People v. Powell

• Court: Illinois Supreme Court
• Writing for the Court: HERRICK
• Citation: People v. Powell, 353 Ill. 582, 187 N.E. 419 (Ill. 1933)
• Decision Date: 21 October 1933
• Docket Number: No. 21969.,21969.
• Parties: PEOPLE v. POWELL.

353 Ill. 582

187 N.E. 419

PEOPLE

v.POWELL.

No. 21969.

Supreme Court of Illinois.

Oct. 21, 1933.

Error to Circuit Court, Livingston County; Stevens R. Baker, Judge.

Herbert Powell was convicted of failure to pay over $20,080.28, placed in his keeping as trustee under a decree in chancery, and he brings error.

Reversed.Adsit, Thompson & Herr, of Pontiac, for plaintiff in error.

Otto Kerner, Atty. Gen., Robert M. Niven, State's Atty., of Pontiac, and J. J. Neiger, of Springfield, for the People.

HERRICK, Justice.

The plaintiff in error (hereinafter called the defendant) was convicted in the circuit court of Livingston county for failure to pay over the sum of $20,080.28 placed in his keeping as trustee under a decree of the circuit court in the cause entitled, ‘Ida May Goembel et al. vs. Aldine Younger et al. chancery No. 5175,’ to J. H. McFadden, trustee in the same cause by appointment of the circuit court. The jury returned a verdict finding the defendant guilty. Motion for new trial was interposed, which was overruled. A motion in arrest of judgment was then made by the defendant, which motion in arrest was overruled. Judgment was entered on the verdict, and the defendant sentenced to the penitentiary.

The prosecution is based upon section 81 1/2 of the Criminal Code (Smith-Hurd Rev. St. 1933, c. 38, § 216), relating to embezzlement. That section is as follows: ‘Whoever, being the administrator of the estate of a decedent, or the executor of a last will, or guardian of any minor, conservator of any idiot, distracted person, drunkard, spendthrift or insane person, or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands, by virtue of his office, duty or trust, shall be deemed guilty of larceny.’

The original indictment consisted of five counts. A nolle prosequi was entered as to the fifth count of the indictment by the state's attorney during the course of the trial and after the jury had been sworn to try the issues in the case.

The evidence in the case showed that the plaintiff in error was a banker operating a bank at Fairbury, Ill.; that William Younger, a resident of Livingston county, died in 1916, leaving a last will and testament, which was duly admitted to probate; that he left a widow, since deceased, a daughter, named Ida May Goembel, and a grandchild, Aldine Younger, who was the only child of a deceased son of Younger; that Mrs. Goembel had six children, who were minors at the time of her father's death; that by his will Younger devised a life estate to his widow in certain property, directed that the balance of his estate be appraised and the total be divided by the number of his grandchildren then living; that the share of Aldine Younger be set aside in trust for her during her lifetime, with the income to be paid to her annually and at her death to go to her issue, if any survive her, and, if no issue survived her, then such share be placed in trust to go to the next of kin of the testator. He appointed John W. McDowell as trustee for Aldine Younger. A bill for relief was filed to the October term, 1919, of the circuit court of Livingston county by Mrs. Goembel. It appearing that McDowell, trustee named in the will, had died, the circuit court at the May term, 1921, thereof, by a decree duly entered of record in said chancery proceeding, appointed the defendant as trustee under the will for Aldine Younger.

The testimony established that there came to the hands of the trustee assets of the value of $20,285.71; that on the 2d day of October, 1928, he made his report to the circuit court of Livingston county showing on hand first mortgage notes in the principal sum of $20,000, and he on that date exhibited to the court the notes in his hands as disclosed by his report, which report was examined by the court and ordered approved. On June 23, 1930, the defendant was ordered to file a report as trustee within ten days, but the report was not filed until the 20th day of November, 1930. This report showed that he had collected $1,100 interest in 1929 and 1930 which had been paid to the guardian of Aldine Younger, and that his balance remaining was $20,080.28. He also filed in said court on August 30, 1930, his affidavit showing that all of his books of account, files, and vouchers relating to the estate were in the custody of the state auditor, impounded with other papers of the Fairbury bank, then in charge of the auditor, and that all of such papers had been out of his control and were in the possession of the auditor since June 23, 1930, and that it was impossible for the defendant to make a complete report by reason of such situation. He asked for further time in which to make a report until he could get access to his files. On the 13th of May, 1932, the circuit court ordered the defendant to file a new bond of $40,000. This order was entered on the petition of Aldine Younger. The defendant was also ordered to file a report by May 23. The report was filed, but the new bond was not. This last report showed the receipt of $1,100 interest which had been paid to Aldine Younger and a balance on hand of $20,080.28. An order was entered on the defendant on June 9, 1932, to show cause why he had not complied with the order of the court of May 13, 1932. No hearing was had on the last proceeding. On the 8th of August, 1932, without any notice to the defendant, the circuit court entered an order removing him as trustee and appointing J. H. McFadden as trustee, fixing the bond of McFadden at $1,000. On August 19, 1932, McFadden filed his bond, which was approved. The evidence further showed that on September 29, 1932, Edward Kammerman, a deputy sheriff of Livingston county, read and delivered to the defendant the following writing:

‘To Herbert Powell-You are hereby notified that I have been appointed trustee by the circuit court of Livingston county, Illinois, in the case of Ida May Goembel et al. vs. Aldine Younger et al. No. 5175, a certified copy of my order of appointment being hereto attached and made a part hereof. You are further hereby notified that in pursuance of said order and the statute in such case made and provided I hereby request the immediate delivery to me, as such trustee, of any money, choses in action or other property which may have come into your hands by virtue of your office as former trustee in said cause, and especially demand of you the sum of $20,080.28, being the amount shown to be in your hands in your last report as such trustee.

‘J. H. McFadden, Trustee.’

The order of the court entered on August 19, 1932, amongst other things, provided as follows: ‘It is further ordered, adjudged and decreed by the court that Herbert Powell be and he is hereby directed to deliver to the said J. H. McFadden, as such trustee, immediately upon demand, all of the moneys, securities, choses in action or other property which may have come into his hands by virtue of his office as trustee.’

The record shows no demand was ever made upon the defendant to turn over the property which had come to his hands as such trustee during the time he was acting as such, other than through this written notice, although he and McFadden had met in November of 1932 and talked about various matters. The indictment in the case was returned on October 6, 1932, just a week after the serving of the written notice upon the defendant. No motion to quash the indictment was made in the trial court.

The defendant urges several grounds for the reversal of the judgment of the trial court. One of the grounds insisted upon is that the indictment does not charge an offense within the purview of section 81 1/2 of the Criminal Code, supra; also that the indictment is in other respects bad.

On behalf of the people it is urged that, because the defendant did not make a motion to quash, he waived any defense that he might have as against the validity of the indictment. It is true that as to matters of form, where the defendant pleads to an indictment without having made a motion to quash the indictment, he waives his right to challenge the sufficiency of the indictment as to matters of form as well as all other matters which do not affect the real merits of the offense sought to be charged by the indictment. However, where the indictment does not charge a crime in the form prescribed by the common law or the statute, a plea of not guilty to the indictment without a motion to quash having been interposed does not waive the right to challenge the sufficiency of the indictment by motion in arrest of judgment. People v. Huff, 339 Ill. 328, 171 N. E. 261;People v. Martin, 314 Ill. 110, 145 N. E. 395, 397;People v. Wallace, 316 Ill. 120, 146 N. E. 486. Even though a judgment may have been entered on a plea of guilty to the indictment, the defendant may even thereafter question the sufficiency of the indictment by a motion in arrest. Klawanski v. People, 218 Ill. 481, 75 N. E. 1028. There is good reason for this rule. When a defendant enters a plea of guilty to the indictment, he admits only those facts that are charged in apt terms by the indictment. If the indictment does not charge an offense either at common law or under the statute, then the defendant has not pleaded guilty to the violation of any criminal law, and he is therefore not estopped at a later date from attacking the indictment as to matters of substance. The highest degree of certainty in pleading is required in indictments. The court, in construing an indictment, is not at liberty to depart from the words of the indictment itself and speculate as to the possible intention of the writer of the indictment nor to supply matters of substance which have been omitted. People v....