People v. McElvain

• Decision Date: 25 October 1930
• Docket Number: No. 20007.,20007.
• Citation: 172 N.E. 131,341 Ill. 224
• Parties: PEOPLE v. mcELVAIN.
• Court: Illinois Supreme Court

341 Ill. 224

172 N.E. 131

PEOPLE

v.mcELVAIN.

No. 20007.

Supreme Court of Illinois.

Oct. 25, 1930.

Commissioner's Opinion.

Error to Circuit Court, Hamilton County; Julius C. Kern, Judge.

Claude McElvain was convicted for larceny of a hog, and he brings error.

Affirmed.

R. E. Smith, of Benton, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., George W. Hogan, Jr., State's Atty., of McLeansboro, and Joel C. Fitch, of Albion, for the People.

PARTLOW, C.

The grand jury of Hamilton county indicted Claude McElvain, William Sinks, and Cleve Riley for the larceny of a hog. The indictment was nollied as to Riley, Sinks forfeited his bond, McElvain (Hereafter called the defendant) was tried, found guilty, and sentenced to the penitentiary, and his case comes to this court on a writ of error.

The evidence shows that Joe and Earl Maulding, who are brothers, lived in the city of McLeansboro, in Hamilton county, and were dealers in hogs and other stock. They had two hogs in a pen in or near the city, close to some tanks of the Standard Oil Company. The larger of these hogs was a barrow weighing about 225 pounds and worth $25. Joe Maulding saw this hog in this pen on Saturday evening, November 24, 1928. On the next morning he visited the pen and the hog was gone. The conditions in the pen indicated that the hog and been slaughered and large quantities of blood were found. There were tracks showing that the hog had been dragged out of the pen to a place where there were tracks of a wagon made by wheels having a tire about three inches wide. Maulding followed the tracks to the home of Cleve Riley and form there to a point on a paved highway. He testified that the wagon was drawn by horses that were shod. He was informed that defendant had a wagon with a wide tire. He went with John Bradwell to defendant's house and found a wagon which had a wide tire. In the bed of the wagon they found hog hair, and blood which was apparently fresh. They told defendant what they had found in his wagon, and he said that it might be that some one had used his team and stolen the hog. A search warrant was obtained immediately and the house of Riley was searched. A skinned shoulder of fresh pork was found. At the home of defendant was found a side of pork that was skinned, and on the dining table was cooked pork, back bones and ribs. About half a gallon of fresh sausage was also found.

Grant Sayres testified that he went to the home of defendant on Saturday evening, November 24, 1928, about dark. Defendant, his wife, and Riley were there. William Sinks came shortly afterwards. Defendant and Sinks left about 8 o'clock and shortly returned and carried into the house a dead hog, which had been stuck with a knife. The hog weighed about 200 pounds. The witness helped defendant and Sinks skin and cut it up. Riley was there but did not help. Defendant put the skin and entrails into a sack and the meat was stacked in the kitchen. Defendant asked the witness to drive him to the fairground. Defendant put a sack with something in it in the back of the car. The sack looked like the one in which the defendant had put the hide and entrails. They drove to a point near the fairground and the defendant got out with the sack. The witness turned his car around, defendant got in, and they went back to the house, where the witness had a drink of whisky and went home. He testified that when he returned to the house he did not see any of the meat.

Cleve Riley, who was jointly indicted with defendant, testified that he went to defendant's house about 7 o'clock on the evening in question. He went from there with Sinks and defendant to a place ‘down by the oil house.’ He stood in the road and saw defendant kill a hog by sticking it with a butcher knife. They placed it in defendant's wagon. They then went to Riley's house, where they got a bedstead and put it in the wagon. When they got to defendant's house Sinks and defendant carried the hog into the house. Riley testified that he was pretty drunk and slept by the stove and did not notice what was done with the hog. He went home about midnight and took with him a shoulder of the hog, which defendant gave him. On cross-examination he stated that he had not been promised immunity from prosecution but that he had served two terms in the penitentiary, one for larceny and the other for the murder of his brother.

Defendant testified that he had a team and wagon and did any jobs of hauling he could get. He kept a team in a barn about two blocks from his residence. On November 24, 1928, one of his horses was shod and the other had no shoes. On the day before the hog was stolen a goat owned by him died. He skinned the goat and threw the bloody hide into the wagon. He testified that he did not believe there was any hair in the wagon bed on the morning after the hog was stolen and if there was any hair it was goat hair; that when his house was searched for meat they only found a ‘middling’; that he had bought the middling from Joe Bethel on the Friday before, together with a hog's head, which he ground up into sausage; that the meat on the table was sidemeat; that Grant Sayres was at his house on the evening the hog was stolen, reaching there about 7 o'clock. Riley was not there at that time. After Sayres arrived at the house defendant went out to the barn, and when he returned to the house Riley was on the back porch and had a hog which weighed about 150 pounds. Defendant and Riley, or defendant and Sinks, took the hog into the house, where it was cut up. Riley had been drinking but was not so drunk that he could not help. The hog had not been dead long. He did not know where the hog came from. He did not put the skin and entrails in a sack and take them to the fairground. He went to the fairground with Sayres to get some whisky. When he returned from the fairground the hog was gone and he got no part of it.

Joe Bethel Testified that on Friday before the hog was stolen he sold defendant a hog's head and a middling.

Gerry Sinks testified that he is a brother of William Sinks and a brother-in-law of defendant and lived at defendant's house. On the evening of November 24 he went with a young lady to a picture show and then took her home. On his way home he met Riley carrying a sack filled with hog meat. Riley asked him to go home with him, saying that they would have pork chops for breakfast. The witness went to the defendant's house and went into the kitchen. There was no hog meat there except a middling. On the following morning he ate breakfast at defendant's house. They had sidemeat but no ribs or back bones. He saw defendant buy a hog's head from Bethel on the preceding Friday and it was ground into sausage and placed in fruit jars. On Thursday night a goat belonging to defendant died. They skinned it and threw the bloody hide into defendant's wagon.

It is insisted that the evidence fails to establish the guilt of defendant beyond a reasonable doubt; that the most that can be said of the evidence is that defendant may have been associated with the parties who had possession of some of the meat, which is not sufficient to sustain a conviction; that there is no evidence that tends to show that the meat found in defendant's house was the meat of a male hog or of a barrow; that the only evidence of the corpus delicti was the evidence of Riley, who admitted that he had served one term in the penitentiary for killing his brother and another term for larceny; and that the judgment should not be permitted to stand on the unreliable confession of Riley.

The question as to whether defendant, under the evidence, was guilty or innocent was a question of fact for the jury. They were the judges of the weight to be given to the testimony. People v. Harrison, 318 Ill. 316, 149 N. E. 236. A reviewing court will not substitute its judgment for that of the jury where no prejudicial error has been committed and the verdict does not appear to be the result of passion or prejudice. People v. Lewis, 313 Ill. 312, 145 N. E. 149. Where the evidence is conflicting, depending upon the credibility of opposing witnesses, a verdict will not be disturbed unless it is so...