Shirk v. People

• Decision Date: 12 May 1887
• Citation: 121 Ill. 61,11 N.E. 888
• Parties: SHIRK v. PEOPLE.
• Court: Illinois Supreme Court

121 Ill. 61

11 N.E. 888

SHIRK

v.PEOPLE.

Supreme Court of Illinois.

May 12, 1887.

Error to circuit court, Stephenson county.

J. A. Crain, for Shirk, plaintiff in error.

Oscar E. Heard, for the People.

MULKEY, J.

At the December term, 1886, of the circuit court of stephenson county, Daniel F. Shirk was tried and convicted of the crime of uttering and publishing an alleged fictitious instrument in writing for the payment of money, his punishment being fixed at two years' confinement in the penitentiary. By the present writ of error we are asked to review that conviction. The indictment is founded on the 107th section of the Criminal Code, which, so far as it is supposed to have any application to this case, is as follows: ‘Whoever shall make, pass, utter, or publish, with an intention to defraud any other person, any fictitious bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property, of some * * * individual, when in fact there shall be no such * * * individual in existence, the said person knowing the said bill, note, or check, or other instrument of writing for the payment of money or property, to be fictitious, shall be imprisoned in the penitentiary not less than one nor more than twenty years.’

The count in the indictment upon which the defendant was convicted charges that, on the twentieth of July, 1885, in Stephenson county, in state of Illinois, Daniel F. Shirk feloniously did utter, publish, and pass, as true and genuine, a certain false and fictitious instrument of writing for the payment of money, to one Harvey F. Perkins, he being then and there the H. F. Perkins in the instrument mentioned, which instrument then and there purported to have been signed by one Morton Walldecker, when in fact there was no such individual in existence; said Shirk then and there knowing said instrument to be false and fictitious, with intent thereby, then, and there to defraud said Harvey F. Perkins, which instrument is of the following tenor:

‘HARVEY F. PERKINS' MARBLE AND GRANITE WORKS, LENA, ILLINOIS.

ADLINE, July 17, '85.

‘I have this date bought of H. F. Perkins _____ marble grave-stone of the following size: ___ feet ___ inches long, by ___ inches wide, ___ inches thick, to be in style and finish of No. ___ of his drawings or photographs. One _____ one marble Monument of the following size: Limestone base 1-0x2-2x2-2 marble base, 0-10x1-7x1-7, die, 2-2x1-2x1-2, 0-5x1-1 1/2x1-1 1/2; 0-1x1-6x1-6, Plinth, Column, Cap, Urn, 1-5xv-9xv-9; Final, Statuary, to be in style and finish of No. 615 Vermont Marble Co., _____ of his drawings or photographs, with the exception of _____.

‘To be inscribed as follows: _____.

‘To be delivered and set in Foreston freight office, Ogle Co., Ills., on or about the fifth day of November, 1885, or as soon as convenient thereafter; for which I agree to pay the sum of $165 on delivery of said monument.

‘Dated at Adline this seventeenth day of July, 188_.

‘P. O. Address: Adline, county of Ogle, state of Illinois.

‘MORTON WALLDECKER.’

The principle question presented for determination is whether, assuming the instrument set out in the indictment to be fictitious, it is such a one as falls within the category of instruments contemplated by the section of the statute above cited. If it does not, of course the conviction cannot be sustained, and it will therefore be unnecessary to consider other questions discussed in the briefs. It is clear that the instrument is neither a bill, note, nor a check, according to either the popular or technical signification of those terms, and this is practically conceded by counsel for the state. But the contention is that it is embraced within the general designation, ‘other instrument in writing.’

This phrase seems to have been first introduced into our ...