190 N.E. 264 | Ill. | 1934
Lead Opinion
Charles F. Lee was found guilty of embezzlement in the circuit court of Shelby county by a jury and sentenced to the penitentiary. He now seeks a reversal of the judgment by this writ of error.
The indictment consisted of one count, charging that as township treasurer of township 9 north, range 2 east of the third principal meridian, Shelby and Fayette counties, he embezzled certain money and property of school district No. 154, Shelby county.
Prior to entering his plea of not guilty Lee made a motion to quash the indictment. This motion was denied, and its denial is one of the grounds assigned as error. In support of this motion it is urged by Lee that the allegation that the money was the property of school district No. 154 was not a proper pleading and did not aptly charge a criminal offense — that the indictment should have charged that the funds were the property of the trustees of schools of the township. Counsel for Lee made an oral motion to quash the indictment, but the record shows that it was not urged and that it was submitted to the court without argument. An oral motion to quash an indictment without pointing out wherein it is defective is in the nature of a general demurrer, and, therefore, raises only questions relating to defects of substance. Under these circumstances, where the motion is denied, the ruling of the court can only be held erroneous where there are innate and substantial defects in the indictment which would make it insufficient to support a judgment. (People v. Munday,
It is also urged that there are material variances between the allegations of the indictment and the proof. In this respect it is argued that the indictment alleges that Lee embezzled moneys of school district No. 154, township 9 north, range 2 east of the third principal meridian, Shelby county, Illinois, whereas the proof showed that the school district is a union district including a portion of Fayette county, and that there is no such district numbered 154 exclusively in Shelby county. However, if the description in the indictment had omitted all reference to Shelby county there still would be a sufficient description of this school district. There can be only one school district numbered 154 in township 9 north, range 2 east of the third principal meridian, in the State of Illinois. The alleged variance is not material, as no substantial injury was thereby done to the accused, nor was he prejudiced either in making his defense or in the danger of having again to answer the same charge. People v. Weisman,
Throughout the trial objections were repeatedly made by Lee's counsel to the introduction of evidence of transactions occurring over a ten-year period prior to March 28, 1925. Likewise, at the close of the People's evidence, and again at the close of all the evidence, peremptory instructions were offered on behalf of Lee and refused by the court. The indictment against Lee was not returned until March 28, 1928, and these objections urged the bar of the Statute of Limitations against transactions which occurred more than three years prior thereto. Under this indictment Lee could not have been tried for embezzlement committed prior to March 28, 1925, as the Statute of Limitations begins to run against an embezzlement or fraudulent conversion when it is committed and not when it is discovered *297
or made manifest by failure to pay over on demand. (Weimer v. People,
It also appears that on the trial of this case great numbers of books, documents and records were introduced showing large sums of money received and paid out by Lee, as township treasurer, over a course of twelve years, beginning in 1915. Counsel for Lee objected to all of these exhibits, and the court erred in admitting them over the objections. InPeople v. Ross,
The judgment is reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
So far as the majority opinion holds that the trial court committed reversible error against the defendant I am in accord with that opinion. I do not agree with the conclusion that the indictment in this case was sufficient as a proper pleading and that it aptly charged a criminal offense. The indictment should have charged that the funds alleged to have been embezzled were the property of the trustees of schools of the township. The court in passing upon the sufficiency of an indictment is not permitted to depart from the words employed in the indictment and speculate as to the possible intention or thought of the drawer of the indictment. Neither can the court supply matters of substance that have been omitted nor change or alter matters of substance which are charged by the indictment. (People v. Hallberg,
The legal title to the funds of the school district was in the trustees of schools. The school directors have the authority, under the statute, to levy a tax for school purposes and building purposes, yet it is significant that there is at no time provision for the payment to the school directors of any of the funds so raised by taxes. The statute limits their right to cause any of the money to be paid *299
out. They have no legal authority to draw a check upon the funds. The most that is permitted them is to draw orders on the treasurer for the payment of a valid existing indebtedness which has been incurred in the manner provided by law. Such orders must state upon their face, except in the case of orders payable for the services of the teachers, for what purpose the orders are drawn. School orders drawn by school directors upon the township treasurer, where such orders are drawn without authority of law, cannot be collected from the directors even though the order may be in the hands of an innocent purchaser for value. School Directors v. Fogleman,
An examination of the various provisions of the statute pertinent to the subject of the taxes will disclose that the school directors have no vested interest in the funds. The funds may be apportioned in the case of the organization of a new school district. (Ketcham v. Board of Education,
In determining the validity of the indictment under consideration, the name of the municipal corporation or body politic that could maintain a suit against the treasurer and his bondsmen for the recovery of the funds alleged to be embezzled is helpful. The case of Tappan v. People,
In an early case in this State a suit was brought by the trustees of schools against a township treasurer and his bondsmen to recover school funds which came into the custody and possession of the township treasurer. A judgment recovered by such trustees against the treasurer and his bondsmen was affirmed by this court. Thompson v. Board of Trustees,
It is imperative that the indictment correctly charge the ownership of the funds alleged to have been embezzled *301
and such ownership must be proved as charged. People v. Hobbs,
I am of the opinion that the trial court erred in refusing to quash the indictment, and in the alternative the motion made by the defendant in arrest of the judgment should have been granted.
JUSTICES FARTHING and SHAW concur in this dissenting opinion.