence, we have difficulty in accurately narrating the subsequent events.According to the testimony of the Hermenses and their still-devoted friend, Griffith, they returned directly to the Hermens home, where Hermens, completely overcome by the affluent events of the day, passed out.But according to Davis, whose friendship was as brief as his acquaintance, they did not return directly to the Hermens home, but Hermens directed them to drive past the Ballard farm, not just because of his sentimental attachment for the place where he had lived as a child, but to view some readily marketable shoats residing there in a temptingly unprotected environment.Mrs. Hermens did not consciously participate in this inspection expedition, as she slept peacefully in the rear seat of the Davis car.At this point, to be fair with Mrs. Hermens, we should point out that she was enjoying the comforts of the back seat before and not after the shoats.Unfortunately, as subsequent developments proved, the parties failed to perceive that one of the nominated quarry had some very distinctive marking, as described by the owner 'his ears were red and there was a little red back of his tail and the rest of him was all white.'We are unable to locate the 'little red back of his tail,' and still remain on the same pig, but for our purpose here the red ears will suffice.But to get back to the Davis version of our story, having completed their preliminary survey for the contemplated project, they returned to the Hermens home for a refreshing interlude, awaiting nightfall.Then under cover of darkness, Davis, Griffith and Hermens stealthily returned for a more intimate association with the shoats.Having previously reconnoitered the physical surroundings and selected their choice of the pigs, according to ease of handling and suitability for their transportation facilities, they parked their car close to the fence at a corner of the pig lot.They then herded the desired number of their unsuspecting quarry into this corner and completed their capture by seizing them, one at a time, by the extremities which the housewife would best recognize as being the shanks of the hams, passed them over the fence to the one who gently, or otherwise, deposited them through the back window in the back part of or on the back seat of the automobile, in such manner that those previously placed there did not escape.On the ride to the town where the prospective new owner resided, the three culprits occupied the front seat of the car with their load of pay dirt in the rear.The record, at least, is silent during this ride.The Davis version of the story then leaves him and Hermens sitting, unoffendingly, in a tavern until Griffith returns, sans shoats, but with a $100 check.Then, being one or two o'clock in the morning, with a bright and flush tomorrow to look forward to, the three of them procured a room from a not-too-discriminating hotel clerk, who 'wouldn't have rented them a room if they had been drunk' but was willing to overlook that they smelled like whiskey but 'no more than usual' and the fact that their clothes weren't 'very clean,' and retired, registered as 'Hal Griffith and guests.'Arousing about 8:00 A.M. on the morning of the eighteenth, their first stop was a tavern in the vicinity of the hotel for a liquid breakfast.There they found a trusting bartender willing to exchange some custom and cash for the check.En route to Hermens's home, says Davis, Griffith divided the spoils, giving him $25 and laying some currency of an unknown amount on Hermens's knee.Davis couldn't say that Hermens took it but he didn't find it in the car.After stopping at a garage to get the high gear of their car back in operation, having tired of traveling in second gear, the proceeded to Hermens's home where Sam got it over with as Mrs. Hermens 'gave Sam cain for being out all night.'Sam's reaction or explanation is not in the record although there was some questioning by counsel bearing the implication that Mrs. Hermens brandished the domestic butcher knife.The principals did not regard this as serious, nor shall we.Sometime during the morning, between drinks, Griffith suggested to Davis that his car was 'a sight.'Davis said he drove it across the road from Hermens's home, parked it near a schoolhouse and attempted to wash it out.Apparently giving up in despair, he abandoned it there and hitched a ride to the county seat.Arriving there about noon, still 'loaded,' both financially and otherwise, he spent the rest of the day touring the taverns of the town, he didn't know how many but he guessed all of them.About 11:00 P.m., with his guilty conscience becoming more than the finer traits of his character could bear, he sought sanctuary at the county jail where the sheriff put him up for the night.This new association and law-abiding influence resulted in full repentance for his sins and a conscience-relieving confession signed and delivered into the hands of the sheriff on February 20.The day he testified in court was the forty-fourth day he was enjoying as the sheriff's guest.

There was other evidence offered by the State, including the stark, mute testimony of the pigs.Since these famous creatures are going to become a part of the permanent archives of this court by reason of the six beautiful photographs attached to the record of this case, and will remain here as a precedent for the guidance of all the courts and counsel in all future pig cases in this State, we should relate their further thrilling experiences after the midnight ride in the back seat of the Davis car.Their new owner, temporarily at least, was a local stock dealer and auctioneer residing in Jacksonville who apparently had no qualms about making a profitable deal late at night, so he willingly exchanged his $100 check for the nine little shoats.By coincidence he had on auction sale over at Mt. Sterling in Brown County the following day, so he took the shoats along and found a new owner who unknowingly gave him a $62 profit on the deal.But the stock dealer hadn't permanently parted company with the little pigs that had gone to market.About a week later, their first owner and the sheriff, on the trail of the lost animals, called upon him to take them to the farm of the purchaser.And when the first owner saw that little shoat with the red ears, and when he spoke to them and they came running to him, he knew his lost prodigals had been found.Upon their return home they were photographed, in six different poses, both with and without a group of their brothers and sisters.While these photographs are not in color, to show the identifying red ears, they are not without color, dramatically.In addition to the aesthetic and artistic value which they add to the...