Watts v. People

• Decision Date: 26 October 1903
• Citation: 68 N.E. 563,204 Ill. 233
• Parties: WATTS v. PEOPLE.
• Court: Illinois Supreme Court

204 Ill. 233

68 N.E. 563

WATTS

v.PEOPLE.

Supreme Court of Illinois.

Oct. 26, 1903.

Error to Circuit Court, Sangamon County; J. A. Creighton, Judge.

Thomas Watts was convicted of larceny, and brings error. Reversed.John G. Friedmeyer and G. A. Sanders, for plaintiff in error.

H. J. Hamlin, Atty. Gen., and W. E. Shutt, Jr., State Atty., for the People.

This is a joint indictment, found by the grand jury at the January term, 1903, of the circuit court of Sangamon county against the plaintiff in error, Thomas Watts, and one Thomas Watts, Jr., and one Oliver Tomlin, for the larceny of eight hogs, of the value of $100, being the property of Samuel H. Jones. Thomas Watts, Jr., pleaded guilty to the indictment, and testified upon the trial of the cause for the prosecution. The plaintiff in error, Thomas Watts, or Thomas Watts, Sr., was tried jointly with Oliver Tomlin for the larceny of said hogs, and convicted, and was sentenced to imprisonment in the penitentiary at Chester. By the same verdict Oliver Tomlin was found guilty, and judgment of conviction was entered upon the verdict as rendered against plaintiff in error and Tomlin. Before the judgment was rendered motions for new trial and in arrest of judgment were made and overruled, to which action of the court exception was duly taken. The present writ of error is sued out by Thomas Watts, or Thomas Watts, Sr., the plaintiff in error, for the purpose of reviewing said judgment.

The indictment contains only one count, and that is a count for larceny, the words of the indictment being as follows: ‘That on the 27th day of January, A. D. 1903, at the county of Sangamon, in the aforesaid state of Illinois, Oliver Tomlin, Thomas Watts, and Thomas Watts, Jr., eight hogs, the personal goods, chattels, and property of Samuel H. Jones, of the value of $100.00, did then and there unlawfully and feloniously steal, take, and carry away, contrary to the form of the statute in such case made and provided,’ etc.

The material facts of the case are substantially as follows: Thomas Watts, Jr., was the son of the plaintiff in error, and was married and lived with his family until about two weeks before the offense was committed, during which time he lived at the house of his father, the plaintiff in error. On the night of January 20, 1903, Thomas Watts, Jr., and Oliver Tomlin, who was about 19 years old, and was a coal miner, met at a saloon in Springfield, and went from there to the farm of Samuel H. Jones, about four and a half miles southwest of Springfield, and drove away eight hogs, valued at $100. They arrived in the city with said hogs about 5 o'clock, or between 4 and 5 o'clock, the next morning. When they arrived at the home of the plaintiff in error, where Thomas Watts, Jr., was then staying, they drove the hogs through the barn into a chicken lot on the premises,and left them there until noon of that day. Thomas Watts, Jr., and Oliver Tomlin went down town, leaving the hogs there on the premises of plaintiff in error, in order to secure a wagon to haul the hogs to a slaughterhouse and dispose of them. Thomas Watts, Jr., secured a wagon during the morning of January 21st, and about noon the hogs were taken away from the premises of plaintiff in error, and sold to one Charles Metzger, a butcher in Springfield, for the sum of $100.50. The sale was made by Thomas Watts, Jr., and he received a check from Metzger in payment, payable to the order of his father, Thomas Watts, Sr. The evidence tends to show that Metzger inquired of Thomas Watts, Jr., whether the hogs belonged to him or his father, and, upon receiving a reply that it did not make any difference whether they belonged to the one or the other, Metzger concluded to make the check payable to the order of Thomas Watts, Sr.

Plaintiff in error was employed as a janitor and attended to making fires and looking after furnaces in a number of private dwellings and business houses in Springfield. The testimony shows that he was in the habit of getting up in the morning between 4 and 5 o'clock, and going to his barn to hitch his horse to his buggy or surrey, and driving down town to attend to his work. The plaintiff in error testified in his own behalf upon the trial of the case, and swore that he had a barn upon his premises, and therein had two stalls, in one of which he kept a cow and in the other his horse; that in the barn was hay hanging from the cracks in the roof of the barn, and scattered about on the floor; that on the morning of January 21st he went down to the barn, and went in, and lighted the lantern, which hung near the back door of the barn, looking out upon the alley, where his surrey stood; that he harnessed his horse and hitched him to the surrey, and drove down town. Plaintiff in error swears that when he went to the barn he saw no hogs, and did not know that any hogs were there, and that he did not see either Thomas Watts, Jr., or Tomlin. He says that he came back from his work about 9:30, and found the hogs in the barn, and inquired of some members of his family whose hogs they were, but they were unable to tell him; that about noon his son came back, and he asked him to whom the hogs belonged, and his son told him that they belonged to Tomlin; that about noon a wagon which his son had gone down town and hired was driven up to the stable for the purpose of carrying the hogs down town. Plaintiff in error admits that his son and the man who drove the wagon did not seem to understand how to get the hogs into the wagon, and he borrowed some boards of a neighbor to help them load the hogs into the wagon, and they were driven off. One of the daughters of plaintiff in error testifies that after Thomas Watts, Jr., her brother, had driven off with the hogs, Tomlin came up with a wagon, and asked where Thomas Watts, Jr., was, and she told him that he had gone to town with the hogs.

In the afternoon of that day, about 3:30, plaintiff in error was down town on the east side of the square in Springfield opposite the courthouse. He says that he went down to see the sheriff about making a loan of money from him, but was unable to find the sheriff, who was out of town. While he was talking with a Mr. Wright on the east side of the square opposite the courthouse, Thomas Watts, Jr., came along, and asked him to go to the bank with him. He says he went with his son to the bank. At the bank his son indorsed the check in the name of Thomas Watts, and the cashier or teller paid the amount of the check, $100.50, to Thomas Watts, Jr. The plaintiff in error told the cashier that Thomas Watts was his son, and the cashier or teller, who knew Thomas Watts, Sr., paid the money. In other words, the plaintiff in error seems to have identified his son. Plaintiff in error says that he did not see the check, nor know to whose order it was payable, and did not know the amount of it, and that he never received any of the proceeds of it. In the evening of that day, about 6 o'clock, Thomas Watts, Jr., and Tomlin, and another young man, and two or three of the daughters of plaintiff in error, and plaintiff in error himself, were in the house of plaintiff in error, and there on that evening, in the presence of plaintiff in error, Thomas Watts, Jr., paid about $30 or $32 of the money to Tomlin. Tomlin and Thomas Watts, Jr., then left. Thomas Watts, Jr., was not at the house of his father on the night of January 20th nor on the night of January 21st. As we understand the evidence, the three men, Thomas Watts, Sr., Thomas Watts, Jr., and Tomlin, were arrested on January 22d. Mr. Jones testified that he identified the hogs as his hogs by a brand or mark which he had placed upon them.

MAGRUDER, J. (after stating the facts).

There can be no doubt from the evidence in this case that Thomas Watts, Jr., and Oliver Tomlin were guilty of stealing the hogs in question. The former pleaded guilty, and was sentenced to the penitentiary; and the latter, upon the trial, was found guilty, and was also sentenced, and did not join in the present writ of error. So far, however, as the plaintiff in error is concerned, we are unable to find any evidence in the record which tends to show that he was guilty of the larceny of the hogs.

Section 167 of division 1 of the Criminal Code of Illinois defines ‘larceny’ as follows: ‘Larceny is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another. Larceny shall embrace every theft, which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained,’ etc. 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 1316, c. 38, par. 305. Section 2 of division 2 of the Criminal Code defines an ‘accessory’ as follows: ‘An accessory is he who stands by, and aids, abets or assists, or who, not being present, aiding, abetting or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime. He who thus aids, abets, assists, advises or encourages, shall be considered as principal, and punished accordingly.’ 1 Starr & C. Ann. St. (2d Ed.) pp. 1354, 1355, c. 38, par. 453. There is no evidence in the record which tends to show that plaintiff in error knew anything about the scheme or plan to steal the hogs before the theft was committed. There is no evidence to show that he aided, abetted, or assisted Thomas Watts, Jr., and Oliver Tomlin in going after the hogs, or driving them away from the Jones farm, or putting them in the barn, or the lot adjoining the barn. It is an essential element of the crime of larceny that the property of the owner has been wrongfully taken and carried away, or that the person accused of the larceny has knowingly abetted, aided, encouraged, and advised such wrongful taking before the actual theft of the property, or at the time thereof. 1 Bishop on Crim. Law (5th Ed.) §§ 666, 668; Wharton on Crim. Law (10th Ed.) §§ 237, 238. A person...