{ "id": 5349358, "name": "Michael Murphy v. The People of the State of Illinois", "name_abbreviation": "Murphy v. People", "decision_date": "1882-11-20", "docket_number": "", "first_page": "528", "last_page": "536", "citations": [ { "type": "official", "cite": "104 Ill. 528" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "56 N. Y. 394", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 519140 ], "opinion_index": -1, "case_paths": [ "/ny/56/0394-01" ] }, { "cite": "1 Hun, 19", "category": "reporters:state", "reporter": "Hun,", "opinion_index": -1 }, { "cite": "43 N. Y. 61", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2048089 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ny/43/0061-01" ] }, { "cite": "123 Mass. 428", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "19 N. Y. 127", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 497685 ], "opinion_index": -1, "case_paths": [ "/ny/19/0127-01" ] }, { "cite": "12 Bush, 176", "category": "reporters:state", "reporter": "Bush", "case_ids": [ 4389942 ], "opinion_index": -1, "case_paths": [ "/ky/75/0176-01" ] }, { "cite": "53 Cal. 284", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2343352 ], "opinion_index": -1, "case_paths": [ "/cal/53/0284-01" ] }, { "cite": "25 Minn. 66", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 765798 ], "opinion_index": -1, "case_paths": [ "/minn/25/0066-01" ] }, { "cite": "134 Mass. 325", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "58 Ala. 414", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8492104 ], "opinion_index": -1, "case_paths": [ "/ala/58/0414-01" ] }, { "cite": "17 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590929 ], "weight": 3, "pin_cites": [ { "page": "397" } ], "opinion_index": -1, "case_paths": [ "/ill/17/0339-01" ] }, { "cite": "59 Ga. 154", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 585495 ], "opinion_index": -1, "case_paths": [ "/ga/59/0154-01" ] }, { "cite": "2 McCord, 257", "category": "reporters:state", "reporter": "McCord", "case_ids": [ 220401 ], "opinion_index": -1, "case_paths": [ "/scl/13/0257-01" ] }, { "cite": "30 Ill. 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5208773 ], "opinion_index": -1, "case_paths": [ "/ill/30/0373-01" ] }, { "cite": "81 Ill. 599", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2673062 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/81/0599-01" ] }, { "cite": "16 Ill. 74", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590056 ], "opinion_index": -1, "case_paths": [ "/ill/16/0074-01" ] }, { "cite": "68 Ill. 275", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "4 Gilm. 113", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": 0 }, { "cite": "3 Scam. 329", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2471567 ], "opinion_index": 0, "case_paths": [ "/ill/4/0329-01" ] }, { "cite": "123 Mass. 438", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 735069 ], "opinion_index": 0, "case_paths": [ "/mass/123/0438-01" ] }, { "cite": "124 Mass. 325", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 733300 ], "opinion_index": 0, "case_paths": [ "/mass/124/0325-01" ] }, { "cite": "43 Ill. 397", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5264596 ], "opinion_index": 0, "case_paths": [ "/ill/43/0397-01" ] }, { "cite": "16 Ill. 506", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2588983 ], "opinion_index": 0, "case_paths": [ "/ill/16/0506-01" ] }, { "cite": "43 N. Y. 61", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2048089 ], "opinion_index": 0, "case_paths": [ "/ny/43/0061-01" ] }, { "cite": "19 N. Y. 127", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 497685 ], "opinion_index": 0, "case_paths": [ "/ny/19/0127-01" ] }, { "cite": "12 Bush, 176", "category": "reporters:state", "reporter": "Bush", "case_ids": [ 4389942 ], "opinion_index": 0, "case_paths": [ "/ky/75/0176-01" ] }, { "cite": "53 Cal. 284", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2343352 ], "opinion_index": 0, "case_paths": [ "/cal/53/0284-01" ] }, { "cite": "25 Minn. 66", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 765798 ], "opinion_index": 0, "case_paths": [ "/minn/25/0066-01" ] }, { "cite": "58 Ala. 414", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8492104 ], "opinion_index": 0, "case_paths": [ "/ala/58/0414-01" ] }, { "cite": "17 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590929 ], "opinion_index": 0, "case_paths": [ "/ill/17/0339-01" ] }, { "cite": "81 Ill. 599", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2673062 ], "opinion_index": 0, "case_paths": [ "/ill/81/0599-01" ] }, { "cite": "16 Ill. 74", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590056 ], "opinion_index": 0, "case_paths": [ "/ill/16/0074-01" ] } ], "analysis": { "cardinality": 772, "char_count": 18745, "ocr_confidence": 0.503, "pagerank": { "raw": 2.9357876217632645e-07, "percentile": 0.8477185349416124 }, "sha256": "7f9178c247f6585afa7296fc6a0ca0df5159b3d95cc79d4faa66696380ab6f70", "simhash": "1:0bcb44f95ff03fad", "word_count": 3373 }, "last_updated": "2023-07-14T18:17:57.202414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Michael Murphy v. The People of the State of Illinois." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nPlaintiff in error and John Fay were jointly indicted for the crime of larceny. They were jointly tried, and the jury found plaintiff in error guilty, and Fay not guilty. Judgment was entered upon this verdict, after overruling a motion for a new trial, and this writ is prosecuted to reverse that judgment, for several errors alleged which we shall proceed to briefly consider.\nFirst\u2014It is claimed the verdict is not sustained by the evidence. The undisputed facts, as proved on the trial, are:\nOne Coskey, and a friend accompanying him, entered a saloon, in Joliet, kept by Fay, and procured drinks, and Coskey not having the exact amount of money with which to pay for the drinks, handed Fay a twenty dollar gold coin, United States coinage, for the purpose of making \u201cchange.\u201d\nFay, on looking over his money on hand, said he could not \u201cchange\u201d it, and thereupon pushed the coin towards plaintiff in error, who was, at the time, standing by the bar, and requested him to go and get the coin \u201cchanged.\u201d Plaintiff in error took the coin, left the saloon, and never returned or accounted for the coin.\nThe case seems, in all its essential features, precisely like Farrell v. The People, 16 Ill. 506. There, one Hennis gave Farrell, who was a hack driver, a five dollar bill to be \u201c changed, \u201d in order that Hennis might pay Farrell twenty-five cents. Farrell did not return with the bill or the \u201cchange.\u201d This court held he was guilty of larceny.\nIn Welsh et al. v. The People, 17 Ill. 339, (a case similar in the controlling principle to that in the present ease,) it was said: \u201cWhere, as in this case, the alleged larceny is perpetrated by obtaining the possession of the goods by the voluntary act of the owner, under the influence of false pretenses and fraud, when the cases are carefully examined and well understood, there is no real difficulty in deducing the correct rule, by which to determine whether the act was a larceny and felonious, or a mere cheat and swindle. The rule is plainly this: if the owner of the goods alleged to have been stolen, parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. It is obtaining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing* shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny. The pointed inquiry in such a case must always arise, did the owner part with the title to the things, and was the legal title vested in the prisoner. \u201d\nAgain, in Stinson v. The People, 43 Ill. 397, the same doctrine was reiterated. It was there, among other things, said: \u201cIf, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a felony, if the goods were obtained with that intent.\nThis settles the law in this State, but analogous ruling, elsewhere, may be found in the following cases, referred to in argument by the Attorney General: Bailey v. The State, 58 Ala. 414; Commonwealth v. Barry, 124 Mass. 325; State v. Williamson, 1 Houst. Crim. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 438; People v. McDonald, 43 N. Y. 61; Hildebrand v. People, 56 id. 394.\nNo mitigating or extenuating circumstance was given in evidence, and no ground is therefore apparent upon which it can be said the verdict is not sustained by the evidence. The proof on behalf of the prosecution made a case, and that proof is in no manner overcome or impaired by countervailing proof on\" behalf of plaintiff in-error.\nSecond\u2014It is\" argued the second count in the indictment is for embezzlement, and it is bad. Suppose it is, the first count is undoubtedly good, and that is sufficient to sustain the general verdict of guilty.' (Townsend v. The People, 3 Scam. 329; Holliday v. The People, 4 Gilm. 113.) But if the counts be both good, and we think they are, inasmuch as it is evidently but the statement of the same felony in different forms, the joinder i is not objectionable. (Lyons et al. v. The People, 68 Ill. 275.) Joinder of embezzlement with larceny is in accordance with the well established practice. 1 Wharton\u2019s Criminal Law, (7th ed.) latter part of sec. 420, and cases referred to in note v.\nAnd it may also be properly here added, the objection that there is a variance between the proof and the second count, (if it were important to consider such a question when it does not also lie to the first count,) is untenable. The averment, that the delivery was to plaintiff in error, is literally sustained. As to that act,- Fay is to be regarded as the agent of Coskey, and the rule applicable is, what the principal does by an agent he does by himself.\nThird\u2014Counsel for plaintiff in error contend the property here was not properly laid in the indictment as the property of Coskey. We can not yield our assent to this view of the law. In all the cases before referred to on the question of the character of the offence made out by the unquestioned facts, a contrary doctrine is announced. The property may be alleged in the indictment as the property of the real owner, or of any person having a special property in it as bailee. (2 Russell on Crimes, (7th Am. ed.) 89, *90; 2 Wharton\u2019s Criminal Law, (7th ed.) sec. 1818, et seq.) But clearly no title here passed to plaintiff in error. There was no intentidn he should become owner. He was simply to perform a duty in regard to the property,\u2014\u201cchange\u201d it,\u2014 that is, convey it to one who would give what, in popular language, is denominated \u201cchange,\u201d viz: bills, or gold or silver coins, or some of each, of lesser denominations, in amount of equal value, in exchange for it, and return this \u201cchange\u201d to Coskey. Fishback v. Brown, 16 Ill. 74, cited and relied upon by counsel for appellant, does not affect the question. In that case, what was decided was simply that a party \u201cchanging\u201d money for an agent, supposing him to be acting as principal, may proceed against either the agent or the principal, when he discovers him, in the event of a right of action growing out of such \u201cchanging\u201d of money. The agent was there held liable because the principal was not known and trusted, but there would not have been the slightest objection, had the party so elected, to holding the real principal liable.\nIt may be, had this coin been alleged to have been the property of Fay, plaintiff in error could not have objected to his title, but this furnishes no objection to the property being alleged in the real owner. In point of fact, no title ever passed to Fay. It was passed to him just as he passed it to plaintiff in error\u2014not to invest title, but to procure it to be changed into (or, to speak more accurately, exchanged for,) bills or coins, or a combination of each, of smaller denominations, in an aggregate amount and value equal to it, and as to that act he was, legally, the agent of Coskey.\nWe can not perceive that Kibs v. The People, 81 Ill. 599, has any bearing upon the ease. There the indictment was for larceny only, as at common law, while here we have a count for larceny as at common law, and a count for embezzlement, and hence if the proof sustains either, the conviction must stand. But from the authorities cited, and what has been said, it must be evident, we are of opinion, the evidence sustains the count for larceny as at common law.\nThe affidavits in support of the motion for,a new trial disclose no sufficient ground. Two of them merely show efforts of the plaintiff in'error to get money \u201cchanged, \u201d\u2014what money, is not conclusively shown. But even if it were this for the stealing of which he is convicted, that fact does not even tend to show his innocence. His offence is not in failing to get the money \u201cchanged,\u201d but in failing to return it, and in appropriating it to his own use. Doubtless. his own convenience required that it be \u201cchanged.\u201d The only other affidavit is that of plaintiff in error that he was intoxicated, and, by reason thereof, oblivious of all he did in regard to this money. Waiving comment upon some inconsistencies and improbabilities in this affidavit, we deem it sufficient to say the court below assigned plaintiff in error counsel for his defence, who, we must presume, was fully competent to the duty assigned him. 'Neither plaintiff in error nor that counsel deemed it advisable to introduce plaintiff in error, or any other witness, to make that proof upon the trial, nor was a continuance asked to obtain evidence in that regard. We can not permit the competency of counsel to defend persons charged with crime to be thus introduced as in issue on motion for a new trial.\nPerceiving no error in the record the judgment is affirmed.\nJudgpient affirmed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Messrs. Haley & O\u2019Donnell, and Mr. J. R Flanders, for the plaintiff in error, made the. following among other points in their argument:", "Mr. James McCartney, Attorney General, for the People:" ], "corrections": "", "head_matter": "Michael Murphy v. The People of the State of Illinois.\nFiled at Ottawa November 20, 1882.\n1. Criminal law\u2014larceny\u2014what constitutes. If the owner of goods alleged to have been stolen parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. \u00bb\n2. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny.\n3. Same\u2014in the particular case. On the trial of a person on an indictment for larceny, the facts, as shown by the prosecution, were, that one C. entered a place of business kept by one F., to make a purchase, and procured the article desired. The buyer, not having the exact amount of money with which to pay for the article purchased, handed the proprietor a twenty dollar gold coin for the purpose of making \u201c change. \u201d The proprietor, on looking over Ids money on hand, said he could not \u201cchange\u201d it, and thereupon pushed the coin towards the accused, who was standing near, and requested him to go and get the coin \u201cchanged.\u201d The accused took the coin, left the room, and never returned or accounted for the coin. It was held, these facts made a case under the indictment.\n4. Same\u2014variance\u2014by whom the coin was delivered. It was charged in the indictment that the coin was delivered to the accused by 0., the buyer, while the proof showed it was delivered by F., the proprietor, to whom it had been handed by 0., for the purpose of making \u201c change, \u201d and in this it was alleged there ivas a variance. But it was held, that as to the act of delivery, F., the proprietor, was to be regarded as the agent of G., the buyer, and the rule applicable was, what the -principal does by an agent he does by himself. So the allegation was literally sustained.\n5. Same\u2014in whom was the property in such case\u2014and in whom the title might be alleged. -Under the facts given, the property inUie coin was properly laid in the indictment as being in O.^the buyer. In an indictment for larceny, the property alleged to have been stolen may be laid as being the property of the real owner, or of any person having a special property in it as bailee. But in this case no title passed from 0., the buyer, to either F., the proprietor, or to the accused. It may be, however, that if the property had been alleged to be in F., the proprietor, the accused could not have objected to his title, but that would furnish no objection to the property being alleged in the real owner.\n6. Same\u2014one good count\u2014general verdict. Where a count for larceny and a count for embeZzleihent are joined in the same indictment, if the count for larceny be good, that will support a general verdict of guilty, although the count for embezzlement be bad.\n7. Same \u2014joinder of counts. A count for larceny and a count for embezzlement may be joined in the same indictment.\n8. New trial\u2014newly discovered evidence\u2014in a criminal case. Upon conviction for larceny in converting to the prisoner\u2019s own use a gold coin which had been entrusted to him for the purpose of gettipg the same exchanged for money of smaller denominations, and to be returned to the owner, the prisoner, upon motion for a new trial, presented affidavits of persons who stated that, the prisoner did, on the day of the alleged larceny, ask them to \u201cchange\u201d a gold coin of the denomination of the coin alleged to have been stolen. But what particular piece of money it was sought to have \u201cchanged,\u201d did not appear, and if it had been shown to be the identical coin delivered to.the prisoner, that fact could not avail him as ground for- a new trial, as the offence was not in failing to get the money \u201cchanged,\u201d but in failing to return it, and in appropriating it to his own use.\n9. Same\u2014questioning competency of counsel assigned by the court to defend a person on a criminal charge. Where the trial court has assigned counsel for the defence of a person charged with a criminal offence, it mil be presumed the counsel so assigned was competent to the duty to which he was appointed, and the question of the competency of such counsel will not be permitted to be introduced as an issue on a motion for a new trial.\nWrit of\"Error to the Circuit Court of Will county; the Hon. J. McRoberts, Judge, presiding.\nMessrs. Haley & O\u2019Donnell, and Mr. J. R Flanders, for the plaintiff in error, made the. following among other points in their argument:\nThe indictment charges Murphy with the larceny and embezzlement of one Coskey\u2019s money, the second count charging that Coskey delivered to him and Fay the twenty dollar gold coin, and that they\u2022 fraudulently converted the same to their own use. The proof shows that the coin was the property of Fay, and not of Coskey. The latter parted with the title and possession when he gave the coin to F. in payment for the drinks, and never expected to receive the same again, but only the balance left after paying what he owed Fay. Fishback v. Brown, 16 Ill. 74.\nThe title to the coin being in Fay, he gave it to Murphy to have it changed for smaller denominations, and Murphy went at Fay\u2019s request alone. Murphy was responsible only to Fay, from whom he received the money. Then the proof failed to sustain the charge, and no conviction could legally be had, .o\u00fa account of the variance.\nIt is necessary in both larceny and embezzlement that the ownership of the property should be laid in the indictment in the person who has the ownership, either general or special, and the proof must correspond with the allegation. 2 Bishop on Criminal Law, sec. 788; Bishop\u2019s Criminal Procedure, sec. 718.\nTo constitute embezzlement the money or thing must be obtained under color of right, and there must be its conversion to the -use of the person so obtaining it, with a fraudulent and felonious intent. What was larceny at common law, is not embezzlement under the statute. Kibs v. People, 81 Ill. 599.\nThe law does not presume that because money has been intrusted to an individual that he has embezzled or appropriated it to his own use. The party asserting that fact must prove it. (Thomas v. Dunaway, 30 Ill. 373.) The mere fact of not paying the money over, is clearly insufficient. (2 Bishop on Criminal Law, sec. 376; Rex v. Smith, Russ. & Ryan, 267.) Even though he sets up an excuse never so frivolous, or a claim in himself actually unfounded, (Rex v. Norman, Car. & M. 501,) or though he absconds, (Regina v. Creed, 1 Car. & K. 63,) it is essential that there should be a denial of having received the money, or else some false account be given. Regina v. Jones, 7 Car & P. 834.\nAs to when drunkenness is a defence for an act otherwise a larceny, see 1 Bishop on Criminal Law, sec. 411.\nThe judgment should have been arrested because the verdict was general, and judgment could not he rendered on it for the reason the defendant could not he guilty of both the offences charged. State v. Montague, 2 McCord, 257.\nMr. James McCartney, Attorney General, for the People:\nThe defendant\u2019s drunkenness is no defence to the crime charged. Marshall v. State, 59 Ga. 154.\nThe gold coin remained the money of Coslcey until the change was given him therefor. If no change had been Returned, could not Coskey, after waiting a reasonable time and making demand therefor, have maintained replevin for the coin ? The debt was not extinguished by the delivery of a piece of money much larger than the sum due.\nThe proofs show a conversion of the coin with a felonious intent. On this point, see Welsh et al. v. People, 17 Ill. 339 ; Stinson v. People, 43 id. 397; Farrell v. People, 16 id. 506 ; Bailey v. State, 58 Ala. 414; Commonwealth v. Barry, 134 Mass. 325; State v. Williamson, 1 Houst. Cr. C. 155; State v. Anderson, 25 Minn. 66; People v. Abbott, 53 Cal. 284; Elliott v. Commonwealth, 12 Bush, 176 ; Macino v. People, 19 N. Y. 127; Commonwealth v. Hurd, 123 Mass. 428; People v. McDonald, 43 N. Y. 61; Bassett v. Spofford, 45 id. 3S7; Hildebrand v. People, 1 Hun, 19; 56 N. Y. 394; Regina v. McKale, 11 Cox\u2019s Cr. C. 32; Regina v. Slowles, 12 id. 269.\nThe case of Kibs v. People, 81 Ill. 599, has reference to the proof necessary to sustain an indictment for the larceny of goods under section 74 of the Criminal Code, concerning embezzlement. This indictment has two counts, one for the simple larceny of this coin, and the other for the conversion of it under the embezzlement statute. The same evidence to sustain embezzlement is not absolutely required in this ease, although the evidence would sustain either count.\nThe complaint made in arrest of judgment needs little consideration. Many reasons might be given why a reversal of the judgment should not be made upon that ground, among which reasons that might be given, one is, the joinder of counts for simple larceny and for larceny by embezzlement was right, and that a g\u00e9n'eral verdict of guilty on such joinder was right. Both counts charge larceny, but larceny committed in two different ways." }, "file_name": "0528-01", "first_page_order": 528, "last_page_order": 536 }