132 Ill. 363 | Ill. | 1890
delivered the opinion of the Court:
This is an indictment against the plaintiff in error in the Circuit Court of DeWitt County for an assault with intent to commit larceny. In the court below the defendant entered a plea of not guilty, but was found guilty by the jury who fixed his punishment at imprisonment for one year in the penitentiary. Judgment was rendered and sentence pronounced in accordance with the verdict.
There is no bill of exceptions in the record. The chief error assigned is the overruling by the Circuit Court of the defendant’s motion in arrest of judgment. The motion assigns the following reason for the arrest of the judgment: “Because the indictment herein charges the defendant with having committed a misdemeanor, and the verdict of the jury found the defendant guilty of a felony."
The indictment charges that the defendant, on the second day of December, 1889, “feloniously did make an assault upon one Mary E. Nichols with intent then and there to steal, take and carry away the goods and chattels of the said Mary E. Nichols, towit: one pocket book of the value of one dollar and divers pieces of silver coin of the value of two dollars,” etc.
The defendant is claimed to be guilty of a misdemeanor only, and, therefore, not guilty of an offense punishable by imprisonment in the penitentiary, on the alleged, ground that the punishment for assault under our statute is a fine, and the punishment for stealing property of the value of $15.00, or less, is a fine and confinement in the county jail or sentence to labor. But the offense, for which the defendant is indicted, is neither assault nor larceny, but “assault with an intent to commit larceny.” The latter offense, by the terms of section 23 of Division I of the Criminal Code, “shall subject the offender to imprisonment in the penitentiary for a term not less than one year nor more than fourteen years.”
The words of the indictment—“steal, take and carry away the goods and chattels”—describe larceny, as that crime is defined in section Í67 of Division I of the criminal code. Therefore, the indictment charges the prisoner with the crime of assault with intent to commit larceny. Whether the value of the goods stolen is more than $15.00, or just $15.00, or less, in either case the crime is larceny. The only difference is, that, where the value exceeds $15.00, the punishment is im= prisonment in the penitentiary, and where the value does not exceed $15.00, the punishment is not imprisonment in the penitentiary.
Section 23 of Division I reads as follows: “An assault with an intent to commit murder, rape, mayhem, robbery, larceny, or other felony, shall subject the offender to imprisonment in the penitentiary,” etc. The Revised Statutes of 1845 (sec. 52, Div. 5, chap. 30) contained the same language, except that the word “confinement” was used instead of “imprisonment,” and the words, “or other felony,” were not used. The Revised Statutes of 1845 also provided, that in case the value of property obtained by larceny should not amount to five dollars, the punishment should be imprisonment in the county jail and fine. (Sec. 65, Div. 7, chap. 30). Manifestly under the law of this State as it existed in 1845, an assault with an intent to commit larceny was punishable by imprisonment in the penitentiary, whether the value of the property stolen was greater or less than $5.00. If the words “or other felony” had not been inserted in the Revised Statutes of 1874, it would be admitted that assault with intent to commit larceny was made punishable with imprisonment in the penitentiary, whether the value of the property stolen exceeded $15.00, or equalled, or fell below that amount.
But it is claimed that, by the addition of the words, “or other felony,” in the act of 1874, the Legislature evinced the intention of limiting the offense to assault with intent to commit larceny of property exceeding in value $15.00. It is said, that the effect of the use of those words is to define the offense as an assault with an intent to commit a felony only, and that larceny of property, whose value equals or falls below $15.00, is not a felony.
The statute, however, does not speak of assault with intent to commit grand larceny, or larceny of the higher grade as fixed by the value of the goods stolen; it uses the general word, “larceny, ” which is broad enough to embrace all grades of that offense. If then the word, “larceny,” refers to and includes' both grand larceny and petit larceny, and the words, “or other' .felony,” as here used, were intended to describe all the previously named offenses as felonies, it would follow that petit larceny, or the larceny of goods equalling, or less than, $15.00 in value, would be designated as a felony. But this construction •would be inconsistent with sections 5 and 6 of Division 2 of the same act of 1874, where a felony is defined to be “an offense punishable with death or by imprisonment in the penitentiary,” and every other offense is defined to be a misdemeanor.
We, therefore, conclude that the words, “or other felony,” in section 23 were intended to designate such other offenses, besides murder, rape, mayhem, robbery and larceny, as amount to felonies, and that they were not intended to limit the offense of assault with intent to commit larceny to assault with intent to commit that higher grade of larceny which is defined to be felony. .The thief, who assaults a man on the street with the intention of stealing his purse, knows not what is in the purse. His intention in making the assault is to get the contents of the purse, whether such contents amount to $15.00, or less, or ■ more. After he has knocked his victim down and rifled his pockets, the fact that the pockets happen, without his knowledge and much to his chagrin, to contain less than $15.00, is . a poor argument in favor of the position, that he made the assault with intent to commit merely a misdemeanor. In justice and in morals his crime is the same, and his guilt is as : ■great, when the result of his assault is only $3.00, as if such result had been more than $15.00.
It is also claimed that the record does not show that the indictment was returned in open court. There appears in the record an entry, of the December term, 1889, that the Grand ' Jury came “to the bar of the court” and made certain presentments. Then follows the title of the case of The People of' the State of Illinois v. Matt Kelly alias Martin King. (Gahan, v. The People, 58 Ill. 160). There is also the following entry ■ upon the record: “Be it remembered towit: On the sixth day of December, A. D. 1889, there was filed in the office of the clerk of the Circuit Court of DeWitt County, Illinois, an indictment, which is in the words and figures following towit: State of Illinois, DeWitt County, ss: Of the December Term of the DeWitt Circuit Court in the year of our Lord one thousand eight hundred and eighty nine, the Grand Jurors, chosen, selected and sworn in and for the county of DeWitt, State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present, that Matt Kelly alias Martin King, late of the County of DeWitt and State of Illinois, on the second day of December in the year of our Lord one thousand eight hundred and eighty nine, at and in the county aforesaid, feloniously did make an assault,” etc. Then follow the words already quoted from the indictment, which describe the offense charged. After the words so quoted the indictment closes as follows: “the kind of said coins being to the said jurors unknown; contrary to the form of the Statute in such case made and provided and against the peace and dignity of the said People of the State of Illinois.
William Booth,
State’s Attorney in and for said Comity of DeWitt.”
Then follows the statement that the indictment was endorsed as follows: “The People of the State of Illinois v. Matt Kelly. Indictment. A true bill. Eliakim Sylvester, Eoreman of Grand Jury. Witnesses”: (naming five persons).
These recitals bring the case within the rule upon this subject as laid down in Morton v. The People, 47 Ill. 468, where the entries upon the record were the same as they are here, and where such entries were held to be evidence that the indictment had been returned into open court. (Gardner v. The People, 3 Scam. 83; Hughes v. The People, 116 Ill. 330).
It is also assigned as error that the record fails to show that the prisoner was furnished with a copy of the indictment, or list of witnesses, or list of petit jurors, or either of them. That tlie accused should be furnished with such copy and lists is required by section'l of Division 13 of our criminal code. That section, as it now stands in the statute, is the same as was section 180 of chapter 30 of the Eevised Statutes of 1845. In construing said section 180, we said in McKinney v. The People, 2 Gilm. 540 : “When a prisoner or defendant in an indictment is called to plead, he may, under this provision of the statute, demand a copy of the indictment, etc., before he can be compelled to plead, and if the court should refuse this request, upon preserving the fact, it would undoubtedly be error.” ' Such course was not pursued by the plaintiff in error in the present case.
On the contrary the record here shows, that the prisoner came in his own proper person and by his attorney, “and waives formal arraignment by the court, and for plea says he is not guilty in manner and form as charged in the indictment.” At common law a part of the formal arraignment of a prisoner was the reading of the indictment to him, which is now made unnecessary by the fact that he is furnished with a copy of the indictment before arraignment. (Fitzpatrick v. The People, 98 Ill. 259).
The point here made is not that the copy and lists required to be furnished by the statute were not so furnished, but that the record brought to this court does not on its face show that they were so furnished. We think that, before waiving formal arraignment and pleading to the indictment, the prisoner should have demanded the copy and lists and, upon being refused, should have excepted and presented the facts of such demand, refusal and exception to this court by a bill of exceptions. Not having done so, he cannot be heard to complain now. (Loper v. State, 3 How. (Miss.) 429; State v. Hernandez, 4 La. Ann. 379; State v. Cook, 20 id. 145; State v. Fuller, 14 id. 667)
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
