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erroneous

with a knowledge of the facts. Such an es-structing the jury as to the meaning of contoppel is founded upon equitable considera- structive possession, was erroneous. tions for the promotion of justice. 10 R. C. L.

[Ed. Note. For other cases, see Criminal 694. If plaintiff in error voluntarily accept- Law, Cent. Dig. § 1808; Dec. Dig. Ow800(1).] ed $6,000 with full knowledge of the facts, 6. CRIMINAL LAW O813–INSTRUCTIONS

APPLICABILITY TO CASE.. it would be contrary to justice and uncon

It being alleged that the property had not scionable to permit him to set aside the de- been in possession of person named in indictcree, but without such knowledge his act ment an instruction that the ownership of propcould not work an estoppel.

Halloran v. erty, if the property had been bailed, might be Halloran, 137 111. 100, 27 N. E. 82.

laid in the bailor or the bailee, and if laid in

the bailor and the proof showed without reasonThe first and second pleas failed to aver able doubt that it was taken from the bailee, knowledge of the facts, and the demurrer to the proof supported the allegation in the indictthem is sustained.

ment that it was the property of the bailor, was

as not only abstract in form but Demurrer sustained.

senseless and unmeaning to the jury.

[Ed. Note.-For other cases, see Criminal

Law, Cent. Dig. 8 1979; Dec. Dig. Om 813.) (275 III, 402)

Cooke and Farmer, JJ., dissent. PEOPLE v. CSONTOS et al. (No. 10768.) Error to Criminal Court, Cook County; (Supreme Court of Illinois. Oct. 24, 1916. Joseph H. Fitch, Judge. Rehearing Denied Dec. 7, 1916.)

Mary Csontos was convicted of larceny,

and Aladar Ponta convicted of receiving 1 LARCENY Cm 40(9)—INDICTMENT AND PROOF: stolen property, and each brings error.

Re Larceny being an offense against the owner of property, the owner is so affected by the versed and remanded. crime that his name becomes material to a statement of the offense in an indictment, if known,

Edward N. Sherburne, of Chicago, for and an essential element must be proved as al- plaintiffs in error. P. J. Lucey, Atty. Gen., leged.

Maclay Hoyne, State's Atty., of Chicago, and [Ed. Note.-For other cases, see Larceny, G. P. Ramsey and D. E. Detrich, both of Cent. Dig. 88 120, 121, 123, 124; Dec. Dig. 40(9).]

Springfield (Marvin E. Barnbart and Ed

ward E. Wilson, both of Chicago, of coun2. GIFTS OmtGIFTS INTER Vivos - ESSEN

sel), for the People. TIAL,

It is essential to a gift inter vivos that it should be absolute and irrevocable to go into effect at once and not at some future time, and

CARTWRIGHT, J. An indictment conthat there be a delivery of the thing given to taining two counts was returned into the the donee, and such change of possession as to criminal court of Cook county against the put it out of the power of the giver to repossess plaintiffs in error, Mary Csontos and Aladar himself of the thing given. [Ed. Note.-For other cases, see Gifts, Cent.

Ponta. The first count charged them with Dig. $$ 3, 17; Dec. Dig. 4.]

larceny of a ring of the value of $800, the 3. LARCENY 12

property of Howard H, Hammond, and the TAKING CUSTODY OF PROPERTY.

second, alleging the same ownership, charged There can be no larceny without a trespass, them with receiving the ring, knowing the and no trespass unless the property was in the same to have been stolen. The defendants possession of the person from whom it is charg- entered separate pleas of not guilty, and uped to have been stolen. [Ed. Note.—For other cases, see Larceny,

on a trial the jury returned two verdicts, Cent. Dig. $8 22–29; Dec. Dig. 12.] one finding the defendant Mary Csontos guil4. LARCENY 16-TAKING-PROPERTY LOST

ty of larceny and finding the value of the OR MISLAID.

property to be $375, and the other finding All property not abandoned being in law the defendant Aladar Ponta guilty of receivregarded as in the possession of some person and ing stolen property of the value of $375, and the possession of a lost article being regarded in each verdict recommending the defendas that of the previous legal owner until taken into actual possession of finder, if a finder of ants to the mercy of the court. Motions for property intends to steal it, knows who the a new trial and in arrest of judgment were owner is, or has a reasonable clue to the own- made and denied, and judgments were ener, the taking becomes felonious, and he is guilty of larceny; but if the finder has no clue to the tered on the verdicts. The record has been ownership, there is no larceny, although he brought to this court by a writ of error. takes the goods and converts it to his own use. The following facts were proved and not

[Ed._Note.-For other cases, see Larceny, controverted: The defendant Mary Csontos Cent. Dig. 8$ 43-45; Dec. Dig. Om 16.]

came to this country from Austria in Octo5. CRIMINAL LAW Ow800(1)-INSTRUCTIONS ber, 1912, having at that time no knowledge

DEFINITION OF TERMS LARCENY Con of the English language. Two days after
STRUCTIVE POSSESSION.
Where it appeared that the accused found a

her arrival she was employed by Mrs. Hendiamond ring without any identifying mark, and ry H. McKay at 7204 Sheridan road, Chithat she had no idea who the owner was or that cago, and continued in that employment, dothe ring was of any value, the action of the ing all the housework, until February, 1915. court in modifying instructions touching possession of the ring by making the requirement In April, 1914, Mrs. Shayne, a sister of Mrs. "actual or constructive" possession without in- | McKay, was living with her and lost a dia

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

mond ring. Mary Csontos was told that a was never locked; that she never wore & ring had been lost, and Mrs. Shayne and ring on week' days, but wore this ring when Mrs. McKay remembered that it was worn she went out on Sundays; that she thought at a luncheon at a restaurant and thought it was glass and did not know it had any it might have been left at a party room at value; that she gave the ring to Aladar Ponthe La Salle Hotel, where there was a par- ta in March, 1915, and told him she had ty after the luncheon at the restaurant. found it and asked him if it was a diamond About three weeks after the ring was lost or glass; that he said he was going to try it, Mary Csontos found it in the front yard at and found out that it was a diamond and the house, which was on the corner of Ken- sold it. Aladar Ponta, who was accustomed ilworth avenue and Sheridan road. She to play for dances, testified that he had nokept the ring and was wearing it in April, ticed the ring on the finger of Mary Csontos, 1915, at a dance where the defendant Alad- and asked her what kind of a ring it was, ar Ponta, a musician, was playing. He had but she said it was nothing of value-glass, noticed the ring at dances where he had or something like that-and that he pro played and he then asked her what kind of posed to find out, and she gave him the ring, a ring it was. She told him that she had and he sold it. With regard to her opinion found the ring around the porch in the yard of the value of the ring, it should be remem. where she was working and she did not bered that, while platinum is of great value, think it was a diamond. She gave it to him it looks like a very cheap metal, and she to find out if it was of any value, and he was an ignorant servant girl. took it to a jeweler, who took the stone out (1-2] Larceny is an offense against the ownof the setting and pronounced it a diamond er of property, and the name of the party inand gave Ponta $375 for it, of which sum Pon- jured by the larceny must be stated, if ta gave Mary Csontos $150. Howard H. Ham- known. The owner is so affected by the mond was a minor son of Mrs. Shayne, who crime that his name becomes material to a lived with his father, her divorced husband, statement of the offense in an indictment, and she had been married again. He testi- and the ownership, being an essential elefied that his mother gave him the diamond, ment, must be proved as alleged. Willis v. which was set in a ring, and delivered the People, 1 Scam. 399; Aldrich v. People, 225 ring to him, but decided that he was not Ill. 610, 80 N. E. 320. The ring, which was able to take care of it, and so she had the charged in the first count to have been stolen diamond reset in a small platinum ring so by the defendants and which in the second that she could wear it, and that while the count was charged to have been received by diamond was his property he was not going them knowing that it had been stolen, was to get it until he arrived at manhood. Mrs. alleged to be the property of Howard H. McKay testified that her sister gave the Hammond, and there was not only a failure stone to her son, Howard H. Hammond, and to prove the ownership as alleged, but the gave him possession for a while, and then evidence for the people proved the contrary. changed her mind and thought she had bet. The ring was owned by Mrs. Shayne, and if ter not let him have it until he got older, there had been any gift to her son, Howard and he returned it and she had the diamond H. Hammond, it would have been a gift inreset in a ring for herself, and that the setter vivos. It is essential to such a gift that ting belonged to Mrs. Shayne and not to How- it be absolute and irrevocable; that the giver ard H. Hammond, but the stone belonged to part with all present and future dominion him. Besides these undisputed facts there was over the property given; that the gift go testimony of a detective that he had a talk into effect at once and not at some future with Mary Csontos indicating that she knew time; that there be a delivery of the thing the ring belonged to Mrs. Shayne, but she given to the donee; and that there be such denied that she made any such statement. a change of possession as to put it out of the There was also evidence of a detective of a power of the giver to repossess himself of conversation with Aladar Ponta which did the thing given. Telford v. Patton, 144 Ill. not tend to prove anything.

611, 33 N. E. 1119; Williams v. Chamberlain, Mary Csontos testified to her coming from 165 Ill. 210, 46 N. E. 250. The evidence was Austria in October, 1912, and her employ- that Mrs. Shayne proposed to give to her son ment by Mrs. McKay; that she never owned a ring in which the diamond was set, and dea diamond and did not know anything about livered it to him, but changed her mind and platinum; that when she was cleaning on took it back with his consent, with a declared the front porch she was shaking a rug and intention of giving it to him when he was the rug fell on the ground; that she went older and could appreciate its value. The for the rug and found the ring; that Mrs. gift was at no time irrevocable, since the Shayne had told her she had lost a diamond son conceded the right of his mother to take ring downtown and thought she lost it in the ring back, and she not only took it back washing her hands in Marshall Field's store; but had the diamond reset in a platinum that any one could walk across the corner of ring for herself. Howard H. Hammond nev. the lot where she found the ring; that she er had possession of the ring alleged to have

tive claim to it. What became of the ring of which he disregards, he is guilty of larceny. which he once bad possession did not appear, There was no identifying mark on the ring, but the diamond was taken from it and set and Mary Csontos testified that she had no in another platinum ring by his mother. idea who the owner was, or that the ring was Mrs. McKay testified that the ring belonged of any value, but had been told by her friends to her sister, and did not belong to Howard that it was a 50-cent ring. The court erred H. Hammond, but the diamond belonged in modifying the instructions and leaving it to him. There was no evidence that Howard to the jury to find out what was construcH. Hammond owned the ring.

tive possession in the law. The facts which [3-5] The utility of instrụctions to juries constitute constructive possession in conse is to advise them concerning the rules of law quence of a rule of law different from the applicable to the facts of each case, and their essential nature of possession as commonly efficiency depends upon the ability of the jury understood should have been explained if the to make such application. The instructions jury were to be advised on that subject. given at the instance of the people in this [6] In an instruction given at the request case were all abstract in form and had no of the people the court hold the jury that natural connection with the evidence. They the ownership of property, if the property consisted mainly of the statutes relating to had been bailed, might be laid in the bailor the crime of larceny, and as a series were in or the bailee, and if the ownership was laid no way adapted to the case. The defend in the ballor and the proof showed without ants asked the court to give an instruction, reasonable doubt that it was taken from the numbered 10, that it was incumbent upon bailee, the proof supported the allegation in the prosecution to prove that the ring alleged the indictment that it was the property of to have been stolen was in the possession of the bailor. The instruction was not only Howard H. Hammond at the time of the al- abstract in form, but to the jury was senseleged larceny, and the court modified it so as less and unmeaning. If the instructions as to state that the prosecution was required to to constructive possession and bailments were prove that the ring was in the possession, ac- regarded at all they could only mislead the tual or constructive, of Howard H. Ham. jury. mond. An instruction numbered 11 tendered The judgments are reversed, and the cause by the defendants, stated as a rule of law remanded. that there could be no larceny without a tres

Reversed and remanded. pass, and there could be no trespass unless the property was in the possession of the

COOKE and FARMER, JJ., dissenting. person from whom it was charged to have been stolen, and that is the rule of law.

(275 III. 346) People v. Hoban, 240 Ill. 303, 88 N. E. 806, 22

KEHL v. TAYLOR et al. (No. 10655.) L. R. A. (N. S.) 1132, 16 Ann. Cas. 226. The (Supreme Court of Illinois. Oct. 24, 1916. court modified the instruction so as to state

Rehearing Denied Dec. 7, 1916.) that there could be no larceny without a WILLS @ww552(4)-DEVISE TO DECEASED CHILD trespass, and no trespass unless the property -RIGHTS OF DEVISEE'S CHILDREN. was either actually or constructively in the

Statute of Descent (Hurd's Rev. St. 1915possession of the one from whom it was isee, being a child or grandchild of testator;

16, c. 39) 8 11, providing that whenever a devcharged to have been stolen. There may be shall die before testator, and no provision shall a larceny of property which has been lost, be made for such contingency, the issue of such provided there is an intent of the finder to devisee shall take the devise, applies to a steal it, so that the taking becomes felonious. the making of the will; so that a daughter of

devisee dying, to testator's knowledge, before All personal property not abandoned is by testator having died before the will was made, construction of law regarded as in the pos- leaving, as issue a daughter, and testator having session of some person, and the law regards such granddaughter by name, and devised, the

made devises to his living daughters and to the possession of an article which is lost as remainder in other lands to my children,” the being that of the legal owner who was pre granddaughter took her mother's share in the viously in possession, until the article is devised remainder. taken into the actual possession of the finder. Dig. § 1195; Dec. Dig. Ow552(4).]

(Ed. Note.-For other cases, see Wills, Cent. But jurors are not learned in the law, and the court should never instruct them in legal

Appeal from Circuit Court, Mason Counphrases not understood by a layman, by ty; Guy R. Williams, Judge. which they would be confused and misled.

Suit by Hannah A. Kehl against Cynthia If the finder does not know who the owner R. B. Taylor and another. From an adverse is and there is no clue to the ownership, decree, defendant Nancy Belle Leinweber apthere is no larceny, although the finder takes peals. Reversed and remanded. the goods for himself and converts them to Lyman Lacey, Jr., of Havana, for appelhis own use. Tyler v. People, Breese, 293, lant. W. A. Covey, of Lincoln, for appellee. 12 Am. Dec. 176; Lane v. People, 5 Gilman, 305. If the finder knows who the owner is CRAIG, C. J. Appellee filed her bill for or has a reasonable clue to the ownership, partition in the circuit court of Mason coun

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ty, alleging, among other things, that she and , descent, while appellee contends the provi. her sister, Cynthia R. B. Taylor, who was sions of that section have no application to made a defendant to the bill, were the owners a case in which the death of the child ocof lot 5 and the east half of lots 6 and 7, in curred prior to the making of the will and block 18, in the city of Mason City, in that was known to the testator at the time the county, as tenants in common in equal parts will was made, and that in any event, taking by reason of the third clause of the will of the will as a whole, it is clear the testator William M. Miller, father of the complain- did not intend to include his grandchild as ant and the defendant Cynthia R. B. Taylor; one of his "children," as that word is used that an uncertainty existed as to the mean- in the third clause of his will. ing of the words “my children," occurring By the first clause of his will the testator in that clause; that Nancy Belle Leinweber, directed that his widow pay all his debts a granddaughter of the said William M. Mil- out of his personal estate which he bequeathler, claimed an interest in the property under ed to her. By the second clause he gave to said clause; that such claim created a cloud his wife, in case she survived him, 80 acres on the title; and praying for the removal of of land in Mason county for life, remainder said cloud and partition between the com- Jat her death to his grandchild, Nancy Belle plainant and the defendant Cynthia R. B. Walton (now Nancy Belle Leinweber), for Taylor. Nancy Belle Leinweber answered, life, with remainder to her children in fee, claiming that upon a proper construction of with the provision that should she die leavthe will of William M. Miller she is the own- ing no child, children, or descendants of a er in fee of an undivided one-third of the child or children, the land should descend premises in controversy. Cynthia R. B. Tay- to his heirs at law in fee simple absolute, lor was defaulted. The complainant replied and, in case his widow should die before to the answer of Nancy Belle Leinweber, and the said grandchild arrived at the age of the cause was referred to the master in chan- 21 years, the real estate devised to the latcery to take the proofs. The master took and ter was to be committed to the care of some reported the evidence, and the court rendered competent person, other than her father, a decree in accordance with the prayer of until the grandchild attained such age. The the bill, which finds that the complainant, third clause is as follows: Hannah A. Kehl, and the defendant Cynthia "Third. I give, devise and bequeath unto my R. B. Taylor, were the owners of the prop-east half of 'lots 6 and 7, in block No. 18, in

beloved wife, Nancy J. Miller, lot 5 and the erty in controversy and decrees partition be the original town or plat of the city of Mason tween them, and further decrees that the City, in Mason county, state of Illinois, for defendant Nancy Belle Leinweber had no in- and during her natural life and at her death terest in said property. Said defendant has and share alike. I also give unto my wife all

to my children in fee simple absolutely, share appealed, and assigns as error the action of my personal property of every description, notes, the court in entering a decree in favor of bonds, due bill, accounts and debts due and ow. appellee.

ing to me and all moneys of which I may die It appears from the evidence taken in the real estate for the first two years after my death,

seised or possessed; also the rents of all my cause that William M. Miller died testate which I make a charge on my said real estate, March 16, 1894, seised and possessed of the the said rents to be fixed by agreement between above-described real estate and of certain my widow and the devisees mentioned herein.” other property mentioned in his will which By the fourth clause he gave to his daughis not involved in this suit. The will is dat- ter Cynthia R. B. Taylor 10742 acres of land ed March 29, 1888. In all, five children were in Mason county for life, remainder to her born to the testator, three of whom died prior children in fee simple absolute, with the furto the making of the will in question. Two ther provision that in case she died leaving of the children, Vilura Langley and Josie L. no child, children, or descendants of a child Miller, died intestate, leaving no child or or children, the same should go to her huschildren or descendants thereof. The thîrd, band for life, with remainder to the heirs Nancy Belle Walton, died August 19, 1856, at law of the testator. By the fifth clause leaving her surviving a daughter, Nancy he gave to his daughter Hannah A. Kehl Belle Walton (now Leinweber), the appel- 14712 acres of land for her life, with relant in this case. The wife of the testator, mainder to her children in fee simple absoNancy J. Miller, and two daughters, Mrs. lute, with the further provision that in case Kehl and Mrs. Taylor, survived him and she died leaving no child, children, or de were living when the will was made. Nancy scendants of a child or children, the same J. Miller has since died.

should go to her husband for life, with re The sole question involved in this appeal mainder to the testator's heirs at law in fee is the right of Nancy Belle Leinweber to simple absolute. By a codicil made Decemtake the portion her mother would have tak- ber 7, 1891, he specifically refers to the pro en under the third clause of the will had she vision in the third clause of the will wheresurvived the testator or died after the mak-in he gave his wife the rents from all his ing of the will. Appellant insists that she real estate for the first two years after his is entitled to take such portion by virtue of death, and directs that his two daughters,

shall each, respectively, pay to his wife, Billingsley v. Tongue, 9 Md. 575. The decishould she survive him, the sum of $150—sions in Re Nicholson's Will and Pimel v. $300 in all-each year during her natural Betjemann lose much of their force as author. life, and makes the same a charge upon the ity in this state under uniform holdings of our real estate respectively devised to them by court, above cited, that the statute applies his will.

to gifts to children as a class as well as to Section 11 of the statute of descent, relied gifts to them by name. In the following upon by appellant, is as follows:

cases, in construing similar statutes, the “Whenever a devisee or legatee in any last legatees died before the will was made; but will and testament, being a child or grandchild it was held that the children of such legatees of the testator, shall die before such testator, and no provision shall be made for such contin- | took what such legatees would have taken gency, the issue, if any there be, of such devisee had they survived the testator: Nutter v. or legatee, shall take the estate devised or be- Vickery, 64 Me. 490; Bray v. Pullen, 84 Me. queathed as the devisee or legatee would have done bad he survived the testator, and if there 185, 24 Atl. 811; Minter's Appeal, 40 Pa. 111; be no such issue at the time of the death of Bradley's Estate, 166 Pa. 300, 31 Atl. 96; such testator, the estate disposed of by such Wildberger v. Cheek, 94 Va. 517, 27 S. E. devise or legacy shall be considered and treated 441; Jamison v. Hay, 46 Mo. 546; Mower in all respects as intestate estate."

This section was adopted in the revision , Orr, 7 Hare, 473; Winter v. Winter, 5 of the laws in 1872, without substantial Hare, 306; Barkworth v. Young, 4 Drew, 1; change, from the Wills. Act of the statutes Wisden v. Wisden, 2 Smale & G. 404. of 1845 (Rev. Stat. 1845, c. 109, § 14), and

Without reviewing the various decisions on whenever the same has been before this this question and the reasons given to sustain court it has been held to apply to gifts and the conclusions there reached, we think the devises to children as a class, as well as to construction most in harmony with both the gifts and devises to a child or children by spirit and intention of the act, as well as name. Rudolph v. Rudolph, 207 I11. 266, 69 the policy of our law, is that which allows all N. E. 834, 99 Am. St. Rep. 211; Pirrung v. devisees or legatees of the class named in Pirrung, 228 Ill. 441, 81 N. E. 1065; Burlet v. the statute to take, irrespective of the time Burlet, 246 Ill. 563, 92 N. E. 965. In the of their death, either before or after the present case the devise in the third clause is time of the execution of the will, so long as to "children” of the testator as a class, and their death occurred prior to that of the no provision is made in the will for the con- testator, leaving issue, and no provision is tingency of the death of any of such chil- made for such contingency. Justice and equidren before the death of the testator. If|ty would seem to require that all children, in the provisions of this section of the statute the absence of special circumstances, should apply to the death of devisees or legatees oc- inherit equally from their parents, and that curring prior to the making of the will as in case of the death of one or more of them well as to the death of those occurring dur- their children should take the portion which ing the interim between the making of the their deceased parent would have taken had will and the death of the testator, appellant he or she survived the testator, and such is is entitled to her mother's share of the prop- the policy of our laws of descent. The law erty devised by the third clause of the will, under which appellant claims is a part of by virtue of the provisions of this section of the laws of descent in this state. There are the statute.

other provisions of the same law which were This question is a new one in the state. enacted for the benefit of the wives and chilSimilar questions have arisen in other juris-dren of decedents, such as section 10, which dictions, and the decisions on the subject provides that where a child is born to a testahave not been uniform. In some it has been tor after making a will and no provision is held that the time of the death of the legatee made in the will for such child, unless it or devisee is unimportant so long as it oc- shall appear that it was the intention of the curred during the lifetime of the testator, testator to disinherit such child, the devises while in others it has been held that such and legacies given by such will shall be abatdeath must have occurred during the interim ed in proportion to raise a portion for such between the making of the will and the death child equal to what he would have received of the testator in order that the issue of the had the testator died intestate, and the furdevisee or legatee may take. In re Nichol- | ther provision that a marriage shall be deemson's Will, 115 Iowa, 493, 88 N. W. 1061, 91 ed a revocation of a prior will. Am. St. Rep. 175, Pimel v. Betjemann, 183 N. Under the harsh rule of the common law Y. 194, 76 N. E. 157, 2 L R. A. (N. S.) 580, all gifts and devises were avoided by the 5 Ann. Cas. 239, and cases cited in the opin- death of the devisee or legatee before that of ions. In those cases it was held that, when the testator. At common law a bequest or the devise was to a class, a statute similar devise by will to a child of the testator who to ours would not apply where a member of was dead when the will was made was void, the class had died before the will was made. and a bequest or devise to a child who died To the same effect are Howland v. Slade, after the will was made, and before the tes155 Mass. 415, 29 N. E. 631; Almy v. Jones, tator, lapsed; and such rules would prevail 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414; | in this state but for the statute in question

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