| Ill. | Oct 28, 1910
delivered the opinion of,the court:
It is first claimed that the court erred in overruling a motion to quash the indictment. The indictment contained seven counts. The fourth count was nollied and the other counts were each in the language of the statute, and charged that the plaintiff in error was the agent of Malinda Vickerage, and as such agent collected and embezzled the funds of Malinda Vickerage to the amount of $7000. The indictment was sufficient and the court did not err in overruling the motion to quash. Lycan v. People, 107 Ill. 423" date_filed="1883-10-01" court="Ill." case_name="Lycan v. People">107 Ill. 423; Ker v. People, 110 id. 627; McElroy v. People, 202 id. 473.
It is also urged that the court erred in declining to require the prosecutor to furnish the plaintiff in error a bill of particulars. Whether or not the State’s attorney should have been ruled to furnish the plaintiff in error a bill of particulars was a matter which rested in the sound legal discretion of the trial court. The several counts of the indictment were sufficiently specific to advise the plaintiff in error of the charges he was required to meet, and we think the court did not err in overruling his motion for a bill of particulars. Morton v. People, 47 Ill. 468" date_filed="1868-06-15" court="Ill." case_name="Morton v. People">47 Ill. 468; DuBois v. People, 200 id. 157; Gallagher v. People, 211 id. 158; People v. Weil, 243 id. 208.
It is next urged that the trial court erred in permitting John E. Hogan and E. E. Dowell, two regularly licensed attorneys, to assist the State’s attorney in the prosecution of this case. These attorneys were permitted by the court to assist in the trial of the case' upon the motion of the State’s attorney. The plaintiff in error was represented upon the trial by able counsel, and we are unable to see, from anything that appears in’ this record, that the trial court abused the discretion reposed in it in permitting Mr. Hogan and Mr. Dowell to assist the State’s attorney in the prosecution, of the case. Hayner v. People, 213 Ill. 142" date_filed="1904-12-22" court="Ill." case_name="Hayner v. People">213 Ill. 142.
It is further urged that the court erred in requiring the plaintiff in error to exercise two of his- peremptory challenges by overruling his challenges for cause to Louis Bowersoclc and J. J. Higginbottom, who were called as jurors. The record shows that when said jurors were called they were severally examined by counsel for plaintiff in error and each was challenged for cause, and upon the challenge for cause to each being overruled they were excused upon the peremptory challenge of the plaintiff in error; that the panel was then filled by other jurors who were apparently satisfactory to both sides; that thereupon the counsel for plaintiff in error stated to the court that he desired to peremptorily challenge another juror, but that he had been prevented by the court from so doing by being forced to exercise all his peremptory challenges. The juror which ‘the plaintiff in error desired to challenge was not designated and the court made no ruling nor was it asked to make a ruling, but after the statement of counsel above referred to was made and taken down by the official reporter the jury was sworn and the case proceeded. It does not appear that the plaintiff in error was required to be tried by an unfair or prejudiced juror, and the point that the plaintiff in' error was required to prematurely exhaust his peremptory challenges is not properly preserved for review in this court upon this record.
It is' further urged by the plaintiff in error that the jury were improperly instructed as to the law upon behalf of the People, and that instructions offered on his behalf were improperly refused or improperly modified before they were given to the jury. We have examined all of the instructions which were given, modified before they were given, and refused, and when the given instructions are considered as a series we think the jury were fairly instructed as to the law of the case.
It is finally contended that the verdict is not supported by the evidence and is contrary to the law, and for these reasons the court erred in declining to instruct the jury, at the close of all the evidence, to find the plaintiff in error not guilty. In support of this contention it is urged that the evidence shows that the plaintiff in error had an interest in the funds collected from the rent of the Flint Hotel .to the extent of his commissions, and that he had an interest in the amount collected from Colgrove to the extent of the balance due him for fees and disbursements in representing Malinda Vickerage in the exchange of the Flint Hotel for the Colgrove farm, and in other services performed by him for Malinda Vickerage, and that the law in this State is well settled in McElroy v. People, supra, that under the statute of this State making it larceny by embezzlement for an agent to fraudulently convert to his own use funds which he has received as such agent, a defendant cannot be rightfully convicted of embezzlement and fraudulently converting to his own use a. fund in which he has an interest although such fund came into his hands as agent. The court instructed the jury, upon' behalf of the plaintiff in error, that if they believed, from the evidence, that the plaintiff in error was a part owner of any of the funds which he was charged with embezzling or fraudulently converting to his own use, he could not properly be convicted of embezzling or fraudulently converting to his own use such funds. Nevertheless, the jury convicted the plaintiff in error. The evidence shows that Malinda Vickerage agreed to pay the plaintiff in error a .commission upon the rent he collected upon the Flint Hotel, and that he should have the right to retain his commissions out of the rents collected by him. Under the authority of McElroy v. People, supra, we are of the opinion the plaintiff in error had such an interest in said rent that he could not lawfully be convicted of embezzling the rent, and.the jury, under the instructions of the court, doubtless found that the plaintiff in error was not guilty of embezzling or fraudulently converting to his own use such rent. We think, however, from the evidence, that the plaintiff in error had no interest in the funds received from Colgrove at the time of the exchange of the Flint Hotel for the Colgrove farm. The contract in writing hereinbefore set out in this opinion provides that the plaintiff in error should dispose of the hotel property as best he could, and “when so disposed of, the proceeds of such disposition” should be paid over to Malinda Vickerage. While it may be that the plaintiff in error would be entitled to compensation for disposing of the Flint Hotel to Colgrove and for the other services performed by him for Malinda Vickerage, the evidence wholly fails to show that the plaintiff in error had the right to deduct such compensation from the money received from Colgrove, but, on the contrary, the evidence shows that he expressly agreed to turn over to Malinda Vickerage the proceeds arising from the sale of the Flint Hotel, without deductions. In the McElroy case the plaintiff in error had the-right to deduct her commissions from the amount collected by her by express agreement,—that is, she was only required to account to her employer for the amount remaining in her hands after she had deducted her commissions. She therefore had, as was held by the court, an interest in the funds in her hands which she had collected. That case, therefore, differs from the case at bar.
It has been held by a number of courts,—and we believe that to be the sound rule,—that the right to commissions or fees does not constitute a joint ownership in the fund collected unless the terms of the contract? which creates the agency expressly provide that the agent collecting the fund has the right to retain from the particular fund his commissions or fees. (Commonwealth v. Jacobs, 126 Ky. 536" date_filed="1907-10-01" court="Ky. Ct. App." case_name="Commonwealth v. Jacobs">126 Ky. 536; 15 Am. & Eng. Ann. Cas. 1226; also 13 L. R. A. [N. S.] 511, and cases cited.) In this case the plaintiff in error, by virtue of the agency which was created by the written contract of August 19, 1907, conveyed to Colgrove the Elint Hotel property and received $3250 in cash from Colgrove, which he agreed, by the terms of said contract, to turn over to Malinda Vickerage. This he failed to do and fraudulently converted the same to his own use. This transaction was clearly a violation of the statute, and the plaintiff in error was properly found- guilty by the jury of embezzling and-fraudulently converting to his own use the funds which he received from Colgrove, as the agent of Malinda Vickerage.
The plaintiff in error has raised and urged in his brief other grounds of reversal, but we think them without force.
The judgment of the city court of Pana will therefore be affirmed.
r ^ , Judgment affirmed.
Mr. Chief Justice Vickers, dissenting.