Baschleben v. People
58 N.E. 946
Ill.
1900
Check Treatment
Per Curiam:

Section 3 of division 4 of the Criminal Code is as follows: “All indictments for other felonies” (except murder or manslaughter, arson or forgery) “must be found within three years next after the commission of the crime, except as otherwise provided by law.” (1 Starr & Cur. Ann. Stat. — 2d ed. — p. 1371). The present indictment was found on April 30, 1898, and, therefore, the three years began to run on April 30, 1895. Some of the evidence tends to show that the money, which plaintiff in error is charged with having embezzled, was converted to his own use before 1895, and some of the testimony tends to show that it was converted after 1895. It was for the jury to say, under all the evidence, whether or not the fraudulent embezzlement or conversion took place within the three years before the indictment was found, or before the beginning of said period of three years.

Upon this question the trial court of its own motion gave to the jury the following instruction, to-wit:

“The jury are instructed that the law of Illinois requires that a prosecution for the offense of embezzlement shall be begun within a period, of three years after the commission of such offense. This is what is meant by the ‘Statute of Limitations.’ This statute, however, does not begin to run until the discovery that the offense has been committed, or until the money charged to have been embezzled was demanded of the defendant by the person, corporation or society entitled to the possession of the same, and the failure or refusal of the defendant to deliver to such person, corporation or society the money which is in his possession, and which the evidence or admission of the defendant shows to be the property of such person, corporation or society.”

The instruction, so given to the jury by the court of its own motion, is erroneous under the decision made by this court in the recent case of Weimer v. People, 186 Ill. 508. In Weimer v. People, supra, it was said: “The charge is, that the accused embezzled and fraudulently converted the moneys of the town to his own use. In such a case the statute would, of course, begin to run when the offense was committed, and not at some later time when he failed or refused to pay over to his successor on demand made.” In that case it was further said: “The statute began to run against any embezzlement or fraudulent conversion when it was committed, and not when it was discovered, or made manifest by a failure to pay over on demand.” Inasmuch as the instruction above quoted announces that the.statute does not begin to run until the date of the discovery or demand, and inasmuch as it is held in Weimer v. People, supra, that the statute commences to run from the date of the commission of the offense, and not from the date of demand or discovery, the said instruction must be held to be bad.

For the error in giving the instruction as above quoted, the judgment is reversed and the cause is remanded to the criminal court of Cook county for further proceedings in accordance with the views herein expressed.

Reversed and remanded.