People v. Wolf

• Decision Date: 17 December 1934
• Docket Number: No. 22520.,22520.
• Citation: 193 N.E. 211,358 Ill. 334
• Parties: PEOPLE v. WOLF.
• Court: Illinois Supreme Court

358 Ill. 334

193 N.E. 211

PEOPLE

v.WOLF.

No. 22520.

Supreme Court of Illinois.

Oct. 24, 1934.

Rehearing Denied Dec. 17, 1934.

Error to Criminal Court, Cook County; Walter P. Steffen, Judge.

Charles J. Wolf was convicted of embezzlement, and he brings error.

Reversed and remanded.

Ode L. Rankin, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth, and John T. Gallagher, all of Chicago, of counsel), for the People.

HERRICK, Justice.

On April 27, 1933, an indictment was returned by the grand jury in the criminal court of Cook county charging Charles J. Wolf (hereinafter called the defendant) with the embezzlement of $38,345.99. The indictment consisted of six counts. Counts 1 and 2 charged the defendant, as president of the Citizens' State Bank of Melrose Park, with embezzling said sum on May 23, 1930, from the bank. Counts 3 to 6, inclusive, charged him, as treasurer of the Veterans' Park District, with the embezzlement on the same date of the same sum from the park district. On motion made by the defendant the people filed a bill of particulars, which amongst other things stated: ‘That Charles J. Wolf, on or about May 23, 1930, then and there being president, officer and agent in the employ of the Citizens State Bank of Melrose Park, a corporation, and then and there being treasurer of Veterans Park District, a municipal corporation, without right or authority by virtue of either of said offices fraudulently converted and embezzled to his own use $38,345.99 of the moneys on deposit in the Citizens State Bank of Melrose Park in the account of Veterans Park District on the dates and in the amounts following: September 30, 1929, $4000; September 20, 1929, $10,100; October 8, 1929, $4943.66; October 21, 1929, $5625; October 31, 1929, $4977.09; December 24, 1929, $2036; January 17, 1930, $5092.50; May 23, 1930, $1571.74.’

Before pleading to the indictment, and subsequent to the filing of the bill of particulars, the defendant made his motion to compel the people to elect as to which felony charged by the indictment they would prosecute. This motion was denied. The defendant renewed his motion at the close of the evidence for the people. The motion was again denied. The defendant put in his evidence and the people their evidence in rebuttal. At the close of all the evidence in the case the people entered a nolle prosequi as to counts 1 and 2. The jury found the defendant guilty of the embezzlement charged in counts 3 to 6, inclusive, and the value of the property embezzled to be $38,345.99. The motions made by the defendant for new trial and in arrest of judgment were overruled, judgment was entered on the verdict, and the defendant was sentenced to the penitentiary. To review that judgment a writ of error has been sued out of this court by the defendant.

All of the several sums claimed to have been embezzled by the defendant, excepting the item of January 17, 1930, in the amount of $5,092.50, were involved in the case of People v. Wolf, 352 Ill. 109, 185 N. E. 233. The facts surrounding those transactions as then shown by the record in that case are fully stated in that opinion. In that case, however, no evidence was offered by the defendant, while in the present case he put in evidence.

The defendant urges that the indictment by the first and second counts charged embezzlement by him, as a bank official, of the funds of a bank, and the remaining counts charged embezzlement by him, as treasurer of the park district, of the funds of such district; that two separate and distinct felonies being charged, the trial court erred in not compelling the people, at the close of the evidence for the people, to elect on which of the two felonies charged they would rely for a conviction. The indictment does charge two separate and distinct felonies-embezzlement from two corporations, one a private, the other a municipal corporation, toward each of which the defendant bore a different relationship. Different penalties are prescribed by the statute for the commission of the separate offenses. Section 76 of the Criminal Code (Smith-Hurd Ann. St. c. 38, § 209) relates to embezzlement by a bank official from his bank, with a punishment for the violation of such section fixed at from one to ten years' imprisonment in the...