author: Mr. Justice O’Cohhor

text:
    Frank Vojtek, Defendant in Error, v. William Horan and Delia Horan, Plaintiffs in Error.
    Gen. No. 30,883.
    1. Judges — when outside judge may hold court in Cooh county. The judge of any circuit of the State may hold court in Cook county when so requested by the judges of the circuit or superior courts thereof under Cahill’s St. ch. 37, j[ 103, and this provision in no way conflicts with 1Í1Í142 and 143 which permit such substitution upon a request to the Supreme Court by a majority of the judges of the circuit court of Cook county.

      2. Fraud and deceit — when plea sets up misrepresentations of fact. In an action to recover the balance due on the sale of a rooming house a plea setting up that plaintiff represented the house as being reputable with an income of $1,000 a month, whereas it was actually a house of ill fame, which defendants were compelled to vacate, and that the income at no time exceeded $700 per month, alleged misrepresentations of fact which if sustained would defeat the action, and it was error to strike the plea.
    3. Contracts — when not illegal. That a rooming house was conducted as a house of ill fame does not of itself excuse vendees from paying the complete purchase price if the sale was perfectly legal with no agreement that the place had been or should be conducted for immoral purposes.
    4. Saving questions for review — when objection below essential. Where the record shows that a cause was sent to the executive committee of the circuit court of Cook county for reassignment, the fact that it does not show an order assigning the ease to the judge who presided over the trial cannot be objected to where no such contention was made on the trial and no objection was made to the judge hearing the case.
    Error by defendants to the Circuit Court of Cook county; the Hon. Harry Edwards, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed March 2, 1927.
    Harold O. Mules, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Judgment by confession was entered in the circuit court of Cook county in favor of plaintiff against the defendants for $3,105. Afterwards upon motion of the defendants, the judgment was opened up and they were given leave to plead. They filed the general issue and a special plea and an affidavit of merits. After-wards, plaintiff moved to strike the pleas and affidavit of merits, but the motion was overruled and he was ordered to reply. He filed a similiter to the plea of the general issue and a replication to the special plea. Some time afterwards plaintiff moved the court for leave to withdraw his similiter and replication, and to strike defendants’ “plea.” The motion was allowed, the similiter and replication were withdrawn, the “plea” stricken and the judgment by confession was confirmed. No brief has been filed in behalf of the plaintiff in this court.

The defendants contend that the judgment is wrong and should be reversed because it appears from the record that the case was heard by Honorable Harry Edwards, judge of the 15th judicial circuit of this State, holding a branch of the circuit court of Cook county at the request of the judges of said circuit court, and that since the record fails, affirmatively, to show that Judge Edwards was assigned to sit in Cook county by the Supreme Court of this State, he was not authorized to try the case. In support of this counsel refer to paragraphs 142 and 143, ch. 37, Cahill’s St. 1925, which provide that where a majority of the judges of the circuit court of Cook county request the Supreme Court to assign judges from other .parts of the State to sit in Cook county under certain conditions, the Supreme Court may enter an order accordingly, which order shall state the period of time during which such judge shall hold court in Cook county. We think the point is not well taken, because the legislature has, by paragraph 103 of ch. 37 of Cahill’s St. 1925, provided that “Judges of the several circuit courts of this State may interchange with each other and with the judges of the superior court of cook county, and the judges of said circuit courts and of the superior court of Cook county may hold court or any branch of the court for each other, and perform each other’s duties, where they find it necessary or convenient. ” We think this section is not in conflict with paragraphs 142 and 143 above-mentioned. Repeal of a statute by implication is not favored, and there is no mention made in paragraphs 142 and 143 of the repeal of paragraph 103. We think a judge in any judicial circuit in the State may sit and hold court in Cook county when requested by the judges of the circuit court or superior court of Cook county as the case may be, and that judges may also be assigned by the Supreme Court in the manner pointed out in paragraphs 142 and 143.

In Reitz v. People, 77 Ill. 518, the court said (p. 519):

“It is further objected that the placita shows William H. Snyder, judge of the 22d judicial circuit, presided on the trial of the cause, and, as he was not the judge of the Washington circuit court, which this court judicially knows is in the 23d circuit, the proceedings were coram non judice, and, therefore, void, and of no effect. This court takes notice of these facts, and also of the law authorizing circuit judges to interchange and hold courts for one another on request. We will presume Judge Snyder held this court on request of the judge of that circuit. It would have been well the placita should have stated, ‘holding the term by request of the judge of the 23d judicial circuit, ’ but the omission does not render the proceedings void.” In the instant case the placita conforms to the rule laid down in the Beits case. Moreover, we think we should say that this point is clearly an afterthought, as no such assignment is made in the record.

The substantial question for decision is, Does the special plea set up a defense? The plea and affidavit of merits set up in substance that plaintiff and defendants entered into an oral agreement on the 29th of September, 1922, whereby plaintiff agreed to sell and the defendants agreed to buy ‘ ‘ a certain rooming house and the furniture therein,” together with the good will of the same, the rooming house being located on-North La Salle Street, Chicago, for a consideration of $9,500; that on that date defendants paid plaintiff $5,000 in cash and executed their 20 promissory notes payable monthly for $4,500 secured by chattel mortgage that on that date they entered into possession of the premises and paid nine of the notes during a period of nine months aggregating $1,800; that as an inducement to the defendants to purchase the house plaintiff represented to them that the rooming house was a good and reputable place, and that the income therefrom was $1,000 per month; that these representations were false and known to be so by the plaintiff, but that the defendants believed them and relied upon .them, and acting upon such representations, the defendants purchased the property. The plea further set up that the income of the house was not more than $700 per month at any time; that the rooming house was a house of ill fame and a house of assignation, and was not worth more than $5,000; that shortly after defendants took possession of the premises, they learned that the two representations above-mentioned were false, and on account of the complaints made about the character of the rooming house by the police officers, they were compelled to vacate the same. The plea further set up that the notes in suit were notes numbers 10 to 20 both inclusive which were given by the defendants in part payment of the purchase price as above stated. Apparently the defendants’ position as shown by their plea is that they desire to recoup the damages they have suffered by reason of such misrepresentations to the extent of plaintiff’s claim. The plea is rather indefinite and uncertain in some respects and not well drawn, but we think upon careful consideration of it, together with the affidavit of merits, that it sets up two misrepresentations of fact, which, if sustained by the evidence, would be sufficient to defeat plaintiff’s suit. The court erred in striking the plea. Bavarian Brewing Co. v. Farrar, 163 Ill. 471.

The defendants further contend that the plea was good in substance, because it disclosed the fact that the subject matter of the sale was a violation of the law of this State, in that the selling of the rooming house was for the purpose of having it conducted as a house of ill fame. This is clearly a misapprehension of what appears in the record. The transaction, as alleged, was a perfectly legitimate one. The rooming house was sold ■ by plaintiff to defendants and there was no agreement that it had been or should be run for immoral purposes. There is no merit in this contention.

A further point seems to be made that the record discloses the case was sent to the executive committee of the circuit court for reassignment and that no order appears in the record assigning the case to Judge Edwards. No contention of this character was made on the trial. There was no objection made to Judge Edwards hearing the case and the contention is clearly unwarranted.

For the reason stated, the judgment of the circuit court of Cook county is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

jReversed and remanded.

Taylor, P. J., and Thomson, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    The People of the State of Illinois ex rel. Frances Crofts, Plaintiff in Error, v. Conant Wait and Ada Wait, Defendants in Error.
    Gen. No. 30,910.
    1. Former adjudication — how foreign decree of divorce cannot be collaterally attacked. A foreign decree of divorce cannot be collaterally attacked in a habeas corpus proceeding for the custody of a child provided for in the divorce decree, by attempting to show the decree was void because the facts were not properly presented at the divorce trial

      2. Divobce — what may be shown m proceeding to change custody of child. In habeas corpus to determine the custody of the child of divorced parents awarded by decree of the courts of another State to the father, the court should permit evidence by relatrix, the mother, to show her circumstances have improved since the divorce decree and to show the condition of her former husband and the child since that time.
    3. Fobmeb adjudication — when foreign divorce decree not res adjudicata as to custody of children. A foreign decree of divorce awarding custody of a child until the further order of the court is not res adjudicata in this State as to the custody of the child.
    4. Evidence- — presumptions as to law of foreign State. In the absence of evidence to the contrary it will be presumed that the law of another State touching the custody of children in divorce proceedings is the same as the law of this State.
    5. Divorce — power of domestic courts to change custody of children fixed by decree of another State. The custody of children awarded by decree of divorce granted in another State may be changed by the courts of this State where warranted by facts occurring after the divorce and required by the best interests of the child, all of the parties having, since the entry of the decree, become residents of this State.
    6. Habeas corpus — when not available to change custody of child. If parents continue to live in the State where the decree of divorce was granted, the custody of their child as fixed in that decree will not be interfered with in habeas corpus instituted in this State by one parent to secure the child from the other.
    7. Divorce — procedure to change custody of child under decree of another State. A bill in equity is more appropriate than habeas corpus to determine whether the custody of a child as fixed in a divorce decree of another State should be altered by the courts of this State.
    8. Divorce — matters to be considered in determining change of custody of children. While in determining whether the custody of a child fixed by a divorce decree of another State should be altered the primary question is the best interests of the child, it is not the sole question; the fact that the custody was awarded by the foreign decree to the father for ten months of the year and that he had taken care of the child since it was two years of age should also be considered.
    Error by plaintiff to the Circuit Court of Cook county; the Hon. John B. Cavebly, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1926.
    Beversed and remanded.
    Opinion filed March 2, 1927.
    Behearing denied March 15, 1927.
    Wheelook, Newey & Mackenzie, for plaintiff in error.

      Darrow, Smith, Cronson & Smith and Church, McMurdt, Harpel & Wagner, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error Frances Crofts seeks to reverse a judgment of the circuit court of Cook county dismissing her petition for a writ of habeas corpus, the purpose of which was to obtain the custody of her 4-year-old son from Conant Wait, the father of the child and Ada Wait, the grandmother of the child.

The record discloses that in 1923 the defendant Conant Wait and his then wife Frances Wait, now the relatrix Frances Crofts, together with their child, Conant Wait, junior, being then less than two years of age, lived in Ohio; that he filed a suit for divorce against her in that State; that the case was tried, both parties being present in court and represented by counsel and on April 17, 1923, the common pleas court of Crawford county, Ohio, dissolved the marriage and awarded the custody of the minor child to the father, subject to the right of the mother to visit the child at all reasonable times. The .decree further provided that the mother might have possession of the child for a period of two months in every calendar year after the year 1923, upon giving satisfactory evidence to the court that the child would be returned to his father, the complainant in the divorce suit. The decree found that the defendant, the mother of the child, had been guilty of “gross neglect of duty toward plaintiff as in said petition set forth.” After-wards on May 1, 1923, an order was entered by the court of common pleas of Crawford county, Ohio, amending the divorce, wherein it is stated that the plaintiff or complainant, Conant Wait, spends a portion of his time with his parents and that he be authorized to leave the child in the possession of his parents and that while there, the child might be considered to be in the custody of his father. And it was further provided “that the orders herein made as to the custody of said child continue until further order of this court.” It further appears from the record that on July 26, 1924, the relatrix, the mother of the child, petitioned the common pleas court of Crawford county, Ohio, for leave to take the child for two months as provided in the decree of divorce, and an order was entered as prayed for; that on July 6, 1925, a similar application was made by the mother of . the child, and a like order entered by that court.

After the divorce all the parties moved to Cook county, Illinois, and are domiciled in this State. In April, 1925, the mother of the child again married and is now living with her husband in their home in Cook county, Illinois, and in October, 1925, she filed the habeas corpus proceeding now before us seeking to obtain possession of the child, who is now about four years old. In her petition she alleged that the defendants, the father and grandmother of the child, detained the child by reason of a “pretended decree of the court of Common Pleas of Crawford County, Ohio.” And it was further alleged that she was now able to take care of the child and that it was for the best interest of the child that its possession be given to her.

j After the issue was made up the case went to trial and the relatrix offered evidence tending to show that the decree of divorce entered by the Ohio court was void because the facts were not properly presented, although she was represented by counsel and present at the hearing. The offered evidence was excluded, and properly so, since it did not tend to show any fraud affecting the jurisdiction of the court. Forrest v. Fey, 218 Ill. 165. The decree of divorce could not be attacked in this collateral manner. She further offered evidence tending to show that she was now in a position, having remarried and established a home, to properly care for the child. The court held this evidence inadmissible and it was excluded, and the court further held that the only evidence he would consider was such as would tend to show that the father of the" child had become unfit to take care of the child since the entry of the decree of divorce in Ohio. Apparently the relatrix had no evidence that would tend to show that the father was not a proper person to have the custody of the boy.

We are of the opinion that the court should have admitted the evidence offered by the relatrix tending to show that her position and condition had improved since the decree of divorce was entered. We are also of the opinion that any evidence as to the condition of the relatrix and her former husband as well as of the child is admissible as tending to show changed conditions subsequent to the time the divorce decree was entered.

The decree of divorce entered in Ohio was not res adjudicate/, as to the custody of the child. That decree as amended shows that the .custody of the child was awarded to the father until the further order of that court.. Moreover in the absence of any showing as to the provisions of the Ohio law, it will be presumed that it is the same as the law of this State touching the custody of children in a divorce proceeding. After a divorce decree in this State, the custody of children is always subject to the order of the court which entered the decree and may be changed from time to time as conditions warrant. The primary consideration is the best interest of the. child. In this case we give full faith and credit to the decree of the Ohio court. But since the parties are all now living in this State, the Ohio court is without jurisdiction to make any order touching the custody of the child, and we are, as near as can be .done, but carrying out the provisions of the decree when we hold that the custody may be changed according to the facts occurring after the divorce, if the best interests of the child require that it be done. That the courts of this State have such power under the facts as disclosed by the record, is sustained by the following authorities. 9 R. C. L. § 293, p. 477; 15 R. C. L. § 417, p. 940; 19 C. J. § 831, p. 366; In re Alderman, 157 N. C. 507; State ex rel. Aldridge v. Aldridge, 163 Minn, 435; Milner v. Gatlin, 139 Ga. 109; Milner v. Gatlin, 143 Ga. 816; Kenner v. Kenner, 139 Tenn. 211; In re Ashley, 113 Ore. 43; People ex rel. Hickey v. Hickey, 86 Ill. App. 20; In re Bort, 25 Kan. 308; Seelye v. Seelye, 30 App. Cas. D. C. 191. Of course if the parties were still living where the divorce was granted habeas corpus would not lie, but they would be required to go before the court which granted the divorce for any order that would change the custody of the child. People ex rel Hanawalt v. Small, 237 Ill. 169.

Although the question is not mentioned or discussed, nor was it considered in the trial court, yet we think we ought to say that in our opinion a bill in equity would seem to be a more appropriate proceeding in the instant case than a petition for a writ of habeas corpus.. Equity may afford a more adequate remedy. That a court of equity has jurisdiction to determine the custody of a minor child where'its parents have been divorced, has been decided by the Supreme Court of this State in the case of Cowls v. Cowls, 3 Gilm. (8 Ill.) 435. In that case the parents of the child in question had been divorced and the former wife filed a bill in equity against her late husband to obtain the custody of their children and for a reasonable allowance for their support, and it was held that the bill would lie. The opinion in that case was written by Judge Catón, and it is there said (p. 437): “The; power of the Court of Chancery to interfere with and control, not only the estates but the persons and custody of all minors within the limits of its jurisdiction, is of very ancient origin, and cannot now be questioned.” And in support of this, Story on Equity Jurisdiction is cited. The court there said that our statute which provides for a decree touching the custody and support of minor children in a divorce proceeding confers no new authority or jurisdiction upon the court in such matters. Other authorities to the same effect are. 31 C. J. p. 993, §12; Murphree v. Hanson, 197 Ala. 246. The instant case is to be distinguished from the case of Thomas v. Thomas, 250 Ill. 354, where it was held that an original bill would not lie by a husband or wife against the other for the sole purpose of obtaining the custody of their children. In that case there was no divorce while in the instant case the parties had been divorced by a decree of the Ohio court and have since moved to and are residing in this State and the child is residing with his father here. The Ohio court has no jurisdiction but the matter is solely for the courts of this State.

While in the instant case the primary question is, Is it for the best interests of the child that his custody be given to the mother? Yet, obviously this is not the sole question, but the court on the hearing should take into consideration the fact that the Ohio court granted the father of the child the divorce on account of the fault of the mother and gave him the custody of the child for 10 months of each calendar year, granting the mother the right to have the child for two months of each year upon a proper showing; and that the father has taken care of the child since the child was about two years old. These and other matters as may be disclosed by the evidence will be important in determining whether the custody of the child should be changed.

The judgment of the circuit court of Cook county is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

Taylor, P. J., and Thomson, J., concur, ,


text:
    The People of the State of Illinois ex rel. John J. Brennan, Appellee, v. Edward B. Ellicott et al., Appellants.
    Gen. No. 31,084.
    1. Officers and public employees — when -mandamus petition to -require compliance -with Civil Service Law shows existence of position. A petition for mandamus is sufficient against the objection that it fails to show the existence of the place of employment of stationary firemen which it seeks to have filled under civil service rules, because it alleges that the engineer-custodians of the public schools of Chicago hire stationary firemen out of their salaries, the board of education having delegated to them authority to employ firemen and to pay them out of moneys appropriated to them for salaries.
    2. Officers and public employees — how “positions” may be created subject to Civil Service Law. Positions of stationary firemen which in mandamus proceedings the court may order filled for the public schools of Chicago under civil service rules need not in the absence of charter or statutory provision depend upon formal by-law, resolution or ordinance, but may spring from contract, express or implied.
    3. Officers and public employees — when recognition of civil service status does not require creation of positions. Becognition of the civil service status of firemen employed by engineer-custodians of the public schools out of money appropriated to them for salaries, under authority delegated by the board of education, does not require the board to create positions in contravention of Cahill’s St. ch. 122, j[ 153, which authorizes the board to appoint such employees as may be necessary, as the positions are already in existence.
    4. Injunction — when not proper remedy to compel compliance with Civil Service Law. An injunction against illegal expenditure of public money is not the proper remedy to compel the board of education to place stationary firemen hired for Chicago public schools by the engineer-custodians thereof under civil service.

      5. Officers and public employees — what does not excuse violation of Civil Service Law. Recognition of the civil service status of employees of the board of education may not be resisted on the ground that it would disarrange the public service of the schools, as even if it did it would not excuse a violation of the requirements of the Civil Service Law.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles A. Williams, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed March 2, 1927.
    Rehearing denied March 15, 1927.
    Frank S. Righeimer and Francis X. Busch, for appellants ; Elmer M. Leesman, Ralph W. Condee, John A. Cooke, Frank F. Trunk and Francis J. Vurpillat, of counsel.
    Franklin Rarer, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

The People of the State of Illinois on relation of John J. Brennan, who alleged that he was a taxpayer and a citizen of the city of Chicago, filed a petition against the members of the board of education and the civil service commissioners of the city of Chicago, praying that a writ of mandamus issue, directed to the defendants, commanding that the board of education ascertain the number of positions or places of employment of stationary firemen in the public schools in the city of Chicago; that they make a report thereof to the civil service commission, and that the civil service commission prepare, after the regular procedure, a list of persons eligible for such position or place of employment. General and special demurrers were filed. They were overruled and the defendants having elected to stand by the demurrers, an order was entered awarding the writ as prayed for.

The defendants contend that the petition is insufficient in that it fails to show that there was in existence such a position or place of employment as stationary fireman in the public schools. It is obvious that if the petition fails to show that there was such a position or place of employment, it would be insufficient. But we are of the opinion that the contention of the defendants is untenable. The allegations of the petition, so far as it is necessary to state them, are: That the city council of the city of Chicago appropriated more than $50,500,000 for school purposes for the year of 1925, and that of this sum $4,567,796 was for the operation of the various school buildings and school plants; that out of this latter sum, there are appropriated large sums of money for the payment of salaries of ‘ ‘ engineer-custodians. ” The petition then sets up that there is appropriated out of these moneys to pay the salary of the engineer-custodian of the Austin High School $21,653; then follows twelve other designated schools where the appropriation for the engineer-custodian runs as high as $50,000 per year, and it is averred that the engineer-custodian uses a part of this money to pay the salaries of-firemen employed in the several school buildings; that the board of education has delegated to the engineer-custodian the power to appoint stationary firemen and to pay them out of the money appropriated to the engineer-custodian and that this is being done.

From these allegations it appears that large sums of money are appropriated and set apart for payment to the engineer-custodians and that they use part of this money to pay firemen whom they employ to take care of the heating of the several school buildings. We think this is sufficient to show that there is such a position or place of employment as that of stationary fireman. Such place of employment, in the absence of statutory or charter provisions, need not necessarily be by formal ordinance, by-law or resolution, but it may be by contract, expressed or implied. People ex rel. Jacobs v. Coffin, 282 Ill. 599; O’Brien v. Frazier, 228 Ill. App. 118. But counsel for the defendants contend that if the writ is awarded in the instant case, its effect will be to require the board of education to create positions or places of employment and that this is in contravention of paragraph 153 of ch. 122 of Cahill’s St., which provides that the board of education may appoint such employees as the board may deem necessary. We think this contention is unsound. The facts as above stated clearly show that the places of employment are now in existence by virtue of the fact that firemen are now employed and being paid for heating the various school buildings, and by virtue of paragraph 153, supra, such employees are placed under the Civil Service Act. That section provides that a superintendent of schools, a business manager and an attorney, and the attorney’s assistants and the teachers are exempt from the Civil Service Law. All others are subject to the provisions of that act. We think the writ was properly awarded.

The defendants further contend that the petitioner’s remedy, if any, is in chancery by way of a bill for an injunction to prevent the illegal expenditure of the money. With this contention we are unable to agree, because under the law the firemen should be appointed in accordance with the Civil Service Law. Nor do we think there is merit in the further contention made that the awarding of the writ would disarrange the service of the schools. The stationary firemen who are now employed by the schools, as the record discloses, are subject to the provisions of the Civil Service Act, and they should be appointed according to that act. We are unable to see how the awarding of the writ would disarrange the operation of the several school buildings and even if there were any disarrangement, this would be no excuse, because the law must be followed until it is changed by the law-making "body.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J., and Thomson, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. William S. Moore, Plaintiff in Error.
    Gen. No. 31,172.
    1. Larceny — what essential to conviction. To convict defendant of the crime of larceny of plumbing goods which he had paid for and received from the clerk by whom they were unlawfully taken from the owner, it is essential to show that he knowingly abetted, aided, encouraged or advised such wrongful carrying away.
    2. Embezzlement — what essential to conviction. To convict defendant of embezzlement under Cahill’s St. eh. 38, If 186, by converting to his own use plumbing goods which he had paid for and received from the clerk by whom they were unlawfully taken from the owner, it is essential that they first be shown lawfully in his possession by reason of a fiduciary relation with the owner.
    3. Embezzlement — what does not constitute. The shipping clerk of a plumbing goods wholesaler does not have such a position of trust as to make his unlawful carrying away of his master’s goods an embezzlement, but such act was a larceny and one who knowingly purchased the goods from him would not be guilty of embezzlement.
    4. Criminal procedure — when amendment of order continuing cause for sentence immaterial. Although a court order, nunc pro tunc, amending an order in a criminal ease continuing the cause for sentence after a finding of guilty, entered at the preceding term from which the case had not been continued over was unwarranted, it was not necessary, for the court had power to take the matter of sentence under advisement until the succeeding term.
    5. Larceny — when evidence insufficient to sustain conviction. Evidence which shows that one accused of larceny of plumbing goods received them on the claim that they were seconds from a clerk whom he did not know had stolen them, and paid the price asked, and made no effort to conceal any of his acts, does not show such guilty knowledge of the theft as warrants conviction of larceny.

      Error by defendant to the Criminal Court of Cook county; the Hon. George Fred Rush, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed March 2, 1927.
    Charles S. Wharton, for plaintiff in error; Joseph R. Roach, of counsel.
    Robert E. Crowe, State’s Attorney, for defendant in error; Clarence E. Nelson and Edward E. Wilson, Assistant State’s Attorneys,.of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On November 16, 1925, an indictment was returned by the grand jury of Cook county against the defendant William S. Moore. The indictment was in two counts: The first charged larceny and the second, receiving stolen property. On March 22, 1926, the case came on for hearing and, on motion of the State’s attorney, • the felony charged in the • indictment was waived, the defendant entered a plea of not guilty to petit larceny, a jury was waived and the cause submitted to the court, who, after hearing the evidence, found tlie defendant guilty of petit larceny and fixed the value of the property stolen' at $14. Thereupon counsel for the defendant moved that sentence be not imposed until a later date. The motion was allowed and the cause continued until April 4,1926. The next that appears from the record is that on April 9, 1926, the court entered an order correcting the order of March 22nd so as to show that the time for sentencing the defendant was “postponed for two (2) weeks, into the April term, Monday April fifth (5th) A. D. 1926 and that said order is to be made nunc pro tunc as of March 22nd, A. D. 1926.” The record then shows that the defendant moved in arrest of judgment that the motion was overruled and he excepted, and thereupon the defendant was sentenced to serve six months in the common jail of Cook county and to pay a fine of $1. The judgment order as shown in the common-law record does not show any objection by the defendant to that part of the order purporting to correct the order of April 22nd above-mentioned, but in the bill of exceptions, it appears that this correction was made over objection of counsel for the defendant.

The evidence shows that the defendant was engaged in a small way - in the plumbing business in Evanston, and that during the months of March and April three deliveries of plumbing supplies were made to him through one Bond who was employed by the Wolf Manufacturing Corporation, a wholesale plumbing supply house, located in Chicago; that Bond was employed as shipping clerk -by the Wolf Manufacturing Corporation; that he lived in Evanston and had known the defendant for a few years; that the plumbing supplies in question were the property of the Wolf Manufacturing Corporation and delivered by one of its drivers in the ordinary way to the defendant in Evanston. The evidence further shows that about the next day after the first and second deliveries were made, the defendant paid Bond by check. After the third delivery, the defendant testified he became suspicious as to whether Bond had authority to sell him the supplies and a few days thereafter, the Wolf Manufacturing Corporation demanded payment for the three deliveries, which aggregated over $500 and informed Moore at that time the property had been stolen from them by Bond and that Bond had given none of the money received from the defendant to them. The evidence in more detail will be hereinafter referred to.

Counsel for the defendant contends that the evidence shows that if the defendant was guilty of any offense, it was that species of larceny defined by the statute as embezzlement and that since the plaintiff charged the defendant not with that species of larceny, but with the ordinary common-law larceny, the judgment cannot stand, because the proof shows one offense and the indictment charges another.

It is essential to the crime of larceny that the accused has wrongfully taken and carried away the property of another; or that, before or at the time of the theft, he had knowingly abetted, aided, encouraged or advised such wrongful taking away or carrying away of the property. Watts v. People, 204 Ill. 233. Embezzlement is defined in our statute as follows: “Whoever embezzles or fraudulently converts to his own use, or secretes, with intent to embezzle or fraudulently converts 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.” (Cahill’s St. 1925, ch. 38, ff 186.) And it has been held that the distinguishing element of the crime of larceny is the taking and carrying away of the property which is the subject of the larceny, while to constitute the crime of embezzlement, the property must be lawfully in the possession of the accused by the reason of some fiduciary relation between the accused and the owner. People v. Ehle, 273 Ill. 424; Hobbs v. People, 183 Ill. 336; 20 C. J. 418. It has been held that where a statute makes embezzlement larceny the indictment charging embezzlement must set out the acts of embezzlement. Kibs v. People, 81 Ill. 599.

In the instant case, however, we think it clear that the evidence does not in any way prove that the defendant was an embezzler within the meaning of our statute; nor could it be said that under the evidence Bond was guilty of embezzling the property of the Wolf Company. At most, he had the mere custody or naked possession of it. He was but a shipping clerk for the Wolf Manufacturing Corporation and was clearly guilty of larceny, that is, of carrying away the plumbing supplies of the Wolf Manufacturing Corporation. In 20 C. J., supra, it is said: “As has been stated, the distinguishing element of embezzlement is the conversion of property lawfully in the possession of the person converting it, * * * to constitute embezzlement, such possession must be something more than the mere custody or naked possession of the property converted; for if the servant or other person occupying a fiduciary relation has only the custody, his wrongful appropriation of the property to his own use would be larceny rather than embezzlement.” If the evidence shows that the defendant was an accessory, he might properly be indicted as principal. Lionetti v. People, 183 Ill. 253. We are clearly of the opinion that the contention of counsel for the defendant, to the effect that if the defendant were guilty of any offense it would be that species of larceny defined as embezzlement, is unwarranted.

The defendant further contends that since the cause was heard and he was found guilty March 22nd, which was in the March term of the criminal court of Cook county, and since the case was not continued to the April term, the court was without jurisdiction to sentence him on April 9th, which was during the April term of that court, and that the order entered on April 9th, which purported to amend the order of March 22nd nunc pro tunc as of the latter date, was unwarranted because there was no memorandum, memorial paper, or minute which would justify such order. April 4th was Sunday. The last day. of the March term was Saturday, April 3rd, and the first day of the April term was Monday, April 5th. The record discloses that the court made the nunc pro tunc order from his memory and from that of one of the attorneys. We think the order was unwarranted, but we are also of the opinion that it was unnecessary because the court might on March 22nd, when the defendant was found guilty, properly take the matter under advisement to consider the nature of the sentence that should be. imposed, for a reasonable length of time, even though that might extend into the next term of court. People ex rel. Boenert v. Barrett, 203 Ill. 287. In that case it was said that there could be no doubt that the court had the right to delay pronouncing judgment for a reasonable time, but that it could not suspend judgment indefinitely, and that when there was an unexplained delay of imposing sentence for more than two years after conviction, the court was without jurisdiction to sentence the defendant. The question is rather elaborately discussed and the authorities considered, and the implication clearly is that where, after conviction, the court took the matter under advisement to consider what sentence should be imposed, sentence might thereafter be imposed within a reasonable time. The cases of People ex rel. Fensky v. Leinecke, 290 Ill. 560; People v. Cahill, 300 Ill. 279, cited by counsel for the defendant, are not in point. In the Leinecke case, the defendant was found guilty at the June term of the DuPage county court, 1918, and was sentenced to pay a fine of $100 on each of the first five counts. Judgment was suspended as to the remaining seven counts. November 27, 1918, being still the June term, a mittimus was issued and the defendant was taken into custody. It does not appear that the court ever attempted to sentence the defendant under the seven remaining counts and as to these it was held that the court was without jurisdiction to impose sentence. It does not appear what time had elapsed since the defendant was found guilty and the filing of the original petition for habeas corpus in the Supreme Court, but at least nine months had elapsed. The Cahill case involved a construction of the Probation Act [Cahill’s St. ch. 38, Ü 813 et seg.], and it was there said inter alia that where one was found guilty, sentence could not he indefinitely suspended.

The defendant further contends that the judgment is wrong and should be reversed because the evidence does not show he was guilty beyond a reasonable doubt. We think this contention must be sustained. The facts were not as fully presented upon the trial as they should have been. Bond was a confessed thief; he had been indicted, although the learned trial judge expressly stated that the State’s attorney should proceed against him. The evidence shows that the defendant had lived for 35 years in Evanston and had been engaged in the plumbing business for 30 years. He apparently had two grown sons who are in the same business at Des Plaines, although this is not made clear. He testified that he had. known Bond for a few years; that Bond called at the defendant’s home and stated that he was working for the Wolf Manufacturing Corporation and that they sometimes had some “seconds” which he was permitted to dispose of for himself; that shortly afterwards, in accordance with the agreement between defendant and Bond, some plumbing supplies were delivered to the defendant by one of the drivers of the Wolf Manufacturing Corporation, and that the defendant signed a receipt for the goods and delivered it to the driver; that about the next day Bond called for payment and the defendant made out his check to Bond’s order for $80; that some few weeks later a second delivery was made in the same manner and apparently this was receipted for in the defendant’s absence by his wife and later the defendant gave Bond his check for $75 or $80 in payment of these goods; that a few weeks later the third delivery was made and among the plumbing goods in this delivery was a large bathtub, which the defendant testified he had no use for. He then became suspicious as to whether Bond had told him the truth, viz: — that he had the right to sell the property. The evidence further shows that a few days thereafter a representative of the Wolf Manufacturing Corporation called upon the defendant and demanded of him something over $500 in payment of the goods which defendant had received through Bond; that the defendant refused, stating that he had paid Bond for the first two deliveries, and the evidence shows without dispute that the defendant explained the whole situation at this time. Invoices were offered in evidence of the three deliveries, but they are not in the record.

A careful consideration of all the evidence in the record discloses the fact that the defendant made no effort to conceal anything that he had done. He receipted for one and his wife receipted for another of the deliveries and he gave his checks in payment. He did not attempt to conceal any of the facts when called upon for payment by the representative of the Wolf Manufacturing Corporation and his actions indicate that his version of the transaction with Bond was not dishonest. At least we are of the opinion that the evidence does not show beyond a reasonable doubt that he was acting dishonestly, and there was not presented all that should have been presented on behalf of the defendant. We think we ought to say, however, that counsel for defendant in this court did not represent him in the trial court.

In a criminal case where a reviewing court, upon careful consideration of all the evidence, is unable to say that the defendant is guilty beyond a reasonable doubt, it is its duty to reverse the judgment, and for this reason the judgment of the criminal court of Cook county is reversed and the cause remanded.

Reversed and remanded.

Taylor, P. J., and Thomson, J., concur.