People v. Rasmussen

• Decision Date: 21 December 1927
• Docket Number: No. 18418.,18418.
• Citation: People v. Rasmussen , 328 Ill. 332, 159 N.E. 360 (Ill. 1927)
• Parties: PEOPLE v. RASMUSSEN.
• Court: Illinois Supreme Court

328 Ill. 332

159 N.E. 360

PEOPLE

v.RASMUSSEN.

No. 18418.

Supreme Court of Illinois.

Dec. 21, 1927.

Error to Circuit Court, Winnebago County; Arthur E. Fisher, Judge.

Henry P. Rasmussen was convicted of refusing to pay over to his successor in office of clerk of probate court money collected and received as such clerk, and he brings error.

Affirmed.George T. Liddell, of Rockford (Hall & Dusher, of Rockford, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., William D. Knight, State's Atty., of Rockford, Roy D. Johnson, of Springfield, and A. B. Louison and Robert E. Nash, both of Rockford, for the People.

DUNN, J.

Henry P. Rasmussen was charged in an indictment returned by the grand jury in the circuit court of Winnebago county with having refused to pay over to his successor in the office of clerk of the probate court of that county a large amount of money which he had collected and received as such clerk as fees of his office and costs, and other funds required by law to be received and kept by him as such officer. His trial resulted in a verdict of guilty and a judgment of imprisonment in the penitentiary. He has sued out a writ of error to review the judgment.

[1][2][3] The first error complained of is the denial of a motion to quash the indictment, as a result of which it is charged that the plaintiff in error was tried for two distinct felonies. The indictment contained two counts; the second charging the defendant with embezzlement of the same founds which he was charged in the first with refusing to pay over to his successor in office. The rule is well settled that, although separate felonies may not be included in different counts of the same indictment, the same offense may be stated in different ways in as many different counts as the pleader may think necessary, provided that all the counts really relate to the same transaction. Kotter v. People, 150 Ill. 441, 37 N. E. 932;Bennett v. People, 96 Ill. 602;Lyons v. People, 68 Ill. 271. The two counts of the indictment were based on the same transaction. They involved the receipt and disposition of the same sums of money, and the counts were properly joined. The state's attorney, at the conclusion of the evidence, entered a nolle of the second count, which was an effectual election of the count upon which he was asking conviction, and the rights of the defendant were not prejudiced.

[4] The defendant filed a petition for a change of venue. The abstract shows in regard to this only the following:

‘Defendant's written application for change of venue on affidavit of the prejudice of the presiding judge, and on the further ground that the presiding judge was named in the state's bill of particulars as one of the persons whose money the defendant was charged with having withheld and embezzled. Order of court overruling application for change of venue.’

Neither the affidavit of the plaintiff in error on the motion for a change of venue, nor the affidavits of other persons required by the statute in support of the motion when based on the prejudice of the judge, appear in the abstract. It does not appear that the affidavits of two reputable persons, residents of the county and not of kin to or counsel for the applicant, stating that they believed the judge is so prejudiced against the applicant that he cannot have a fair and impartial trial, were filed as required by the statute. The statement that the presiding judge was named in the state's bill of particulars as one of the persons whose money the defendant was charged with having withheld and embezzled did not state a further ground for a change of venue. It did not show any interest of the judge in the event of the suit. The result of the trial on the indictment could not in any way affect the liability of the defendant to the judge.

[5][6] The plaintiff in error made a motion for a continuance on the ground that his counsel was not given time and opportunity to prepare for trial. The abstract does not set out the affidavit in support of the motion for a continuance or the bill of particulars. It appears from the abstract that the counsel for the plaintiff in error who made the motion to quash the indictment were D. D. Madden and M. W. Clark. They subsequently withdrew their appearance, and the appearance of William L. Pierce was entered as counsel for the defendant. The defendant pleaded not guilty, and subsequently his counsel Pierce withdrew by leave of the court, and his present counsel, George T. Liddell, was substituted. In the absence of a showing of the existence of the ground of the motion-that is, that the defendant's counsel was not given time and opportunity to prepare for trial-the court could have done nothing but deny the motion. The fact that the defendant changed his counsel two or three times before his trial is no indication that he was entitled to a continuance for lack of opportunity for his counsel to prepare for trial. It may or may not be true that counsel who was finally retained had not a sufficient opportunity to prepare for trial. That was a question for proof, of which the burden rested upon the plaintiff in error. There had been time enough for preparation between the return of the indictment and the time of trial. It was the defendant's duty to be ready for trial, and, if he was not ready because of his own neglect or misconduct, if he failed to employ counsel and co-operate with them in the preparation of his defense, that constitutes no reason for...