2 N.E.2d 705 | Ill. | 1936
A jury in the criminal court of Cook county found Charles D. Duncan, defendant, guilty as an accessory in the violation of the Motor Fuel Tax act. After certain counts were nolleprossed, the indictment contained eighteen counts. Fourteen of these were predicated upon sales of gasoline by his principal over a period of fourteen months, the collection of taxes thereon, and the failing and refusing *496 to account therefor to the Department of Finance, the sales of each month constituting a separate offense. The remaining four counts charged the principal with doing business as a distributor, (as defined by the act) without having a distributor's license. Each count contained the necessary allegations connecting Duncan as an accessory before the fact with the allegedly unlawful acts of his principal. By judgment on the verdict the court fined Duncan $2000 on each of the eighteen counts and imposed a sentence of one to five years in the penitentiary on the last four counts, the sentences to run concurrently. This writ of error followed.
The principal was the Blue Rose Oil Company, an Illinois corporation. Duncan was the president and active manager of all the business of the corporation, and virtually controlled its policies. Litigation over the dissolution of this corporation by the People reached this court in People v. Blue Rose Oil Co.
The briefs filed have not been of any appreciable aid to this court in deciding the case. Counsel for Duncan has briefed and argued forty-four points, while the People have cited and argued the law in opposition thereto, all to no avail. Both parties to this writ of error have failed to perceive a glaring defect, apparent upon the face of the common law record, which renders the whole proceeding fatally defective.
The charge against Duncan is based upon the accessory statute of the Criminal Code. (Smith's Stat. 1933, chap. 38, par. 582; Cahill's Stat. 1933, chap. 38, par. 611.) The penalty imposed is taken from the Motor Fuel Tax Law. (Smith's Stat. 1933, chap. 120, par. 431; Cahill's Stat. 1933, chap. 95a, par. 93.) The accessory statute provides that the defendant, "shall be considered as principal, and punished accordingly." The penalty imposed by the Motor *497
Fuel Tax act for violation thereof by the principal, is a "fine not to exceed $5000 or by imprisonment in the penitentiary for not less than one year nor more than five years or by both such fine and imprisonment." As Duncan is charged with being only an accessory before the perpetration of the acts charged in the indictment, he must have a principal. It is of course the Blue Rose Oil Company, a corporation. While it is the generally recognized rule that a corporation may be proceeded against criminally for the violation of a penal statute, (Chicago,Wilmington and Vermilion Coal Co. v. People,
When the People indicted Duncan as an accessory under the provisions of the Criminal Code and sought to apply the penalties of the Motor Fuel Tax act, they acted upon an erroneous theory. Duncan has received a penalty which his principal could not receive. At the common law the punishment meted out to principals, and to their accessories before the fact, was generally the same. (People v. Jordan,
The penalty provisions of the Motor Fuel Tax act cannot be applied to imprison a natural person who is an accessory before the fact, where his principal is a corporation. To that extent, we hold by this opinion, that the accessory statute, dealing with accessories before the fact, is repugnant to and cannot be harmonized with the penalty section of the Motor Fuel Tax act involved in this case. The fact that Duncan was only fined on the first fourteen counts and sentenced to prison on the last four does not *499 make any difference, for he stood committed, by the sentence, to the house of correction in Cook county if the fines were not paid by the time he was released from prison. The fines totaled $36,000, which, if not paid according to the condition, were to be satisfied by Duncan's commitment to the house of correction at the rate of $1.50 a day. On this basis he would remain there 24,000 days, over 65 years. Clearly the corporate principal could not be imprisoned to satisfy a fine. In the view we take of this case, we are not required to determine whether this punishment is in violation of the provision of the constitution that punishment shall be proportionate to the offense.
The judgment of the criminal court of Cook county is reversed.
Judgment reversed.