People v. Kopman

• Decision Date: 17 December 1934
• Docket Number: No. 22444.,22444.
• Citation: 193 N.E. 516,358 Ill. 479
• Parties: PEOPLE v. KOPMAN.
• Court: Illinois Supreme Court

358 Ill. 479

193 N.E. 516

PEOPLE

v.KOPMAN.

No. 22444.

Supreme Court of Illinois.

Dec. 17, 1934.

Error to Circuit Court, Sangamon County; Lawrence E. Stone, Judge.

S. W. Kopman was indicted upon a charge of embezzlement. To review a judgment quashing the indictment, the People of the State of Illinois bring error.

Reversed and remanded, with directions.

Otto Kerner, Atty. Gen., and A. H. Greening, State's Atty., J. J. Neiger, Thomas F. Smith, and Thomas W. Hoopes, all of Springfield, for the People.

C. H. Jenkins and Walter T. Day, both of Springfield, for defendant in error.

JONES, Chief Justice.

Defendant in error, S. W. Kopman, was indicted in the circuit court of Sangamon county upon a charge of embezzlement. The indictment contains twelve counts. With minor differences each count charges that S. W. Kopman and M. R. Kopman were distributors of motor fuel as copartners under the name of Perfect Motor Fuel Company and operated their business in the city of East St. Louis, in St. Clair county; that from June 1, 1931, to January 15, 1932, S. W. Kopman, as manager of the company, sold 380,045 gallons of motor fuel and during said period collected and received 3 cents for each gallon of motor fuel sold, amounting to the sum of $11,401.35, being the property and money of the state of Illinois; and that on March 1, 1932, Kopman did at the county of Sangamon, in the state of Illinois, feloniously embezzle and fraudulently convert said sum to his own use. The first five counts charge that the Kopmans were licensed and bonded distributors. In each count, except the eighth and twelfth, there is an allegation as to a demand having been made upon Kopman for the payment of the tax. The twelfth count concludes with an allegation that by force of the statute the embezzlement amounted to larceny. Upon the motion of defendant in error the circuit court quashed the indictment. The people have prosecuted a writ of error to this court to review the order quashing the indictment.

Under a limited appearance for the purpose of questioning the jurisdiction of this court because of want of personal service upon him, defendant in error has filed a motion to dismiss the writ of error and to quash service upon him by publication. The motion was taken with the case. Rule 67 of this court provides for service by publication upon nonresident defendants whenever any plaintiff in error shall file in the office of the clerk an affidavit showing the nonresidence of such defendant. It appears that defendant in error is a resident of the state of Missouri. Service was had upon him in compliance with the provisions of rule 67. He contends that the suing out of a writ of error is the commencement of a new suit and requires the issuance and service of original process, and that a personal judgment or decree cannot be predicated upon constructive service by publication. Section 17 of division 13 of the Criminal Code, as amended in 1933 (Laws of 1933, p. 466 [Smith-Hurd Ann. St. c. 38, § 747]) provides: ‘The People may sue out writs of error to review any order or judgment quashing or setting aside an indictment or information. The defendant or defendants shall not be held in jail or to bail during the pendency of any writ of error sued out by the People.’ Before the amendment section 17 (Smith-Hurd Rev. St. 1931, c. 38, § 747) provided that ‘in no criminal case shall the people be allowed an appeal, writ of error or new trial,’ and an order quashing an indictment or information was not reviewable. People v. Barber, 348 Ill. 40, 180 N. E. 633, 92 A. L. R. 1131. By another act (Laws of 1933, p. 490 [Smith-Hurd Ann. St. c. 38, § 780 1/4]) the Legislature added section 13 to division 15 of the Criminal Code. By that section it is provided: ‘Except as otherwise provided in this Act, proceedings for review of criminal cases and for the examination of sureties on any bond, shall be the same as in civil cases.’ Without this section defendant in error's contention that rule 67 applies only in civil causes might have some foundation. The legislation in 1933 was remedial and intended to supply those defects in the law which prevented a review of an order quashing an indictment. Prior to the year 1933 the statutory provisions for service by publication upon defendants in cases brought to this court by writ of error applied only to civil matters, but from section 13 of article 15 it is apparent that the Legislature intended to provide for service by publication in criminal matters as well as civil. Unless service by publication can be had upon the defendant his voluntary absence from the jurisdiction of the reviewing court would render the statute inoperative. A determination against the defendant of the issues here involved will not constitute a personal judgment against him. The sufficiency of the indictment is the vital matter of inquiry. A decision on that question has nothing to do with a determination of the guilt or innocence of the defendant. The motion is denied.

Section 2 of the Motor Fuel Tax Act (Smith-Hurd Ann. St. 1933, c. 120, § 418) provides: ‘A tax is hereby imposed on the privilege of operating motor vehicles upon the public highways of this state after July 31, 1929, at the rate of three cents per gallon of all motor fuel used in such motor vehicles upon such public highways.’ Other sections of the act define a distributor of motor fuel, provide for the licensing and bonding of distributors and for monthly returns to the Department of Finance. Section 6 of the act (Smith-Hurd Ann. St. c. 120, § 422) requires each distributor to collect from the purchaser at the time of sale 3 cents per gallon on all motor fuel sold, and that at the time of making his monthly return the distributor shall pay to the Department of Finance the amount so collected, less the actual cost of making the collection and payment, not to exceed 2 per cent. of the amount collected. The statute makes the distributor the agent of the state as a collector of the tax. It comes to his hands while he is acting in a fiduciary capacity as agent of the state for its collection. It in no sense belongs to the distributor but is the property of the state. Section 15 of the act, as amended by an act approved July 3, 1931 (Laws 1931, p. 771 [Smith-Hurd Ann. St. c. 120, § 431]), provides: ‘Whoever * * * wilfully fails or refuses to make payment to the Department of Finance as provided either in Section 6 or Section 7 shall be punished by a fine of not to exceed $5,000 or by imprisonment in the penitentiary for not less than one year nor more than five years or by both such fine and imprisonment.’

The indictment was predicated upon section 74 of division 1 of the Criminal Code (Smith-Hurd Ann. St. 1933, c. 38, § 207), which provides: ‘Whoever embezzles or fraudulently converts to his own use, or secretes, with intent to...