People v. Schuster

• Court: Illinois Supreme Court
• Writing for the Court: SAMUELL
• Citation: People v. Schuster, 339 Ill. 73, 170 N.E. 726 (Ill. 1930)
• Decision Date: 04 April 1930
• Docket Number: No. 19931.,19931.
• Parties: PEOPLE v. SCHUSTER.

339 Ill. 73

170 N.E. 726

PEOPLE

v.SCHUSTER.

No. 19931.

Supreme Court of Illinois.

Feb. 21, 1930.

As Modified on Denial of Rehearing April 4, 1930.

Error to Criminal Court, Cook County; John J. Sullivan, Judge.

Jacob Schuster was convicted under an indictment charging arson, burning with intent to injure and defraud, and conspiracy to burn and set fire with intent to injure and defraud, after the State's attorney had entered a nolle prosequi as to the arson count, and he brings error.

Reversed, and remanded.

Irwin R. Hazen and Charles A. Wagner, both of Chicago (Elwyn E. Long, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and Merrill F. Wehmhoff, of Springfield (Henry T. Chace, Jr. and Edward E. Wilson, both of Chicago, of counsel), for the People.

SAMUELL, J.

On March 20, 1929, the grand jury of the criminal court of Cook county returned an indictment in four counts against plaintiff in error, Jacob Schuster, and Morris Weiner. The first count of the indictment charged arson, the second charged burning with intent to injure and defraud, and the third and fourth charged conspiracy to burn and set fire with intent to injure and defraud. The case came on for trial in the criminal court of Cook county on May 24, 1929, and during the course of the trial the state's attorney, with the consent of the trial court, entered a nolle prosequi as to the arson count. The jury returned a verdict finding plaintiff in error ‘guilty in manner and form as charged in the indictment,’ and upon this verdict the court entered judgment against plaintiff in error for the crime of arson, and sentenced him to the penitentiary. He has sued out this writ of error to review that judgment.

The fire upon which the indictment is based occurred on July 15, 1928, at the dry goods store conducted by plaintiff in error at 3015 South State street, in the city of Chicago. At the time of the fire, plaintiff in error was either in Benton Harbor, Mich., or enroute to that city. It is clear from the evidence that the fire was of incendiary origin, and appears to have been started by the defendant Weiner and one Weiss. Weiss was killed or burned to death in the fire.

It appears from the evidence that plaintiff in error had on hand, after the fire, merchandise of the value of between $6,000 and $8,000. In addition to this, he had fixtures and household furnishings of a replacement value of about $2,500. Plaintiff in error was indebted to the bank on a note in the sum of $2,500, and upon open accounts to various wholesale houses in the total sum of $2,400. He testified that prior to the fire his stock of goods inventoried between $14,000 and $15,000. There is nothing in the evidence to show the quantity of goods destroyed by the fire. He carried a total of $10,000 insurance upon his stock of merchandise, fixtures, and household furnishings. His creditors were not pressing him for payment of his indebtedness, and he appears to have been making some profit in the business.

It is first contended on behalf of plaintiff in error that, since the arson count had been dismissed, it was error for the court to enter judgment against him for the crime of arson. This was error on the part of the trial court, and were that the only error intervening, the case could be remanded to the criminal court for correction of the sentence. People v. Wood, 318 Ill. 388, 149 N. E. 273;People v. Boer, 262 Ill. 152, 104 N. E. 162. It is insisted, however, that it would be useless to remand the case to the criminal court for correction of the sentence, for the reason that the court would have no means of knowing for what crime plaintiff in error was to be sentenced. After the arson count had been dismissed by the state's attorney there remained three counts, one which charged burning with intent to defraud, and the other two which charged conspiracy to burn with intent to defraud, and it is argued that since the jury returned a general verdict of ‘guilty in manner and form as charged in the indictment,’ and since the offenses charged in the remaining counts do not carry the same grade of punishment, the judgment should be...