{ "id": 5626063, "name": "Ralph Lipsey v. The People of the State of Illinois", "name_abbreviation": "Lipsey v. People", "decision_date": "1907-04-18", "docket_number": "", "first_page": "364", "last_page": "381", "citations": [ { "type": "official", "cite": "227 Ill. 364" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "173 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5538266 ], "opinion_index": 0, "case_paths": [ "/ill/173/0043-01" ] }, { "cite": "159 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3133739 ], "opinion_index": 0, "case_paths": [ "/ill/159/0009-01" ] }, { "cite": "56 N. Y. 591", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 519290 ], "opinion_index": 0, "case_paths": [ "/ny/56/0591-01" ] }, { "cite": "126 Ill. 9", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5404663 ], "opinion_index": 0, "case_paths": [ "/ill/126/0009-01" ] }, { "cite": "153 Ill. 156", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3028838 ], "opinion_index": 0, "case_paths": [ "/ill/153/0156-01" ] }, { "cite": "197 Ill. 482", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844049 ], "opinion_index": 0, "case_paths": [ "/ill/197/0482-01" ] }, { "cite": "167 Ill. 618", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3090498 ], "opinion_index": 0, "case_paths": [ "/ill/167/0618-01" ] }, { "cite": "139 Ill. 526", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3005219 ], "opinion_index": 0, "case_paths": [ "/ill/139/0526-01" ] }, { "cite": "134 Ill. 444", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5438886 ], "opinion_index": 0, "case_paths": [ "/ill/134/0444-01" ] } ], "analysis": { "cardinality": 982, "char_count": 36216, "ocr_confidence": 0.741, "pagerank": { "raw": 8.940789537952323e-07, "percentile": 0.9785779016460033 }, "sha256": "f4d1d82ee4c07ec5a425607256c9e176055dfe36a2fb209cabd460daed6fa827", "simhash": "1:bf21e45c8b5611bb", "word_count": 6385 }, "last_updated": "2023-07-14T18:16:43.577041+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ralph Lipsey v. The People of the State of Illinois." ], "opinions": [ { "text": "Mr. Justice Hand\ndelivered the opinion of the court:\nThe grand jury, on the 24th day of January, 1906, returned into the criminal court of Cook county an indictment charging Ralph Lipsey, the plaintiff in error, with the offense of buying, receiving and aiding in concealing stolen property, knowing the same to be stolen, in manner following, that is to say: \u201cOne Ralph Lipsey, late of, etc., on the second day of September, 1905, in the county of Cook, etc., feloniously, unlawfully and unjustly, for his own gain and to prevent the owner from again possessing its property, did buy, receive and aid in concealing two thousand light sockets, of the value of sixteen and one-half cents each, of the goods and chattels of the Electric Appliance Company, the same being a corporation,-etc., then lately before feloniously stolen and carried away from the said Electric Appliance Company, the same being a corporation organized as aforesaid, by a certain evil disposed person or persons, the said Ralph Lipsey then and there well knowing the said goods to have been feloniously stolen, taken and carried away, contrary to the statute,\u201d etc. A trial was had at the February term of said court, which resulted in the conviction of the plaintiff in error and his sentence to the penitentiary, and he has sued out a writ of error from this court to reverse said judgment of conviction.\nIt is first contended the evidence was not sufficient upon which to convict the plaintiff in error of the crime with which he was charged.\nIt appears from the evidence that the Electric Appliance Company in the fall of 1905 was located at the corner of Jackson boulevard and DesPlaines street, in the city of Chicago, and was dealing in electric supplies; that in the month of October it purchased nineteen thousand Bryant & Perkins electric light sockets from the Perkins Electric Switch Manufacturing Company, which were packed in boxes, of five hundred in a box; that the boxes were numbered and were marked with the letters \u201cE, A. Co.\u201d at the time they were delivered to the Electric, Appliance Company; that prior to the month of October said Electric Appliance Company had in its employ one Arthur Dietrichstein; that during the months of October and November, and after the said Dietrichstein had left the employ of the Electric Appliance Company, Dietrichstein caused a boy in the employ of the Electric Appliance Company by the name of Leonard Graham to deliver to a drayman who did hauling for the Electric Appliance Company, at one time one box of electric light sockets and at another time four boxes of electric light sockets, with instructions to direct the drayman to deliver said boxes to the Great Northern Metal Company, whose place of business was located at 61 West VanBuren street, in the city of Chicago, of which company the plaintiff in error was president; that each delivery was accompanied by a letter from Arthur Dietrichstein to the Great Northern Metal Company; that at the time the first box was taken to the business place of the Great Northern Metal Company the plaintiff in error was present and received the box and letter from the drayman; that at the time the four boxes were taken to the business place of the Great Northern Metal Company the plaintiff in error was not present, and a man who was standing in the door of the business place of the Great Northern Metal Company with Arthur Dietrichstein directed the drayman not to unload the boxes at that place and to take them to the business place of the Guarantee Electric Company, on Adams street, in the city of Chicago, where they were delivered by the drayman; that a day or two before the twenty-second of October, 1905, which was the day upon which the four boxes of electric light sockets were delivered to the drayman by Graham, Mr. Frank, who was the manager of the Guarantee Electric Company, called up the Great Northern Metal .Company and asked the plaintiff in error if he had any more sockets, and stated that he was running short and needed more, and he also testified the plaintiff in error replied he would let him know later whether he had any more he could get for him; that on the second of November he was working in the basement of the place of business of the Guarantee Electric Company, and when he came up-stairs there were four boxes of electric light sockets on the floor and a bill on his desk for two thousand sockets, covering the four boxes which were delivered that day; that the bill was paid the next day to the plaintiff in error, who receipted the same as the president of the Great Northern Metal Company; that two of the boxes of electric light sockets so received from the Great Northern Metal Company were sold by the Guarantee Electric Company, and that the two remaining boxes were delivered by the Guarantee Electric Company to the Electric Appliance Company, and were identified by Frank as the two boxes of electric light sockets then in the court room; that one box had on it \u201cNo. 12,806, Perkins, Chicago, E. A. Co. 9386, 500,\u201d and the other, \u201cNo. 12,781, Perkins, Chicago, E. A. Co. 9386, 500,\u201d and said boxes were identified as boxes containing electric light sockets which were a part of the nineteen thousand invoice of electric light sockets received by the Electric Appliance Company from the Perkins Electric Switch Manufacturing Company in October, 1905. Arthur Dietrichstein paid to Leonard Graham $11 for his share of the proceeds of the four boxes the day after they were delivered to the drayman.\nThe evidence leaves no doubt in the unbiased mind but the five boxes of electric light sockets abstracted from the business place of the Electric Appliance Company were stolen by Arthur Dietrichstein and delivered, through Graham and the drayman, to the Great Northern Metal Company, of which the plaintiff in error was president. The first box was delivered to the plaintiff in error in person, and four boxes were delivered to the Guarantee Electric Company upon the order of a person at the business place of the Great Northern Metal Company, in pursuance of an arrangement made before that time by the plaintiff in error with Mr. Frank, of the Guarantee Electric Company, and a bill was rendered by the Great Northern Metal Company to the Guarantee Electric Company therefor, and the plaintiff in error received the price- thereof and receipted the bill therefor to the Guarantee Electric Company. In view of the foregoing facts the question arises, did the plaintiff in error have knowledge that said electric light sockets were stolen at the time they were delivered to him or to his corporation, and did he receive them with the felonious intent of preventing the owner from again possessing itself of its property and for his own gain?\n' Arthur Dietrichstein, who stole the four boxes of electric light sockets, was at the business place of the Great Northern Metal Company when the boxes arrived at that place in charge of the drayman, and was seen in company with the man at that place who ordered the goods to be delivered to the Guarantee Electric Company. The Great Northern Metal Company was a second-hand dealer. The electric light sockets in question were new and in the original and unbroken packages. The retail price of new electric light sockets similar in kind to those delivered by the Great Northern Metal Company to the Guarantee Electric Company were worth at retail, by the box of five hundred, sixteen and one-half cents each. The four boxes, of five hundred electric light sockets each, delivered by the Great Northern Metal Company to the Guarantee Electric Company were sold to the Guarantee Electric Company for ten and one-half cents each. The attorney for the Electric Appliance Company and two police officers called upon the plaintiff in error at the place of business of the Great Northern Metal Company and inquired whether he had sold the Guarantee Electric Company electric light sockets. He said he had, and when inquired of by them as to where he bought them, he said he had purchased them of a man by the name of Hamilton, who lived in St. Louis, Mo. Fie afterwards claimed he had purchased them in part from a Chicago dealer by the name of Meyer, but denied he had'purchased any electric light sockets from Arthur Dietrichstein. \u25a0 The evidence showed, without contradiction, that the Great Northern Metal Company obtained through Arthur Dietrichstein the two thousand sockets which it delivered to the Guarantee Electric Company on November 2. Hamilton was not known to the trade, and the plaintiff in error could not or would not give the name of the firm he represented in St. Louis or his post-office address, and Meyer testified he never sold the plaintiff in error or his corporation any electric light sockets. It is quite evident that the delivery of the four boxes of electric light sockets stolen by Arthur Dietrichstein on the second day of November was caused to be made to the Guarantee Electric Company, with the intent to prevent the Electric Appliance Company from again possessing itself of said boxes of electric light sockets, and it had the effect to deprive said Electric Appliance Company of the permanent possession of two of said boxes, and while the money received for the four boxes was receipted for by the plaintiff in error in the name of the Great Northern Electric Company, by himself as president, he was the president of said company and presumably a stockholder therein, and thus received for his own gain the price, or a part thereof, which was paid to him for said four boxes of electric light sockets by the Guarantee Electric Company. The plaintiff in error introduced no evidence, other than character evidence, to meet the case made by the People against him.\nIn Langford v. People, 134 Ill. 444, the defendant was convicted of breaking into a freight car and stealing certain meat from a crate which he found in the car, and it was contended the evidence was not sufficient to establish his guilt. The court, on page 448, said: \u201cIn addition to finding the meat in the possession of the defendant, grease was found on the sides of the cellar door, where it had been taken down the cellar, and the legs of a pair of pants, recognized as belonging to the defendant, were found to be saturated with grease. The evidence identifying the meat found in the possession of the defendant as the same meat stolen from the car was slight. But that was purely a question of fact for the jury, and we are not prepared to say it was insufficient to authorize the verdict. The defendant did not attempt to show that he owned the meat found in his possession or that it came into his possession honestly, as he doubtless could have done if such had been the fact. Under such circumstances, although the evidence identifying the meat found in defendant\u2019s possession as the same meat taken from the crate may be slight, we are not inclined to disturb the finding of the jury.\u201d And in Gunther v. People, 139 Ill. 526, the defendant was convicted of receiving a stolen watch, and it was contended the evidence was not sufficient to support the conviction. The court, on page 531, said: \u201cCounsel insist that the evidence fails to show that plaintiff in error received the watch from the one who stole it. But it is not indispensable that such evidence shall be direct. That fact may be proved by circumstances. The presumption against the plaintiff in error by reason of the possession of property recently stolen, not satisfactorily explained, is, that he himself stole the property; \u2022 but his declaration that he received it from another may be taken as against him, and in support of the indictment, as sufficient evidence that he received it from the thief, rather than that he stole it himself.\u201d\nIn view of all the evidence in this record we are of the opinion the jury properly found the plaintiff in error guilty.\nIt is next urged that the case should be reversed by reason of the misconduct of the State\u2019s attorney in demanding of the plaintiff in error that he produce the letter sent by Arthur Dietrichstein, by the hand of the drayman, to the Great Northern Metal Company with the first box of electric light sockets, and which the drayman testified he delivered to plaintiff in error. The record upon that subject shows that Henry Ryan, the drayman who delivered the first box of electric light sockets, testified: \u25a0\n\u201cI got that box from the Electric Appliance Company, from Leonard Graham, who was alone. He also gave me a letter,\u2014a sealed envelope addressed to the Great Northern Metal Company.\nQ. \u201cWhat did you do with that letter?\nA. \u201cBrought it over to the Great Northern Metal Company with the box.\nQ. \u201cAnd who did you give it to ?\nA. \u201cRalph Lipsey, the defendant.\nMr. Barbour: \u201cThe State now calls upon the defendant to produce that letter which the witness says he handed to Ralph Lipsey.\nMr- David: \u201cI except to the remark of the State\u2019s attorney.\nThe court: \u201cWhat is your proposition? What is the point ?\nMr. Barbour: \u201cI call on Mr. David to produce......\nThe court: \u201cNo, I ask Mr. David what the point is of the exception.\nMr. David: \u201cI have made my objection. There isn\u2019t any point about it. I insist it is error for the State\u2019s attorney to make that kind of a statement. I am not called upon to make any reply to it.\nMr. Barbour: \u201cBut in the event that Mr. David does not produce it the State will ask the privilege of proving its contents by secondary evidence.\nMr. David: \u201cI except to these remarks and calling upon the defendant to produce anything.\nMr. Barbour: \u201cI am calling on you for the letter.\nMr. David: \u201cWe claim there is no letter or that we got anything from anybody.\nMr. Barbour: \u201cWell, if that is the answer to my request to produce, I take his answer, that is all.\nMr. David: \u201cWell, produce your secondary evidence.\u201d When the plaintiff in error was called upon to produce the letter his attorney said, \u201cI except to the remark of the State\u2019s attorney;\u201d and again, \u201cI except to these remarks and calling upon the defendant to produce anything.\u201d It will be seen the court was not asked by the attorney for the plaintiff in error to rule as to the propriety of the remark of the State\u2019s attorney in calling upon the defendant to produce the letter, and when the court inquired \u00f3f Mr. David the point of his exception, he replied, \u201cThere isn\u2019t any point about it.\u201d The court was therefore not given an opportunity to rule upon the remark of the State\u2019s attorney.\nThe rule in this State is clear and well settled that a party litigant can only complain where he has objected and obtained a ruling and excepted to it, or excepted to the refusal of the court to act. (North Chicago Street Railroad Co. v. Leonard, 167 Ill. 618; City of Salem v. Webster, 192 id. 369.) In the Leonard case, on page 620, the court said: \u201cIt appears from the record that during the argument there was a colloquy between the counsel as to the argument on behalf of the plaintiff, and defendant\u2019s counsel said that he objected, and in some cases he excepted to what was said, but no objection was addressed to the court nor was any action or ruling asked for or obtained. Exceptions can only be taken to some ruling or decision or to action or want of action by the court, and cannot be taken to the conduct of attorneys. Instead of objection, controversy and retort between attorneys, the objection should be made to the court, who should see to it that they do not harangue the jury upon improper subjects. It is the duty of the court to regulate the trial and the argument and conduct of attorneys, to preserve the dignity and decorum of the proceedings, to prevent wrangles between attorneys and to compel obedience to rulings and decisions. There being no action or want of action by the court which is excepted to, there is nothing on that subject to1 be reviewed.\u201d\nAs the court did hot act, and was not asked to act by the attorney for the plaintiff in error, the question of the propriety of the action of the State\u2019s attorney in demanding the said letter is not presented for review upon this record, and there is nothing in the question for review by this court attempted to be raised by the contention of the attorney for plaintiff in error made by his brief and filed in this court.\nIt is further contended that the State\u2019s attorney, in his argument to the jury, called the attention of the jury to the fact that the plaintiff in error had not taken the stand as a witness in his own behalf. The State\u2019s attorney, in his argument, was reviewing the testimony which tended to show that the four boxes of electric light sockets had been stolen by Arthur Dietrichstein and delivered by him to the Great Northern Metal Company and sold by the Great Northern Metal Company to the Guarantee Electric Company, and that the purchase price received therefor had been paid to the plaintiff in error, and in connection therewith he was addressing the jury upon the subject of the interview held between the plaintiff in error and Vose relative to the loss by the Electric Appliance Company of said sockets and the sale thereof by the plaintiff in error to the Guarantee Electric Company. He said: \u201cNow, did this man aid, abet and enco\u00fcrage, not being present ? We have the bargain made over the telephone two or three days before for these goods. That traces prior knowledge to him, and his entire actions in charge of that place show that he was the moving spirit, has knowledge of it all; and I say you have the facts before you to show Dietrichstein, the thief, stealing them, Dietrichstein, the thief, bringing them to Lipsey, and Lipsey selling them. And what does Mr. Lipsey say, gentlemen of the jury, to this charge ? What does he say? What explanation does he make?\u201d Thereupon the following colloquy took place between the State\u2019s attorney, Mr. David, the attorney for the plaintiff in error, and the court:\nMr. David: ' \u201cWait a minute. Your honor, I ask your honor to rule. I object to Mr. State\u2019s attorney\u2019s statement.\nMr. Barbour: \u201cNow, you wait.\nMr. David: \u201cNow, you keep quiet when I am making my objection.\nMr. Barbour: \u201cI know what I am talking about.\nMr. David: \u201cI do not think you do. I ask your honor to rule whether this statement of the counsel is proper.\nMr. Barbour: \u201cYour honor cannot rule until your honor understands what I am saying.\nMr. David: \u201cIt is what you have said,\u2014not what you are going to say.\nMr. Barbour: \u201cNow, I am going to give the explanation that he makes.\nMr. David: \u201cNo\u2014to this, charge. Charge by whom? Charge by whom? I take an exception to the remarks. I ask the court to rule on these remarks of the State\u2019s attorney.\nMr. Barbour: \u201cIf I am within the evidence I have the right to make the remarks.\nMr. David: \u201cI ask the court to rule on these remarks.\nThe court: \u201cIt is not quite clear to me what you refer . to there, Mr. Barbour.\nMr. Barbour: \u201cWhy, of course; because, as has happened before, counsel interrupted me. I am asking: ' \u2018What does he say ? What explanation does he make ?\u2019 And I am now going to tell the jury what he says and what explanation he makes.\nMr. David: \u201cYou said, \u2018to this charge.\u2019\nMr. Barbour: \u201cTo this charge.\nMr. David: \u201cCharges by whom ?\nMr. Barbour: \u201cThis charge by Mr. Vose, that electric light sockets have been stolen from the Electric Appliance Company and that Lipsey has sold electric light sockets to the Guarantee Electric Company.\nMr. David: \u201cThat is what you mean?\nMr. Barbour: \u201cYes, that is what I mean, and you knew it, too.\nMr. David: \u201cWell, I didn\u2019t know it, and I know it is not true. I do not believe it is so and I do not believe you believe it is so.\nMr..Barbour: \u201cWhat did you think I meant?\nMr. David: \u201cNever mind what I think. I know the tricks of the assistant State\u2019s attorneys in trying to violate the law. I take an exception, just the same, to the remark.\u201d\nIt will again be observed that Mr. David said: \u201cI ask your honor to rule. I object to Mr. State\u2019s attorney\u2019s statement;\u201d again, \u201cI ask your honor to rule whether this statement of the counsel is proper;\u201d again, \u201cI ask the court to rule on these remarks of the State\u2019s attorney;\u201d again, \u201cI ask the court to rule on these remarks;\u201d and again, \u201cI take an exception, just the same, to the remark.\u201d It is clear that Mr. David did not except to any ruling of the court or to the action of the court in refusing to rule, and that the question sought to be raised as to the impropriety of the remarks of the State\u2019s attorney was not, under the rule as heretofore stated, requiring the party objecting to except to the ruling of the court or to his refusal to rule, preserved for review in this court.\u201d If, however, the question had been preserved for 'review in this court, we think the remarks of the State\u2019s attorney were harmless and were not made with the intention of calling the attention of the jury to the fact that the plaintiff in error did not testify as a witness in the case; but if they were not harmless and if they were made with an ulterior purpose we think the error was cured by the action of the attorney of the plaintiff in error, as later in the argument he called the attention of the jury to the fact that his client did not .testify in his own behalf as a witness during the trial.\nIn the argument of the case Mr. David had read from the opinion in Cohn v. People, 197 Ill. 482, and upon the State\u2019s attorney attempting to read from the same opinion Mr. David interrupted him, and stated to the court, in the presence of the jury: \u201cIf your honor please, I specifically read that case with reference to instruction to the jury as to what constitutes guilty knowledge, and that does not give him any right to read the whole case by reason of the fact in that case the defendant testified, because it had nothing to do with these instructions. * * * Therefore that does not give him the right to read any part of the case to show to the jury that in that case the defendant testified unless it was by reason of something that I said, and I guarded against it by specifically telling the jury that I read this case on this point only. * * * The Supreme Court specifically says you haven\u2019t any right to call attention to any decision or any other case that the defendant did not testify, because that is simply another v^y of evading the statute.\u201d\nA party litigant cannot ask that a case be reversed for error of which error he is guilty himself. We think, however, no wrong was done the plaintiff in error by the remarks of the State\u2019s attorney above set out. By refusing to testify a defendant cannot prevent the State\u2019s attorney from commenting upon the evidence and pointing out to the jury the legitimate conclusions to be drawn therefrom. Mr. Vose and two police officers had gone to the place of business of the Great Northern Metal Company, and in a conversation with the plaintiff in error had stated to him that several thousand electric light sockets had been stolen from the Electric Appliance Company by Arthur Dietrich-stein, and that several boxes of these electric light sockets had been delivered to the Great Northern Metal Company and had been sold by the Great Northern Metal Company, arid called upon the plaintiff in error for an explanation, and in view of his explanation we think the State\u2019s attorney was justified in saying to the jury:. \u201cWhat explanation does he make? What does Mr. Lipsey say, gentlemen of the jury, to this charge?\u201d And think he had a right to say to the jury: \u201cWhy, he says, T don\u2019t know Arthur Dietrich7 stein, and I never got the things from Arthur Dietrichstein;\u2019 and he goes on: \u2018These clean-looking new sockets that I got were second-hand goods that came from St. Louis, from a man named William Hamilton, whose address I don\u2019t know, and, I think, the United States Fixture Company, whose address I don\u2019t know, and I cannot show you on my books where I made a single purchase.\u2019 That is the answer that Ralph Lipsey makes to this charge, gentlemen of the jury. That answer is false, and by his answer to the charge he shall be judged.\u201d When, the statement of the State\u2019s attorney is taken as a whole, it is apparent he was not referring to the fact the plaintiff in error had failed to testify as a witness, but to the answer he made to the charge made against him by Vpse in the presence of the police officers.\nIn Bradshaw v. People, 153 Ill. 156, the State\u2019s attorney said, \u201cThe enticing and taking away of the prosecuting witness is not denied by the defendant.\u201d The court, on page 162, said: \u201cWe do not * * * regard the statement as an indication of misconduct on the part of counsel or an attempt to evade the statute to the prejudice of the defend-' ant. Counsel may properly, for the purposes of argument to the jury, state what facts he understands not to be denied, and the remarks here objected to might fairly have been intended to do nothing more.\u201d\nIn Watt v. People, 126 Ill. 9, in discussing the question now under consideration, the court, on page 31, said: \u201cIndirect and covert references to the neglect of the defendant to go upon the witness stand may be as prejudicial to his rights as a direct comment upon such neglect. But it does not necessarily follow that every reference to the law on that subject is prohibited. The true test would seem to' be, was the reference intended or calculated to direct the attention of the jury to defendant\u2019s neglect to avail himself of his legal right to testify? In the present case we may fairly assume that such was not the intention of counsel. He was engaged in discussing, in apparent good faith, an entirely different proposition, and his incidental reference to the legal right of a defendant to testify in his own behalf was obviously made only by way of illustrating that topic. Nor are we able to see that the remark, in the connection in which it was made, was calculated to direct the attention of the jury to the defendants\u2019 neglect to testify. Such neglect was not spoken of, and the reference to their right to testify was in a discussion in which the attention of the jury was being directed to an entirely different topic. But if the allusion to the defendants\u2019 legal right to testify was otherwise improper, it is difficult to see how it could have prejudiced the defendants after the statement by their own counsel to the jury that one of them had in fact exercised that right.\u201d\nThe contention is also made that the court erred in permitting the witness Graham to state that Arthur Dietrich-stein said to him to telephone for the drayman and send said boxes of electric light sockets to the Great Northern Metal Company, and after they were delivered Dietrichstein paid to him $11, as, it is said, the plaintiff in error was not present at the time the orders were given to Graham by Dietrichstein and the money paid to Graham. What was said by Arthur Dietrichstein to Leonard Graham was not an admission or confession that the goods were stolen, but tended to characterize the transaction, and the payment of the money to Graham by Dietrichstein tended to establish the larceny of the boxes containing the electric light sockets, and we .think was entirely proper.\nIt is also said the court erred in admitting proof of the delivery of the first box of electric light sockets and its receipt, with the letter from Arthur Dietrichstein, by the plaintiff in error. The State\u2019s attorney elected to prosecute only for the four boxes of electric light sockets delivered on November 2, and on his motion all the evidence with reference to the first box, and the letter accompanying the same, was stricken out of the record. This eliminated that evidence from the case. We think, however, such motion was unnecessary, as the evidence was competent to prove guilty knowledge on the part of the plaintiff. Copperman v. People, 56 N. Y. 591; 2 Bishop on Crim. Proc.\u20143d. ed.\u2014 sec. 990, where, under the title \u201cReceiving Stolen Goods,\u201d it - is said: \u201cOther receivings may, as evidence of guilty knowledge, be shown against the defendant, within the rules familiar in this class of questions.\u201d\nOther objections are made to the admission of evidence, but the same are extremely technical and without force.\nTwenty instructions were given on behalf of the People and thirty were offered on behalf of the plaintiff in error, twenty-five of which were given. The plaintiff in error has made numerous objections to several instructions given on behalf of the People and complains of the failure of the court to give one instruction offered by him. We have gone through the mass of instructions given and refused in this case and think they state the law of the case correctly when considered as a whole and as a series, and that the jury were properly instructed as to the law of the case.\nIt is urged by the plaintiff in error the first instruction given on behalf of the People assumes, that the electric light sockets were offered to the plaintiff in error and that he received the same. While that instruction is somewhat involved, we do not think it subject to the criticism made upon it.\nIt is also urged that the People\u2019s eighth given instruction was so framed as to mislead the jury. That instruction was upon the subject of circumstantial evidence, and was in substantially the form in which instructions upon that subject are usually given.\nIt is also urged that the eleventh instruction given on behalf of the People was likely to mislead the jury in this: that it commented upon the weight of the evidence. It informed the jury that the testimony- of one credible witness, if uncontradicted and the jury believed his testimony, was sufficient proof of the facts to which he testified, for the purposes of the trial. We think the instruction contained a correct statement of the law.\nThe ninth instruction, defining what constitutes an accessory before the fact, was abstract in form. We do not think, however, it misled the jury.\nThe People\u2019s, third instruction informed the jury that the body of the crime might be established by circumstantial evidence. Such has been held to be the law in Campbell v. People, 159 Ill. 9.\nPlaintiff in error\u2019s refused instruction was as to the weight to be given to verbal admissions made out of court, and the jury were sought to be instructed thereby that such admissions should be received with great caution,\u2014which is true unless they are deliberately made and fully proven, when such evidence is of a most satisfactory character. (Marzen v. People, 173 Ill. 43.) The instruction was properly refused for want of such limitation.\nThe court permitted the State\u2019s attorney to call the witness Vose after the State had closed its case and a motion to take the case from the jury had been argued and overruled. The State\u2019s attorney, in his opening statement, stated Vose would be called as a witness. Later on he decided not to call him in chief, but after the motion for a peremptory instruction had been disposed of he asked leave of the court to call and examine him as a witness. The plaintiff in error was not surprised by the calling of Vose, as he had been informed by the State\u2019s attorney he would be examined as a witness, and it rested in the sound discretion of the trial court to allow him to be called and examined at the time he was called and examined.\nFinding no reversible error in this record the judgment of the criminal court of Cook county will be affirmed.\nJ udgmen t, affirmed.", "type": "majority", "author": "Mr. Justice Hand" } ], "attorneys": [ "Joseph B. David, and Edward Sonnenschein, for plaintiff in error.", "W. H. Stead, Attorney General, and John J. Healy, State\u2019s Attorney, (James J. Barbour, of counsel,) for the People." ], "corrections": "", "head_matter": "Ralph Lipsey v. The People of the State of Illinois.\nOpinion filed April 18, 1907\nRehearing denied June 5, 1907.\n1. Criminal law\u2014proof that accused knew property was stolen may be circumstantial. In a prosecution for receiving stolen property, the fact that the accused knew the same had been stolen may he proved by circumstantial evidence, since even the body of a crime may be so proved.\n2. Same\u2014what evidence sustains conviction for receiving stolen property. Proof that the accused, who was president of a corporation dealing in second-hand goods, arranged by telephone for the sale of new goods, which were afterwards brought to his place of business arid sent from there to the customer; that the bill therefor was' rendered by the accused through the corporation and paid by the customer; \u2022 that the person who stole the goods was at the accused\u2019s place of business when the goods were brought, there; that the accused denied that he received them from such person and claimed he received them from another whose address he would not give, and that no' entry of the transaction was made on the books, tends to show that-he received the property knowing it was stolen.\n3. Same\u2014party must obtain ruling on improper remarks. The accused cannot complain, upon appeal, of improper remarks of the prosecuting attorney unless he has objected and obtained a ruling, or the court has refused to rule and the party excepts to the action of the court.\n4. Same\u2014what does not preserve the question for review. Remarks by counsel for the accused during a colloquy with the State\u2019s attorney, such as, \u201cI ask your honor to rule; I object to Mr. State\u2019s-attorney\u2019s statement;\u201d \u2018T ask your honor to rule whether this statement of counsel is proper;\u201d \"I take exception, just the same, to the remark;\u201d\u2014do not preserve the question of the propriety of the State\u2019s attorney\u2019s statements for review where the court did not make any ruling nor refuse to do so.\n5. Same\u2014what remark does not call attention of jury to the fact that accused did not testify. The remark by the assistant State\u2019s attorney to the jury, after summing up the facts in evidence in a prosecution for receiving stolen property, \u201cWhat does he say? What explanation does he make ?\u201d does not call the attention of the jury to the fact that the accused did not testify in his own behalf, where it is -apparent from the remainder of his statement that he referred to the statements of the accused in the presence of the officers when charged with the offense.\n6. Same\u2014refusal of accused to testify does Hot preclude comment on the evidence. The fact that one accused of crime does not testify does not preclude the State\u2019s attorney from commenting upon the evidence and pointing out to the jury the legitimate conclusions to he drawn therefrom.\n7. Evidence\u2014what evidence is competent in a prosecution for receiving stolen property. In a prosecution for receiving stolen property, testimony by the boy who delivered the goods from the possession of the true owner, that he was told by a third party to telephone for a drayman and send the goods to the accused, and that after they were delivered such third party pfiid him a certain sum as his share, is properly admitted, as tending to characterize the transaction and as tending to establish the larceny of- the goods.\n8. Same\u2014a former transaction may be proven to show guilty knowledge. In a prosecution for receiving stolen property, proof that the accused on a former occasion received some of the same goods through the same channel is competent as tending io show guilty knowledge.\n9. Same\u2014force of verbal admissions of accused. Verbal- admissions of the accused, if deliberately made and fully proven, are satisfactory evidence, otherwise they are to be received with great caution.\n10.. ..Instructions\u2014when instruction does not comment on weight of evidence. An instruction informing the jury that the testimony of one credible witness, if uncontradicted and believed by the jury, is sufficient proof of the facts to which he testified, for the purposes of the trial, is not misleading, as commenting upon the weight of the evidence.\n11. Trial\u2014order of calling witnesses rests in discretion of the court. Where the State\u2019s attorney, in his opening statement, states that he will call a certain party as a witness but decides not to call him in chief, it is within the discretion of the trial court to allow the witness to be called after the motion for a peremptory instruction has been disposed of.\nWrit or Error to the Criminal Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.\nJoseph B. David, and Edward Sonnenschein, for plaintiff in error.\nW. H. Stead, Attorney General, and John J. Healy, State\u2019s Attorney, (James J. Barbour, of counsel,) for the People." }, "file_name": "0364-01", "first_page_order": 364, "last_page_order": 381 }