People v. Mooney

• Decision Date: 21 June 1922
• Docket Number: No. 14553.,14553.
• Citation: 135 N.E. 776,303 Ill. 469
• Parties: PEOPLE v. MOONEY.
• Court: Illinois Supreme Court

303 Ill. 469

135 N.E. 776

PEOPLE

v.MOONEY.

No. 14553.

Supreme Court of Illinois.

June 21, 1922.

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

Thomas M. Mooney was convicted of embezzlement, and he brings error.

Reversed and remanded.Philip W. Barnes and B. O. Sunner, both of Lawrenceville, and Elbert B. Vandervort, of Salem, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Otto W. Longnecker, State's Atty., and James B. Searcy, both of Springfield, and Gee & Gee and Shaw & Huffman, all of Lawrenceville, for the People.

STONE, J.

Plaintiff in error was indicted in the circuit court of Lawrence county on the charge of embezzlement of the funds of the Bridgeport State Bank. A bill of particulars was filed in the case setting out 18 certain promissory notes alleged to have been placed by Mooney, who was cashier of the Bridgeport State Bank, among the assets of the bank, and the face value of said notes, amounting to $2,937.41, was by Mooney taken from the funds of the bank and converted to his own use. He was convicted, and brings the cause here for review.

The grounds upon which plaintiff in error seeks reversal here are that the Lawrence county circuit court should have quashed the indictment on motion; that there was a variance between the charge and the proof as to the ownership of the property alleged to be taken; that it was error for the court to refuse to grant a new trial upon the discovery, after the return of the verdict, that one of the jurors who heard the case was a member of the grand jury which returned the indictment; and that the court erred as to instructions and admission of evidence.

The basis of the contention that the motion to quash the indictment should have been sustained is that, while the indictment was brought under section 75 of the Criminal Code (Hurd's Rev. St. 1921, c. 38), relating to embezzlement, it should have concluded with the charge of larceny, which it did not do. The indictment charges that the plaintiff in error, as cashier of the Bridgeport State Bank, feloniously embezzled and converted to his own use, with the intent to do so, a sum of money amounting to $2,937.41. This was in substantial compliance with the statute. By section 75 of the Criminal Code, when a person shall be found guilty of the acts thereindescribed as embezzlement, he shall be deemed guilty of larceny. This does not require that the language of the indictment include the statement or charge that the defendant is guilty of larceny. The gist of the crime of embezzlement consists in the conversion to his own use of the funds of another, which the defendant has in his possession by reason of a fiduciary relation existing between the defendant and the owner of the property. When this relation is stated under the charge of conversion, so that it may be readily understood, that is all that is required, and a general verdict of guilty is sufficient, if the evidence warrants it. Lycan v. People, 107 Ill. 423. The crime of embezzlement is complete when there is fraudulent conversion by the accused of money or property of his employer without his consent. The distinguishing element in embezzlement in that the property is lawfully in the possession of the accused by some fiduciary relation between the accused and the owner. People v. Ehle, 273 Ill. 424, 112 N. E. 970. The indictment in this case sufficiently chargs the crime of embezzlement.

As to plaintiff in error's contention that there is a variance in the record between the charge of ownership in the indictment and the proof relating to that matter, the record shows that the plaintiff in error testified that he placed a number of notes, among which were the 18 notes in question, in the assets of the Bridgeport State Bank, which were from time to time approved, along with other assets of the bank, at the different meetings of the directors. The members of the finance committee and board of directors of the Bridgeport Bank denied that any authority was given or any conversation had tending to lend assent to any such transaction by plaintiff in error. It was a question of fact for the jury whether the ownership of the property was proved as alleged. If the jury believed that the notes were taken over by the bank from the receiver with the consent of the officers of the bank, then the receiver would be the one entitled to the money; and if, on the other hand, they believed that no such arrangement was made, but that the taking of the money from the funds of the Bridgeport Bank was unauthorized, then the funds would be the funds of the bank. There was evidence in the record on behalf of the people that tended to show that the money charged to have been embezzled was the property of the bank. We cannot, therefore, say here, where the question is one of law and fact, that there was a variance between the allegations and the proof.

Concerning plaintiff in error's third contention, that an incompetent juror sat in the case, the record shows that one of the jurors, Porter Lofton, was a member and the clerk of the grand jury which returned 10 indictments against plaintiff in error, including the one in question here. On motion for new trial, affidavits of plaintiff in error and others were filed to show that Lofton, whose name appears to the verdict as foreman of the jury, was a member of the grand jury which returned this indictment and other indictments against the plaintiff in error. These affidavits show that, when Lofton was examined on voir dire, a thorough examination was given him concerning any knowledge or opinion he may have had about the case; that he stated that he did not know anything about the case, except what he had heard and...