{ "id": 2673062, "name": "John G. Kibs v. The People of the State of Illinois", "name_abbreviation": "Kibs v. People", "decision_date": "1876-01", "docket_number": "", "first_page": "599", "last_page": "602", "citations": [ { "type": "official", "cite": "81 Ill. 599" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "17 Ill. 339", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2590929 ], "weight": 2, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill/17/0339-01" ] }, { "cite": "5 Denio, 76", "category": "reporters:state", "reporter": "Denio", "case_ids": [ 1881447 ], "opinion_index": 0, "case_paths": [ "/denio/5/0076-01" ] }, { "cite": "8 Metc. 247", "category": "reporters:state", "reporter": "Metc.", "opinion_index": 0 }, { "cite": "6 Gray, 15", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 1994698 ], "opinion_index": 0, "case_paths": [ "/mass/72/0015-01" ] }, { "cite": "8 Cal. 42", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2257398 ], "opinion_index": 0, "case_paths": [ "/cal/8/0042-01" ] }, { "cite": "9 Metc. 13", "category": "reporters:state", "reporter": "Metc.", "opinion_index": 0 } ], "analysis": { "cardinality": 365, "char_count": 5661, "ocr_confidence": 0.56, "pagerank": { "raw": 6.303914282333968e-07, "percentile": 0.9582647482536627 }, "sha256": "f2c036f0a65c2ca21ae2be9baef7ffc5f69ded53a5bf6d09c604382aa7d2566c", "simhash": "1:feef0c6447baa2dc", "word_count": 963 }, "last_updated": "2023-07-14T17:06:43.418924+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John G. Kibs v. The People of the State of Illinois" ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nIt is not claimed by the State that the defendant is otherwise guilty than under the 74th section of the Criminal Code, entitled \u201cEmbezzlement,\u201d which is as follows: \u201cWhoever embezzles or fraudulently converts to his own use, or secretes, with intent to embezzle or fraudulently convert to his own use, money, goods or property delivered to him, which may be the subject of larceny, or any part thereof, shall be deemed guilty of larceny.\u201d\nThe indictment is for larceny, simply, as at common law.\nThe uniform construction of similar acts, both in this country and in England, is, \u201cthat the indictment must set out the acts of embezzlement, and then aver that so the defendant committed the larceny.\u201d 2 Bishop\u2019s Criminal Procedure, \u00a7 281; 2 Wharton\u2019s Criminal Law, (7th ed.) \u00a7 1940; 1 Chi tty\u2019s Criminal Law, (ed. of 1841) 281, 282, 283 ; 3 Waterman\u2019s Archbold on Practice, Pleading and Evidence in Criminal Cases, p. 446, 1, 2, 3, 4, 5, 6, and notes.\nThe defendant\u2019s fiduciary character, which is the distinguishing feature between embezzlement and larceny, must be specially averred. Com. v. Simpson, 9 Metc. 13; People v. Cohen, 8 Cal. 42; Com. v. Smart, 6 Gray, 15; Com. v. Wyman, 8 Metc. 247; Com. v. Merrifield, 4 id. 468; People v. Tyron, 4 Michigan, 665; People v. Allen, 5 Denio, 76; Rex v. Johnson, 3 M. and S. 539; Rex v. Creighton, Russ, and Ry. 62. And this rule, instead of being changed, is expressly recognized by \u00a7 82 of the Criminal Code (B. L. 1874, p. 364,) which provides that, in indictments in cases under the statute relating to embezzlements, \u201cit shall be sufficient to allege generally in the indictment an embezzlement, fraudulent conversion, or taking with such intent, of funds of such person, bank, incorporated company,\u201d etc., \u201cto a certain value or amount, without specifying any particulars of such embezzlement.\u201d\nWe are referred, however, by the Attorney General, to Welsh v. The People, 17 Ill. 339, and Stinson et al. v. The People, 43 id. 397, as settling the law in this State, that evidence of an embezzlement will authorize a conviction for larceny.\nThis is a misapprehension as to the effect of what was decided in those cases.\nThe convictions there were for larcenies, as at common law, and no question was raised or discussed under the statute relating to embezzlements, and it was held, in both cases, the evidence authorized the jury in finding that the defendant, in obtaining possession of the property, in the first instance, did so with a felonious intent. The distinction between larceny and obtaining goods under false pretenses was the turning point in each case, and it was thus pointed out in Stinson\u2019s case: \u201c 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; 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 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, if the goods were obtained with that intent.\u201d\nBut the section of the Criminal Code quoted, relates to a class of cases which were not larceny at common law. It is said by eminent writers on criminal law, that the statutes in relation to embezzlement \u201cwere passed solely and exclusively to provide for cases which larceny at common law did not include. Hence nothing that was larceny at common law is larceny under the embezzlement statutes; and nothing that is larceny under the embezzlement statutes is larceny at common law.\u201d 2 Wharton\u2019s Criminal Law (7tli ed.) 1905.\nHere, the defendant sold a town or city lot for the prosecutor, and under his instructions, previously given, it wTas defendant\u2019s duty to loan the money at interest, on good security, for the prosecutor; but, instead of complying with these instructions, he lost the money at gaming. The prosecutor never had the money in his possession at any time, and, therefore. at common law the offense could not have been larceny. 2 Wharton\u2019s Criminal Law, (7th ed.) \u00a7\u00a7 1830, a (p) 1846, b. (g.)\nThe evidence not being sufficient to sustain the conviction for larceny, the judgment must be reversed.\nJudgment reversed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Mr. J. F. Farnsworth, and Mr. B. F. Parks, for the plaintiff in error.", "Mr. James K. Edsall, Attorney General, for the People." ], "corrections": "", "head_matter": "John G. Kibs v. The People of the State of Illinois\n1. Indictment\u2014embezzlement. Where a statute makes embezzlement larceny the indictment must set out the acts of embezzlement, and then aver that so the defendant committed larceny. The defendant\u2019s fiduciary character, which is the distinguishing feature between embezzlement and larceny, must be specially averred.\n2. Same\u2014larceny. Under an indictment simply charging larceny, the defendant can not be convicted of embezzling or fraudulently converting the money of another, which was never in the owner\u2019s possession, as, when the defendant sold a lot for another, and instead of putting the money at interest, on good security, as directed, lost the same at gaming.\nWrit of Error to the Circuit Court of Kane county; the Hon. Hiram H. Cody, Judge, presiding.\nThis was an indictment against John G. Kibs, for larceny, as at common law. The defendant was convicted, and sentenced to the penitentiary for two years.\nMr. J. F. Farnsworth, and Mr. B. F. Parks, for the plaintiff in error.\nMr. James K. Edsall, Attorney General, for the People." }, "file_name": "0599-01", "first_page_order": 599, "last_page_order": 602 }