Ruth v. People of State
| Decision Date | 14 May 1881 |
| Citation | 1881 WL 10535,99 Ill. 185 |
| Parties | HENRY F. RUTHv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Mr. F. S. MURPHY, for the plaintiff in error:
The indictment contains three counts, each one charging, by proper averments, the plaintiff in error with the crimes of burglary and larceny.
It would appear that this sort of pleading is at least tolerated, and the defendant was properly charged with both burglary and larceny in each count. Lyons et al. v. People, 68 Ill. 271.
It was error to refuse the instruction that the jury might find the defendant guilty of larceny alone, if the evidence warranted it. The evidence, plain and satisfactory, of the fact of the goods alleged to have been recently stolen, was much stronger evidence of a larceny of these goods than that defendant had committed the crime of burglary. If this instruction had been given, there is every reason to believe the jury would have found the defendant guilty only of petit larceny. The injustice done the accused is at once apparent on account of the different degrees of punishment for the two offences.
The motion in arrest of judgment should have been allowed. The first count charges the breaking and entering the barn of George P. Jameson, with intent to steal the goods and chattels of said Jameson; the second with breaking, etc., the barn, shed and buildings of Mary J. Callison, to commit a felony, etc.; and the third is but a variation in statement of the same felony set out in the first count.
Here are two separate and distinct felonies set out in the first and second counts. The building, its owner, and the goods intended to be stolen, are entirely and essentially different in the first and second counts, so we say there was a joinder of two separate and distinct felonies, which is not allowed. Arch. Cr. Prac. & Pl. 93; 1 Bish. Cr. Prac. sec. 208; 1 Whart. Cr. L. sec. 421.
Mr. JAMES MCCARTNEY, Attorney General, for the People:
The instruction was properly refused as there was no evidence tending to show there could be any separation of the charges of burglary and larceny. All the proof tends to show that the person who committed the larceny also committed the burglary, and vice versa.
A verdict for petit larceny under an indictment for burglary has been held void. People v. Ford, 30 La. Ann. pt. 1, 311. This court has held, that where a higher and more atrocious crime embraces all the ingredients of a lesser offence, and where the evidence justifies it, the jury may convict of the lesser offence under an indictment for the greater. Earll v. People, 73 Ill. 329; Prindeville v. People, 42 Id. 217; Reynolds v. People, 83 Id. 479.
But a charge of burglary does not necessarily include a larceny. The breaking and entering a house for any felonious purpose constitutes a burglary. The instruction asked was clearly not the law.
Mr. J. J. TUNNICLIFFE, State's Attorney of Knox county, also for the People:
It is proper for the pleader to state the offence in as many different ways as he sees fit, to prevent a variance between the proof and the indictment. Beasley v. People, 89 Ill. 578; Lyons v. People, 68 Id. 271.
The proof shows, that while Mrs. Mary Callison was the owner of the barn or stable, George P. Jameson had rented the same, and was...
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Herman v. People
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