West v. People

• Decision Date: 30 March 1891
• Citation: 27 N.E. 34,137 Ill. 189
• Parties: WEST v. PEOPLE.
• Court: Illinois Supreme Court

137 Ill. 189

27 N.E. 34

WEST

v.PEOPLE.¹

Supreme Court of Illinois.

March 30, 1891.

Error to criminal court, Cook county; JULIUS S. GRINNELL, Judge.

For concurring opinion, see 34 N.E. 254.

Sidney Smith and Flower, Smith & Musgrave, for plaintiff in error.

George Hunt, Atty. Gen., and Joel M. Longenecker, State's Atty., ( Francis W. Walker and D. W. Dunn, of counsel,) for the People.

PER CURIAM.

James J. West and Charles E. Graham were indicted in the criminal court of Cook county for the violation of section 119 of the Criminal Code, (Rev. St. c. 38,) which provides: ‘Every president, cashier, treasurer, secretary, or other officer, and every agent, attorney, servant, or employe of any bank, railroad, manufacturing, or other corporation, and every other person who shall knowingly and designedly, and with intent to defraud any person, bank, railroad, manufacturing, or other corporation, issue, sell, transfer, assign, or pledge, or cause or procure to be issued, sold, transferred, as signed, or pledged, any false, fraudulent or simulated certificates or other evidence of ownership of any share or shares of the capital stock of any bank, railroad, manufacturing, or other corporation, shall be punished by fine not exceeding $2,000, and by imprisonment in the penitentiary not more than ten years, as the jury shall determine.’ The indictment contained a number of counts, all of which however, were nolle prossed by the state's attorney, except the 1st, 2d, 3d, 4th, 5th, 7th, and 8th. In the first count it was alleged that James J. West was president, and Charles E. Graham was secretary, of the Chicago Times Company, a corporation under the laws of Illinois, and they did on January 8, 1889, in Cook county, ‘knowingly and designedlyissue to him, the said James J. West, four certain false certificates of ownership, each for the sum of 100 shares of the capital stock of the Chicago Times Company, incorporated,’ etc., ‘with intent to defraud the said Chicago Times Company,’ etc. The second count was the same as the first, save that the word ‘fraudulent’ was used instead of ‘false;’ and the third count was also the same as the first, except that ‘simulated’ was used instead of ‘false.’ The fourth count charged that the defendants ‘knowingly and designedly,’ as ‘president and secretary,’ etc., ‘did issue to the said James J. West a certain false certificate of ownership of 349 shares of the capital stock,’ etc., ‘of said company,’ ‘with intent to defraud’ the said Chicago Times Company, incorporated, etc.; and the fifth count was the same as the fourth, except that the word ‘fraudulent’ was used instead of ‘false.’ The seventh and eighth counts will be noticed further on. A motion to quash the indictment and each count was interposed and overruled. At the conclusion of the evidence for the people, the defendants entered their motion to compel an election by the people as to which count they would proceed under, and of which alleged offense they would ask conviction. This motion was overruled. The jury found the defendant Graham not guilty, and the defendant West ‘guilty in the manner and form as charged in the indictment,’ fixing his punishment at a fine of $1,000 and imprisonment in the penitentiary for five years. Motions of defendant West for new trial and in arrest were overruled, and judgment rendered on the verdict.

The motion to quash was based (1) upon the ground, in effect, that the indictment, and each count, was defective in not so alleging and setting out the offense, and so identifying it, as to advise the defendants of the nature and cause of accusation against them; and (2) that there was a misjoinder of felonies in the indictment. The first objection is based upon the provision of the constitution that in all criminal prosecutions the accused shall have the right ‘to demand the nature and cause of the accusation against him.’ Section 9, art. 2. The purpose of this provision is intended to secure to the accused such specific designation of the offense laid to his charge as will enable him to prepare fully for his defense, and plead the judgment in bar of the subsequent prosecution for the same offense 1 Bish. Crim. Proc. § 98; State v. Learned, 47 Me. 426;State v. Mace, 76 Me. 64;Murphy v. State, 24 Miss. 590, 28 Miss. 637; State v. Startup, 39 N. J. Law, 432; McLaughlin v. State, 45 Ind. 338;Landringham v. State, 49 Ind. 186;U. S. v. Carll, 105 U. S. 612,U. S. v. Simmons, 96 U. S. 362;Com. v. Phillips, 16 Pick. 211; Same v. Wood, 4 Gray, 11. In Murphy v. State, supra, it was said that the provision of the constitution ‘was intended to secure to the accused such a specific designation of the offense laid to his charge as would enable him to make every preparation for his trial necessary to his full and complete defense.’ Bishop, in his work on Criminal Procedure, (volume 1, § 98,) says: ‘Under every sort of constitution known among us an indictment which does not substantially set down, at least in general terms, all the elements of the offense,-everything which the law has made essential to the punishment it imposes,-is void; and, be sides this, under most of our constitutions the allegation must descend far enough into the particulars and be sufficiently certain in its form of words to give the defendant reasonable notice of what is meant. Yet, on the other hand, none of our constitutions forbid the abolishing of the common-law forms, if other adequate forms are provided in their stead.’ In an indictment for an offense created by a statute, as said by this court in Johnson v. People, 113 Ill. 99, when the language of the statute creating the offense does not describe it, the pleader may ‘be bound to set them forth sufficiently’ to appraise the defendant of the offense with which he is charged. Whart. Crim. Law, § 221 et seq.; Kibs v. People, 81 Ill. 599;U. S. v. Gooding, 12 Wheat. 460;State v. Raines, 3 McCord, 530;Com. v. Cook, 13 B. Mon. 149;Clark v. State, 19 Ala. 552;State v. Brown, 8 Mo. 210;Morse v. State, 6 Conn. 9; People v. Wilber, 4 Parker, Crim. R. 19; and cases supra. By the statute under consideration it is provided that ‘every president * * * of any bank, * * * manufacturing or other corporation * * * who shall knowingly and designedly, and with intent to defraud any person, bank * * * or other corporation, issue * * * or caused to be issued * * * any false, fraudulent, or simulated certificates or other evidence of ownership of any shares of the capital stock of any bank * * * or other corporation shall be punished,’ etc. The offense is made to consist in knowingly and designedly issuing false, fraudulent, or simulated certificates or other evidence of ownership of stock of his corporation by the president or other officer or employe, with intent to defraud any person or corporation. All these facts are alleged in the 1st, 2d, 3d, 4th, and 5th counts of the indictment, accompanied with apt allegations of the incorporation of the company whose stock was alleged to have been issued; that West was its president and Graham its secretary; the amount in shares of the alleged false, fraudulent, and simulated certificates of stock; to whom issued; and the corporation intended to be defrauded thereby. It is provided by section 468 of the Criminal Code that every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. These counts of the indictment stated the offense in the substantial language of the statute, and a majority of the court are of the opinion that the offense was so identified in each of the counts being considered as to apprise the defendants with reasonable certaintyof the nature and cause of the accusation against them, to enable them to prepare their defense, and plead the judgment in bar of further prosecution for the same offense; and this is all that is required by the constitutional provision referred to. In Morton v. People, 47 Ill. 468, it was held that an indictment alleging that the defendant obtained money ‘by means and by use of the confidence game,’ was rendered sufficiently certain, and the crime ‘sufficiently identified by the name of the victim’ upon whom it was alleged the confidence game had been practiced; which, it was held, must appear in every indictment under that statute. So that, although the indictment failed to set out the means used, or the facts and circumstances attending the obtaining of the money, the indictment sufficiently notified the defendant of the particular offense to enable him to prepare his defense, and plead a conviction thereon in bar of subsequent prosecution. In Loehr v. People, 132 Ill. 502, 24 N. E. Rep. 68, it was held that an allegation that the defendant, ‘a record, to-wit, the collector's book of Bloomington township, McLean county, and state of Illinois, then and there feloniously, willfully, and maliciously did deface and falsify, contrary,’ etc., ‘sufficiently identified the offense.’ See, also, Miller v. People, 2 Scam. 233;Cannady v. People, 17 Ill. 158;Lyons v People, 68 Ill. 273;Cole v. People, 84 Ill. 216;Fuller v. People, 92 Ill. 182.

Nor did the court err in overruling the motion to quash said counts upon the second ground alleged. In prosecutions for felony, as we shall see later on, the defendant cannot be placed on trial for separate and distinct felonies; but he cannot insist that he shall not be put upon trial on an indictment containing counts charging separate felonies, unless it affirmatively appears that they are not parts of one and the same transaction, but are separate and distinct in law and in fact. It is entirely proper, and the uniform practice, to insert several counts, charging the felony in different ways, with a view to meet the varying phases of the evidence. And the court...