People v. Wright

• Decision Date: 15 February 1921
• Docket Number: No. 13464.,13464.
• Citation: People v. Wright, 296 Ill. 455, 129 N.E. 819 (Ill. 1921)
• Parties: PEOPLE v. WRIGHT et al.
• Court: Illinois Supreme Court

296 Ill. 455

129 N.E. 819

PEOPLE

v.WRIGHT et al.

No. 13464.

Supreme Court of Illinois.

Feb. 15, 1921.

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

Josh L. Wright and others were convicted of cutting a leaf from a public deed record, and they bring error.

Reversed and remanded.

George W. Pillow, of Marion, and Creighton & Thomas, of Fairfield, for plaintiffs in error.

Edward J. Brundage, Atty. Gen., Marsh Wiseheart, State's Atty., of Shawneetown, and Floyd E. Britton, of Springfield (Thomas H. Daily, of Shawneetown, of counsel), for the People.

CARTWRIGHT, C. J.

Josh Wright, Sam Bentley, and Herman Bentley, plaintiffs in error, were convicted in the circuit court of Gallatin county under an indictment charging that they ‘did feloniously, fraudulently and maliciously cut a leaf out of deed record No. 36 in the office of the circuit clerk and ex officio recorder of Gallatin county, Ill., which leaf so cut out contained pages numbers 519 and 520, and upon said page No. 519 was a record of a certain deed wherein Thomas M. Wright conveys certain real estate therein described to Laura Wright, the property of the said Laura Wright, with the intent then and there feloniously and fraudulently thereby to defraud, prejudice and injure the said Laura Wright, contrary to the form of the statute in such case made and provided.’ They were sentenced to confinement in the penitentiary, but an order was entered suspending the sentence as to Sam Bentley and Herman Bentley and releasing them on probation. The plaintiffs in error sued out a writ of error from this court for a review of the record.

The conviction was based on evidence introduced by the people that Josh Wright cut from record book 36 in the recorder's office of Gallatin county a leaf containing the record of a conveyance of property from Thomas Wright to Laura Wright. The situation of which there was evidence and as stated by counsel for both parties was as follows: On May 3, 1907, Thomas Wright owned 80 acres of land in Gallatin county, upon which he lived with his wife, Laura, and their children, and on that day he executed a deed of the land to his wife and acknowledged the same before a justice of the peace, and the deed was recorded in deed record 36 in the office of the recorder, on page 519. Wright died soon after, and about six months after his death his widow was married to Willis Banks. Some time after her second marriage she sold the land to Alex Burroughs, who afterwards sold it to Sam Bentley, one of the plaintiffs in error. About two years after Wright's death another deed was filed for record exactly like the first one, except that Laura Wright's name appeared as a grantor and in the acknowledgment, and this deed was recorded in deed record 39, at page 264. After the conveyance of the land to Sam Bentley the heirs of Thomas Wright brought suit against Bentley to recover the land, on the ground that it was a homestead worth less than $1,000 and his wife did not join in the deed, and the second deed was not signed by Laura Wright but her name was a forgery. Herman Bentley is a son of Sam Bentley and married a stepdaughter of Josh Wright. While the suit for the land was pending, on May 2, 1917, the three defendants were in the office of the recorder, and it was charged that Josh Wright then cut out of the record a leaf on which were pages 519 and 520, containing the record of the first deed from Thomas Wright to Laura Wright, in which she did not join.

Harry Gregg, son and deputy of J. G. Gergg, circuit clerk and recorder, testified the three defendants came into the office and wanted to see the deed record from Thomas Wright to Laura Wright; that the deed record had been called for frequently, and he went into the vault and got deed record 36 and opened the record; that they asked for the other record, and he put deed record 36 on the north end of the desk and went into the vault and got the other record; that he was showing that record to Herman Bentley and Sam Bentley and was reading the deed to them; that the witness was at the west desk with Sam and Herman Bentley and they were between Josh Wright and the witness; that the witness got out of breath and stopped reading and then heard paper rattling and went over to where Wright was standing at deed record 36; that Wright was turning the paper back, pushing it back into the record and putting the sheets back in place; that pages 518 and 519 were exposedwhen they had the record down on the north desk, and Wright leaned over it, pretending to be reading; that there were 20 pages cut, numbered from 501 to 520, inclusive; that Wright left the office and the father of the witness came in and was shown the condition of the book, and they then called Herman Bentley and Sam Bentley and showed them the condition; that Herman Bentley went to town and got Wright and brought him back to the office and he was accused of cutting the pages out of the deed record and said that he did not do it, and Sam Bentley said: ‘I am sorry it happened; people might think I did it.’ The defendants proved that Wright could not read or write, and he denied that he cut the leaves out of the record or knew anything about it, and said that he did nothing at the office except to inquire whether a mortgage which he had paid had been released. Sam Bentley and Herman Bentley testified that they did not cut any pages from the record and did not know who did and had nothing whatever to do with the mutilation of the reocrd. The attorney for Thomas Wright's heirs testified that according to his recollection Josh Wright told him he would give him a $100 fee to rely upon a certain deed, but he did not remember which deed it was, and Josh Wright said respecting the alleged offer that he told the attorney that he could probably get $100 if he tried the suit; that the deed was a bogus deed and the first one was a good one, or supposed to be a good one.

It is contended by counsel for plaintiffs in error that the indictment was for malicious mischief under section 194 of division I of the Criminal Code (Hurd's Rev. St. 1919, c. 38) and that the indictment was bad because no prosecutor was indorsed thereon, as required by statute, and the evidence failed to sustain the conviction. The indictment was not framed an section 194, which makes it an offense against the law to fraudulently or maliciously tear, burn, efface, cut, or in any other way destroy or secrete any deed or other writing therein specified,or any daybook or book of account, with intent to defraud, prejudice, or injure any person or body corporate, and the indictment contained no charge of that kind. Section 176 relates to public records and the indictment was framed on that section, which is as follows:

‘Sec. 176. If any judge, justice of the peace, sheriff, coroner, clerk, recorder, or other public officer, or any person whatsoever, shall steal, embezzle, alter, corrupt, withdraw, falsify or avoid any record, bond or contract, or shall grant, conveyance, bond or contract, or shall knowingly and willfully take off discharge or conceal any issue, forefeited recognizance, or other forfeiture, or shall forge, deface or falsify any document or instrument recorded, or any registry, acknowledgment or certificate, or shall alter, deface or falsify any minute, document, book, or any proceeding whatever, of or belonging to any public office within this state, the person so offending shall be imprisoned in the penitentiary not less than one nor more than seven years.’

The indictment charged that the defendants cut a leaf out of deed record 36 in the office of the circuit clerk and ex officio recorder of Gallatin county, which was an averment that the deed record was a book belonging to a public office within this state and that it was mutilated by the defendants. It alleged that the leaves so cut out contained pages 519 and 520, and upon page 519 was a record of a deed of Thomas Wright to Laura Wright, and these were sufficient charges under section 176, although other things were added not essential to constitute the crime. It was not necessary to allege the ownership of the record mutilated (Loehr v. People, 132 Ill. 504, 24 N. E. 68), and the position that the record of the deed was alleged to be the property of Laura Wright is incorrect. The meaning of the averment is that the real estate described in the deed was the property of Laura Wright, but all that was alleged in the indictment beyond the terms of the statute was surplusage and did not affect the indictment. The indictment was indorsed‘malicious mischief,’ but it was not for malicious mischief and the law did not require the name of a prosecutor to be indorsed upon it. If a state's attorney or the foreman of a grand jury by mistake indorses an indictment as being for one offense when a different offense is charged, the indictment will be sustained regardless of the indorsement. Collins v. People, 39 Ill. 233.

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