text:
    The County of Lawrence v. Ed. Schmaulhausen et al.

      Filed at Mt. Vernon November 8, 1887.

    1. Elections—returns not properly made—drnty of ccmvassing board. "When the poll-book or list of voters returned by the judges of an election ■of a town to a county clerk, has not the certificate required by the statute, (chap. 46, sec. 61,) and such certificate is also absent from the poll-books returned from such town to the Secretary of State and the town clerk, the votes shown by the return from such town should not be counted by the ■canvassing board, but should be rejected, and the result declared upon the other returns made in conformity with the statute, especially when no ■offer is made to correct such returns before the close of the canvass.
    2. Same — evidence before canvassing board. The certificate of the .judges of election, together with the list of voters and the tally sheet, is the only evidence upon which the canvassing board can act in determining the result of an election in the county.
    3. Same—contesting an election—its scope and purpose—not as a mere review of the action of canvassers. The statute providing for the contest ■of an election is not designed merely to furnish a mode of reviewing or appealing from the action of the board of canvassers, but such contest is given for the purpose of finding out how many votes were cast for or against ■a candidate, or for or against a measure.
    4. An election can not, therefore, be contested, and the result changed, by merely showing that the canvassing board counted the votes of a particular town, upon a return and certificate not in conformity to the law. It must be shown, further, that the votes so counted were not actually cast, ■or were not legal votes. The votes shown by the defective return may have been actually cast, and they may have been legal votes.
    Appeal from the Circuit Court of Lawrence county; the Hon. William C. Jones, Judge, presiding.
    This is a petition claimed to be filed under section 117 of the Election law of this State, (chap. 46, Hurd’s Bev. Stat. of 1885, p. 542) for the alleged purpose of contesting an election in Lawrence county. The petitioners are more than five in number and style themselves “electors of the county of Lawrence.” The petition avers, that, on July 12,1886, the board of supervisors of Lawrence county passed and caused to be entered of record an order to build a new court house at a cost of $50,000, and to submit to the legal voters of said county, at the general election on November 2, 1886, a proposition to issue bonds of said county, drawing six per cent interest or a less rate, if possible, to the amount of $50,000, for the payment for the building of said court house, to become due in ten years; that, in pursuance of such order, John W. Calvert, clerk of the county court of Lawrence county, gave notice to the electors, that, on Tuesday, November 2, 1886, an election would be held in the several towns of the county for certain State and county officers, “and to vote for or against the proposition to issue county bonds in the sum of $50,000 for the purpose of erecting a new court house at Lawrenceville in said county of Lawrence;” that, at the election so held, the electors of the county voted upon the question so submitted; that, on the next day after the election, returns thereof were made to the county clerk from all the towns in the county “excepting the town of Petty, from which,” it is alleged, “no returns were made nor have any such returns yet been made in conformity to the statute,” etc.; that, by the returns of the election made to the county clerk, it appeared that 1380 votes had been cast for the proposition to issue county bonds to build the new court house, and that 1275 votes had been cast against it, showing a majority of 105 votes in favor of the proposition; that the canvassing board, consisting of John W. Calvert, county clerk, and John B. Began and B. H. Propes, justices of the peace of the county, entered upon the discharge of the duty of canvassing the returns of the votes, east at said election, and making abstracts thereof; that the board, in violation of its duty, canvassed and counted 17 votes, as cast for, and 307 votes, as cast against said proposition, in the town of Petty, “when in fact no return whatever had ever been made to the county clerk by the judges and clerks of election of the town of Petty;” that, by the wrongful act of the canvassing board, in counting the votes purporting to have been cast in the town of Petty and including the same in the abstract made and filed for preservation in the county clerk’s office, an apparent majority of 187 votes against said proposition was certified, “when, if only the returns made to said clerk had been counted, canvassed and included in said abstract, there would have been a majority of 105 votes in favor of said proposition;” that petitioners as electors of the county “desire to and do contest the election aforesaid upon the question so submitted to the people and upon no other question whatever,” and state the. following grounds or points, upon which they make such contest, to-wit:
    The board of canvassers canvassed and counted, and included in the abstract made, votes alleged to have been cast in the town of Petty, without having any returns made by the judges and clerks of election, and without any legal evidence that the votes so counted and canvassed had been cast.
    E any election was held in the town of Petty, the votes cast were not canvassed, and returns thereof enveloped and sealed in the room where said election was held, as provided by law.
    The clerks of said election did not set down in their poll-books the names of the persons voted for, and the question voted upon, written at full len'gth, the office for which said persons received votes, or the question voted upon, and the number of votes received, or cast, expressed in words at full length.
    No list of voters, certified according to law, was ever enveloped, or sealed, and by one of the judges delivered to the county clerk.
    No list of voters, and no tally sheet thereof was enveloped, sealed, and directed to the Secretary of State, and deposited in the post-office, as provided by law.
    No list of voters, and no tally sheet, with certificates thereon, as required by law, was enveloped, sealed, and delivered to the town clerk, as required by law.

      The judges did not, before any returns to the county clerk, Secretary of State and town clerk, were sealed up, compare the tally papers, footings and certificates, and see that they were correct duplicates, and certify to the correctness of the same.
    No returns of any election in Petty township, on the 2d day of November, 1886, have ever been made, or offered, to be made, by the judges and clerks of election in said town.
    The county clerk and justices of the peace counted and canvassed 324 votes more than were returned to them, and by so doing changed the result of said election, on the question of issuing bonds to build the court house, from an affirmative to a negative.
    The petitioners make the county of Lawrence defendant, and pray for process, and that the votes in the town of Petty, which were canvassed and counted by the canvassing board, may be excluded from the count of the votes of said election, and that the abstract of votes reported by the county canvassers, may be corrected accordingly, and that the vote of said county on the question of issuing bonds to build a new court house may be declared by the decree of the court upon the returns lawfully made to the county clerk, and for other and further relief, etc.
    The answer of the defendant admits that the board of supervisors passed and entered of record the order to build a new court house, and-to submit the question of issuing $50,000 of bonds to a vote of the electors at the general election in November, 1886; that notice was given as alleged; that, at the election, the electors voted on the question of issuing bonds, and that, on the day after the election, returns were made to the county clerk; but denies that no returns were made to the county clerk from the town of Petty, and charges the truth to be that returns were made from the town of Petty, on the next day after the election; denies that, by the returns, a majority of the legal votes cast were in favor of issuing the bonds, and charges that the returns made to the county clerk, showed a majority of 187 votes against the proposition to issue the bonds; admits that, the county clerk and John B. Began and B. H. Propes, two justices of the peace, constituted a canvassing board; that said board canvassed the returns and made an abstract, but denies that said canvassing board, in violation of their duty, canvassed and counted any votes, either for or against said proposition, from the town of Petty, which should not have been canvassed and counted, and an abstract thereof made by said board; denies that no returns were made from the town of Petty to the county clerk, by the judges and clerks of the election; but avers that returns were made by the said judges and clerks, which were canvassed and counted by said board, and abstracts of the same made; that upon a full and honest canvass of all votes cast at said election, by said convassing board, there was found to be a majority of 187 votes against the said proposition, and that it was so declared by said board, and an abstract was made by said board showing such majority to have been given against the said proposition; denies the existence and truth of all the specific grounds and facts, stated in the petition as reasons for throwing out and not counting the votes cast in the town of Petty for and against the said proposition, and charges the truth to be, that if any such facts exist they are but mere irregularities by which the election in that town can not be invalidated and the legal voters disfranchised; that, if there were any irregularities in the certificates "of the judges and clerks, an offer was made to correct and perfect such certificates before the returns from the town of Petty were canvassed and counted, and an abstract of the votes made; and that the said canvassing board proceeded to canvass and count the votes of the town of Petty without making any correction of such certificates; the defendant offers to perfect and complete the certificate of the judges and clerks of said election in the town of Petty, by procuring the said judges and clerks to sign said certificate in the presence of the court, if such certificate, on inspection by the court, should be found to lack the signature of such judges and clerks. Eeplication was filed to the answer.
    Upon the hearing, the petitioners introduced the following evidence: Poll-book of an election held in the town of Petty, on the 2d day of November, 1886, duly certified by the Secretary of State as a true copy of the one filed in his office, showing the names of the judges of election as follows: Assessor, Clinton Thorn, supervisor, David Smith, collector, D. W. Judy; also the names of the clerks, as follows: William H. High-field, T. J. Smith, J. E. Boseborough; oaths of the judges and clerks; a list of the electors voting at the election, showing that 329 votes were cast; a duly certified copy from the office of the Secretary of State of a tally list of an election held in the town of Petty, on Tuesday, the 2d day of November, 1886, showing the following: Por county bonds, 17 votes; against county bonds, 307 votes.
    B. H. Propes, sworn: “I was a member of the board that counted and canvassed the returns of the election held in Lawrence county, on Tuesday, the 2d day of November, 1886; John B. Began and John W. Calvert, county clerk, were the other members; there was a tally sheet and return of the names of voters from the town of Petty; they were not signed by any of the judges or clerks, and the number of votes given was not written in the blanks made for that purpose; on the question of issuing bonds, we counted 17 votes for and 307 votes against, from the town of Petty; we obtained the number from the tally sheet; we made an abstract of the votes cast in the county on the question of issuing _ bonds to build the new court house; the abstract included 17 votes for and 307 votes against the proposition, as having been cast in the town of Petty; including the votes from the town of Petty, the abstract showed 1375 votes for and 1582 votes against issuing the bonds.”
    The witness here identified the return and tally sheet of the town of Petty, produced from the office of the county clerk, and said: “They are the same that were before the canvassing board; the tally sheet is in the same condition as when returned, but the other is not; David Smith, the supervisor of the town of Petty, who made the returns, has signed it, and the blanks for the number of votes have been filled; these changes were made after the canvass; Smith signed his name on the same day, and Calvert filled the blanks with the number <of votes indicated on the tally sheet; there was nothing said about having the returns fixed; Smith did not propose to take the returns back to have them perfected; he made no offer of that kind.”
    The poll-book filed with the county clerk, returned from the town of Petty, showing the names of the judges and clerks the same as the one from the office of the Secretary of State, and the oaths administered, and a list of the names of electors, and showing that 329 votes were cast; certificate duly filled up and signed by David Smith, one of the judges, showing that 17 votes were cast for and 307 votes were cast against issuing the bonds; the tally list of the election held in the town of Petty, returned to the county clerk, being the same used by the canvassing board in canvassing and counting the returns and making the abstract, and showing the number of votes cast for the proposition to issue the bonds to be 17, and the number cast against the proposition to be 307; the abstract, made and signed by the canvassing board, on the question of issuing bonds to build the new court house, showing as follows: “For county bonds received 1375 votes; against county bonds received 1582 votes.”
    The petitioners here rested, and defendants declined to offer any evidence.
    The circuit court of Lawrence county, where the cause was tried, rendered a decree, finding the allegations of the petition, as above set forth, to be true, and decreeing that all the votes, counted by the canvassing board as having been cast in the town of Petty, “be and are excluded from said canvass and count and from the abstract thereof made by the said canvassing board;” that the papers filed in the county clerk’s office, purporting to be returns of an election in the town of Petty, “are absolutely null and void, and of no force or effect whatever;” that the number of votes cast and returned and counted in favor of the proposition to issue the bonds was. 1378, and that the number of votes cast, returned and counted against said proposition was 1275, and that “the said proposition was carried by a “majority of 105 votes at said election that defendant pay the costs, etc.
    Messrs. Bell & Green, and Mr. K. P. Snyder, for the appellant.
    Mr. E. Callahan, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court r

The sixty-first section of chapter 46 of the Revised- Statutes, entitled “Elections,” (Hurd’s Rev. Stat. 1885, p. 536,) provides,, that, when the votes shall have been examined and counted, the clerks shall set down in their poll-books the name of every person voted for written at full length, the office for which such person received such votes, and the number he did receive, the-number being expressed in words at full length, such entry to-be made, as nearly as circumstances will admit, in the following form, to-wit: “At an election held at * * * in the county of * * * and State of Illinois on the * * * day * * * in the year * * * the following named persons, received the number of votes annexed to their respective names for the following described offices, to-wit: (name of candidate) had (number of votes) for (title of office), (and in the same manner for any other persons voted for.) Certified by us.

A. B. }

C. D. > Judges of election.”

E. F. )

The sixty-second section provides, that one of the lists of voters with such certificate thereon, and one of the tally papers footed up so as to show the correct number of votes cast for each person voted for, shall he carefully enveloped and sealed up and put into the hands of one of the judges of election, who shall, within two days thereafter, deliver the same to the county clerk, or his deputy, at the office of said county clerk, “who shall safely keep the samethat another of the lists of voters, with such certificate written thereon, and another of the tally papers footed up as aforesaid, shall he carefully enveloped and sealed up and duly directed to the Secretary of State and by another of the judges of election deposited in the post-office, within twelve hours after the close of the polls, which poll-book and tally list shall he filed and kept by the Secretary of State for one year, “and certified copies thereof shall he evidence in all courts, proceedings and election contests;” that another of the lists of voters, with such certificate written thereon, and another of the tally papers footed up as aforesaid, shall be carefully enveloped and sealed up and delivered by the third one of the judges without delay, in counties under township organization, to the town clerk of the town, in which the district may he, and, in counties not under township organization, they shall be retained by one of the judges of election, and safely kept by said town clerk and judge, for the use and inspection of the voters of such district, until the next general election; that before said returns are sealed up as aforesaid the judges shall compare said tally papers, footings and certificates and see that they are correct and duplicates of each other and certify to the correctness of the same.

Section 11 of said chapter 46 provides, that, within seven days after the close of the election, the county clerks of the respective counties, with the assistance of two justices of the peace of the county, shall open the returns and make abstracts of the votes, etc.; that “the foregoing abstracts shall be preserved by the county clerk in his office.”

In this case, the poll-hook or list of voters, returned hy the judges of election in the town of Petty to the county clerk, did not have upon it or in it or attached to it the certificate required by the statute as above set forth. Such certificate was also absent from the poll-hooks or lists of voters returned from the town of Petty to the Secretary of State and to the town clerk. The county clerk and two justices of the peace, who constituted the canvassing board in Lawrence county, acted upon the returns from the town of Petty, notwithstanding the absence of the certificate in question from the poll-book, and, in making up the total vote cast in the county, they counted the votes cast in the town of Petty, as shown by the defective returns. The total vote of the county, including the votes alleged to have been cast in the town of Petty, showed a majority against the issuance of the bonds, while there was a majority in favor of their issuance, if the votes from that town had not been counted. According to the “abstract” of the votes made and signed by the canvassing board, there were 1375 votes for issuing the bonds to build the new court house and 1582 votes against issuing them.

Upon the authority of The People v. Nordheim, 99 111. 553, the board was not authorized to count the votes shown by the returns from the town of Petty, owing to the failure of the judges and clerks of election in that town to make and sign the certificate required by law; it should have declared the result without taking those returns into consideration. The proof does not show, that any offer was made to amend the returns before the close of the canvass by attaching the necessary certificate and having it signed by the judges of election. There seems to have been an inexcusable neglect of duty by the judges and clerks, who officiated in the town of Petty, notwithstanding the heavy penalties imposed by the statute.

But the question in this case is whether, under the provision made by our statute for contesting an election, the circuit court can substitute itself for the canvassing board, set aside the canvass made by the board, reject the returns from the town of Petty, declare the result of the election as shown by the other returns, and amend the abstract of the vote, as preserved by the county clerk. The prayer of the petition is, that the votes in the town of Petty may be excluded from the count ; that the abstract of votes, reported by the canvassers, may be corrected by the exclusion of the votes from that town; that the vote of the county on the question submitted may be declared upon the balance of the returns after throwing out those from the town of Petty. The petition nowhere charges, that 17 votes were not cast for the issuance of the bonds in the town of Petty, or that 307 votes were not cast there against the issuance of the bonds. It is not alleged, that 324 voters did not properly and lawfully vote upon the question submitted at the election in the town of Petty. It is not claimed that any of these 324 votes were illegal or fraudulent. The only charge made in the petition, which is insisted upon in argument, is that the poll-book, returned to the county clerk, did not have the required certificate signed by the judges and attested by the clerk.

The certificate, together with the list of voters and the tally sheet, is the evidence which the statute requires, that certain votes have been cast. The canvassing board can only act upon the particular form of evidence, so specified in the statute. {The People v. Nordheim, supra.) That board can receive no other proof than the list of voters, with the statutory certificate, and the tally paper.

The petition in this case does not contest the election; it contests the canvass; it merely asks that the canvass already made be set aside and amended, because the canvassing board acted upon insufficient evidence; it seeks to review such canvass or count as being erroneous, and specifies the want of proper proof as constituting the error. The decree is, not that the 324 votes, alleged to have been cast in the town of Petty, were not cast as matter of fact, or were illegal or fraudulent, but that all the votes counted as cast in that town be excluded from the canvass and the abstracts thereof, and that the papers, purporting to be returns from that town, are null and void, and that the votes returned and counted in favor of the bonds are 1378 and those returned and counted against them are 1275.

We do not think, that the statute providing for the contest of an election was designed merely to furnish a mode of reviewing or appealing from the action of the board of canvassers. An examination of sections from 113 to 123 inclusive in chapter 46 above referred to will show, that the proceedings there prescribed for contesting an election were so prescribed for the purpose of finding out how many votes were east for or against a candidate or for or against a measure and thereby ascertaining the will of the people. We have held that the practice in these procéedings under the statute is the same as in chancery suits. Talkington v. Turner, 71 Ill. 234; Dale v. Irwin, 78 id. 170; Kingery v. Berry, 94 id. 515.

Even if it was true, that the list of voters and the tally sheet returned from the town of Petty were not accompanied by the necessary certificate, it may have been none the less true, that the 324 votes, shown by the tally sheet to have been cast, were actually cast and were Iona fide and lawful votes. The circuit court is not limited to the particular form of evidence, to which the canvassing board is restricted by the statute.

The people of Lawrence county ought not to be saddled with a debt of $50,000 to build a new court house if, at the election called for the purpose of deciding the question, there was a majority of some 200 votes against incurring such debt. The petition and the proceedings under it should have been directed to the matter of ascertaining the true vote of the people upon the subject, and not to the mere amendment of the canvass. For the reasons here stated the decree of the circuit court is reversed and the cause is remanded.

Decree reversed.


source: Caselaw Access Project

author:
      Mr. Justice Mulkey
      Mr. Justice Magruder,

license: Public Domain

text:
    John Quinn v. The People of the State of Illinois.

      Filed at Mt. Vernon January 20, 1888.

    1. Criminal law—larceny of a horse—under what section of the Criminal Code the indictment properly framed. An indictment for the larceny of a horse is properly framed under section 215 of the Criminal Code, which defines the offence substantially as at common law, and not under section 224. The latter section does not define or create the offence, but simply fixes the punishment for horse stealing, and therefore operates as a limitation on section 216, which defines the punishment for larceny generally.
    2. Same—larceny of an estray—in whom to lay the ownership. In the case of the larceny of a horse while in the hands of one who had taken the horse up as an estray, the indictment may properly lay the ownership of the horse in the true owner, or in the person who held the animal as an estray. The interest of the taker of an estray animal, as against the true owner, is the posting fees and other lawful charges in his favor, but as against a wrongful taker it is the full value of the estray.
    3. Same—facts of case showing larceny. Two persons acting in concert, went to the house of the holder of an estray horse, one of them claiming to be the owner, and asked for it. The holder refused to give up the animal, and by agreement brought it the next day to town and saw such parties, who paid him his charges, and by his leave they were allowed to take the horse to the livery stable, to be fed. The party holding the horse did not intend to give it up until proof of ownership was made, and waited for the other two to come and furnish such proof. Instead of taking the animal to be fed and of returning to make the proof, they took it to an adjoining county, where they traded it for another horse. The claim of ownership was a mere pretense to get possession, and a fraud, and the facts showed that the holder of the estray never intended to surrender full-, possession and all claim to the animal until proof of ownership was made: Held, that the facts showed a larceny on the part of both the parties so obtaining the horse.
    4. Same—evidence of felonious intent—subsequent acts. Where a person is charged with larceny in obtaining an estray horse by fraud and false representations, it is proper to show, as having a bearing upon the question of felonious intent, what he and his accomplice did with the horse after getting possession of it, and there is no error in to instruction calling the attention of the jury to such acts.

      5. Same—larceny and embezzlement, as distinct offences. Nothing which is made larceny at common law can be embezzlement under our statute, so that a person can not be convicted under an indictment for both offences, in respect to the same property or transaction.
    6. Pbactice—improper remarks to ju/ry by State’s attorney—as to accused not testifying in his own behalf. On the trial of one for larceny and embezzlement, the assistant of the State’s attorney, in the closing argument, referred to the fact that the defendant failed to go upon the witness stand and deny certain things claimed to have been proven by the prosecution. On objection being made, the court stopped the counsel, and told the jury that his remarks were improper: Held, that the remarks of counsel were such an error as required a reversal of the judgment of conviction, and that the error was not cured by the statement of the court to the jury.
    7. Ebbob will not always bevebse—misdirection as to finding under different counts in an indictment. On the trial of one under an indictment charging the larceny of a horse, and also the embezzlement of a horse, the court instructed the jury, that if they found the defendant guilty, to specify under which count, and to fix the punishment at confinement in the penitentiary for not less than three nor more than twenty years. The jury found the accused guilty under the count charging larceny, and fixed the punishment at confinement in the penitentiary at ten years: Held, that as the jury found the defendant guilty of larceny, and not of embezzlement, there was no such error in the instruction as worked any injury to the defendant.
    8. Instbuotion•—• should be based on the evidence, ratlier than the pleadings. An indictment charged the larceny of “a certain horse, ” without stating its color, but the evidence showed it was a roan horse: Held, that there was no error in an instruction because it referred to the horse as a “certain roan horse mentioned in the indictment,” as an instruction should be based on the evidence rather than the pleadings.
    9. Same—as assuming a fact. The assuming of a fact in an instruction, which stands proved and is wholly undisputed, or which both parties assume to be true, is no ground for the reversal of a judgment in a criminal case, for the reason it can work no prejudice to either party.
    10. Same—referring to facts relied on. While there is danger of committing a mistake in preparing an instruction which embodies a general summary of the facts relied on by a party, and upon which the court is asked to pronounce the law, yet when such an instruction is properly framed there will be no error in giving the same.
    Writ of Error to the Circuit Court of Saline county; the Hon. C. S. Conger, Judge, presiding.

      Mr. W. H. Boxer, Mr. F. M. Youngblood, and Mr. Albert Watson, for the plaintiff in error:
    To sustain the conviction under the second count, required, among other things, proof of ownership and possession in Straub of the identical property described in the indictment, and a felonious intent of taking the same, by the defendant, from the possession of Straub.
    Where it appears, from the evidence, as here, that the owner parted with the possession of the property to the person charged, voluntarily, and as a result of negotiation between them touching the ownership, the People must further show, beyond a reasonable doubt, that at the time the possession was changed the owner did not intend to part with whatever interest he had at the time. Straub, on receiving $6.75, the extent of his claim or interest in the horse, voluntarily delivered possession of the horse to Monroe, coupled with no condition as to return or making proof of ownership.
    There can be no trespass, and consequently no larceny, when there is a consent to the taking, even though such consent is obtained by fraud. 2 Bishop on Crim. Law, secs. 817, 822, 823, 838.
    The comments of the assistant State’s attorney upon the defendant’s failure to testify, is such a violation of the statute and the rights of the accused as to call for a reversal. Rev. Stat. chap. 38, sec. 486.
    . The court erred in giving instructions for the prosecution, especially that as to the time of the punishment in the penitentiary, fixing the same at not less than three years. Embezzlement is made larceny, and the punishment for larceny is fixed at not less than one year in the penitentiary. The second count charged horse stealing, which is a distinct offence from larceny. Hoge v. People, 117 Ill. 49.
    The second of the People’s instructions assumes things to have been proven which ought to have been left to the jury to find. It tells the jury that the horse mentioned in the indictment was a certain roan horse, when, in fact, the indictment contains no such description. It assumes that Straub was in possession of the horse. It further tells the jury, “that if you believe that defendant and such other party took said horse from Saline county to Franklin county, and then and there disposed of said horse, as his own property, to one Hind-man, with a felonious intent to convert said horse, etc., then such taking would be larceny, as charged in the second count.” That count charged the felonious taking to have been in Saline county, and yet this instruction told the jury that they would be warranted in convictihg, upon proof that the taking was in Franklin county. .
    Mr. Geoege Hunt, Attorney General, and Mr. J. J. Pabish, State’s Attorney, for the People:
    The People’s three instructions, taken together, presented the law applicable with the utmost fairness, whether Straub actually parted with the title and possession of the horse not expecting its return, and are in harmony with the defendant’s instructions, and with the views of this court in Johnson v. People, 113 Ill. 99.
    The indictment being for the larceny of a horse, we are at a loss to discover wherein the instruction, as to the extent of the punishment, is objectionable.
    With regard to the allusion made by the attorney who assisted in the prosecution, to the fact that the defendant had failed to testify, we have' only this to say: that it was purely accidental, was promptly stopped at its beginning, and condemned by the court. We insist that the evidence of the defendant’s guilt was so plain, palpable, connected, conclusive and overwhelming, that this court must be convinced that the comments complained of did not harm him, and that the judgment ought not for that reason to be reversed.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the September term, 1887, of the Saline circuit court, John Quinn was tried, convicted, and sentenced to the penitentiary for ten years, on a charge of larceny and embezzlement, and the record of his conviction is now before us for review. The subject of the alleged larceny and embezzlement was a certain horse, the property of Sylvester Whitehead, a resident of Johnson county, which had been taken up as an estray by Stephen Straub, in the adjoining county of Saline. The indictment contains four counts. The first two are for larceny, the other two for embezzlement. The first and third lay the property in Whitehead, the second and fourth lay it in Straub. The defendant was convicted of larceny on the second count.

It appears, from the evidence, that while the horse was in the possession of Straub, as an estray, the accused; and a young man by the name of Monroe, went to Straub’s house, a few miles distant from Harrisburg, the county seat, called for the horse, claimed him as the property of Monroe, and proposed to take him away. Straub would not consent to this, but agreed to meet them next morning, with the horse, at Harrisburg, for the purpose of settling the matter. The parties ■accordingly met next morning in Harrisburg, at the hotel where Quinn and Monroe had stayed over night, Straub being accompanied by his wife, and having the horse with them. After some conversation between the parties, and the payment by Quinn to Straub of $6.75, amount of charges claimed to be ■due on account of the posting of the horse, Quinn and Monroe, without making any proof of their claim, succeeded in ¡getting possession of the horse, and took him over into Franklin county, where they swapped him to William Hindman for another.

As the accused was convicted upon the second count, which •charges the property in Straub, it will only be necessary to notice the evidence so far as it relates to that count, and, as it is confined within very narrow limits, it will be more satisfactory to set it out in its entirety. It consists mainly of the testimony of Straub and witness Warfield. The substance of it is stated in the abstract, as follows:

Stephen Straub—“Live south-east of Harrisburg, and lived there in November, 1884. At that time I took up and posted a roan horse with four white feet. ® * * In the fall of 1885 two men came to my house after the horse. I showed the horse to them. The young man went up to the horse, and said, ‘This is my horse,’ etc. Quinn said they would have to take the horse off. * * * I told them I would bring the horse to town next morning. My wife and I brought him here next morning, and went to Warfield’s house and asked him where the men were. He said they were at the hotel, and we took the horse, to the hotel. The men were eating their breakfasts. We then went to Baker’s corner with the horse, and soon after the two men, Quinn and the young man, came where we were, and asked us what the expenses of posting the horse had been. My wife told him, $6.75. The young man asked Quinn to pay the money, which he did, paying my wife $6.75. The young man asked if the horse had been fed this morning. She said no. He asked if we would object to taking him to the livery stable and having him fed. She said no. They went off towards the livery stable. We went to Warfield’s office, and waited an hour or two for him to come. When Warfield came he said they must file affidavits, and we then went to the livery stable, and the men were gone.” Cross-examination : “The men paid my wife for taking the horse up. The young man requested Quinn to pay the charges for him. They said nothing to me about proving the horse.”

R. N. Warfield—“I remember of old man Straub posting a horse before me. Had conversation with Quinn, who said he had visited Straub, and he (Straub) agreed, as soon as his wife came home, to bring the horse here, and asked me' if Straub would run the horse off. I told him no. He was a Dutchman, and his wife is the boss and wears the breeches, and when she comes home they would bring the horse in. I prepared affidavits that evening. They were never signed or sworn to. I learned from some one Quinn had stopped at the McFarlin House, on the west side of the square. The next morning Straub and his wife came in about sunrise, with the horse. He and his wife capae to my house and wanted affidavits, but I afterwards saw them unhitch the horse from the east side of the square,—I had told them where Quinn was stopping,—■ and go off in the direction of the McFarlin House. I after-wards went to my office, and found Straub and wife there, and told them they must have the fellows swear to the horse. They then went to the livery stable, and returned and reported them gone.”

With the exception of certain facts and circumstances bearing on the question “óf felonious intent,” this is about all the evidence tending to support the second count in the indictment.

We do not understand, as is suggested by counsel for plaintiff in error, that the offence charged in the second count “is an offence different from that of larceny at the common law,” or from that of larceny as defined by the 215th section of the Criminal Code. The indictment in this case is not, strictly speaking, founded upon the 224th section of the Criminal Code, as is supposed by counsel. That section does not attempt to define the crime of larceny. It simply fixes the punishment for horse stealing, and therefore operates as a limitation on section 216, which defines the punishment of larceny. The present indictment is framed under the 215th section of our statute, which defines larceny substantially as it is defined by the common law, and the indictment is clearly for a common law offence. This being so, it follows that the case is to be governed by common law principles.

Upon the evidence before us, we think the jury were justified in reaching the conclusion, as they must have done, that the accused and the young man who accompanied him to Straub’s house were acting in concert, and that the claim there set up to the horse was a mere pretense to cover a deliberate purpose to steal him. Assuming this to be so, it follows that if they had taken the horse without Straub’s consent they would have been guilty of larceny, and the property in the horse might well have been laid either in Straub or Whitehead. That the former parted with the temporary custody of the horse, is conceded; but counsel for plaintiff in error insist that there was a change of possession, as contradistinguished from mere custody. Still, this would not be sufficient to exonerate the accused, for the reason the claim to the horse, as found by the jury, was a fraud and pretense, and there was a present purpose to steal him. On the facts, the only plausible ground of defence is, that Straub, in accepting the $6.75, (the amount of charges on the horse,) and permitting the accused to take him from the hotel, thereby intended to" part, absolutely, not only with the possession, but with all title and interest whatever in the property,—and such we understand to be the claim of counsel.

If the facts were simply that the horse was brought to the hotel, the money paid over to Straub, the horse unconditionally delivered by him to the accused, and that the latter took him away, there would be much force in the claim that Straub thereby intended to part with all title and claim to the horse. But the case suggested is not the one before us. It is evident Straub knew that no one had the right to take the horse from him without making proof of ownership. He had previously been told by Warfield, the justice, that if any one came after the horse, he would have to be brought to town before he could properly be surrendered, and on this ground, doubtless, Straub refused to let the parties take him, when at his house. The justice states: “The next morning Straub and his wife came in about sunrise, with the horse. He and his wife came to my house, and wanted affidavits” etc. It is very clear that notwithstanding they had received the posting fees, and had consented that the horse might be taken to the stable for the purpose of being fed, they did not intend that the accused and his confederate should take the horse away until they had made the necessary affidavits of ownership. This is conclusively shown by the fact, that after all this had occurred Straub and wife went to the justice’s office, and waited an hour or so for him to come, not knowing the accused had already gone with the horse. The latter, also, must have understood that Straub did not intend to part with the horse till the necessary proofs were made, otherwise they would not have asked permission, as they did, to take him to the stable to have him fed. Why did they propose paying the charges on the horse before the proofs were made ? Was it to lull Straub and his wife into security, while they, under the pretense of going to the stable to feed the horse, might get away with him ? It would have been time enough to pay charges after establishing their claim to him. It is more than likely that Straub and wife regarded this promptness on their part to pay the charges as an evidence of their good faith and purpose to fully comply with the law before taking off the property.

Taking all these circumstances into consideration, we think the jury were warranted in reaching the conclusion, as they must have done, that there was no intention on the part of Straub to part with the horse altogether until after the necessary proofs were made. It is very clear that permission to take the horse to the stable to be fed, which alone was given, conferred no authority to take him anywhere else. The jury must have found he was taken off without Straub’s permis-. sion or consent, and with the intent to steal him, and we are unable to say that the evidence is insufficient to support this hypothesis.

We do not agree with counsel in assuming that the only interest Straub had in the horse was the posting fees. That would be true as against Whitehead, the real owner, but as against Quinn and his accomplice his interest was the full value of the horse.

The second instruction given in behalf of the People is complained of. It is as follows:

“If you believe, from the evidence, beyond a reasonable doubt, that in the fall of 1884 Sylvester Whitehead was owner of a certain roan horse mentioned in the indictment, and about the month of November in said year said horse strayed away from its owner, and was afterwards, in said month and year, taken up as an estray by one Stephen Straub, a resident of Saline county, Illinois; and if you further so believe, in the month of September, 1885, while said horse was in the legal possession of said Straub, the defendant and another, in Saline county, Illinois, obtained possession of said horse from said Straub by falsely and fraudulently representing to said Straub that said horse was the property of one of them, with the felonious intent * * * to feloniously convert the horse to his own use, but that said Straub did not intend to part with his title to said horse; and if you further believe, that defendant and such other party took said horse from said Saline county to Franklin county, and then and there disposed' of said horse as his own property, to one Hindman, with a felonious intention to convert said horse, etc., then such taking would be larceny, as charged in the second count in the indictment.”

It is objected that this instruction is erroneous, in referring to the horse charged to have been stolen, as a “certain roan horse,” when he is not so described in the indictment. We perceive no force in this objection. It is true the indictment does not state the color of the horse, nor was it necessary to do so. The evidence, however, does show him to have been a “roan” horse, and as instructions should always be based on the evidence rather than the pleadings, there was. no impropriety in referring to the horse as described in the evidence.

It is further objected., that the instruction “assumes that Straub was in possession of the horse.” We do not so read the instruction. But even if this were so, it would afford no ground of complaint, because his possession was an undisputed fact, and the evidence was conclusive and all one way on that subject; hence the defendant could not have been prejudiced oh the ground suggested. Courts never reverse for an error that works no injury. Besides, this complaint is inconsistent with the main defence relied on. The accused urges, with great persistence, that Straub voluntarily surrendered to him the possession of the horse, together with all interest in him. This, of course, he could not have done unless the possession of the horse had been in Straub. Under these circumstances the court might well have treated the possession of the horse by Straub as a matter about which both parties were agreed.

It is finally objected, that this instruction told the jury, in effect, that they might find the defendant guilty under the second count in the indictment, upon satisfactory proof of the conversion of the property in Franklin county. A careful reading of the instruction, we do not think, justifies the construction which counsel have placed on it, though it is not as perspicuous, in this respect, as it might have been. There is embodied in it a general summary of the material facts relied on for a conviction, and the court, in conclusion, is asked to pronounce the law upon this summary of the facts as set forth in the instruction. While there is always more or less danger of committing a mistake in preparing instructions of this kind, yet when properly framed they have often received the approval of this court. It was proper to show, as bearing upon the question of felonious intent, what the parties did after getting possession of the horse, where they went, and what disposition they made of the horse. This was done, and we see no impropriety of referring to the fact and place of the sale,,—whether it occurred in Franklin, Saline, or any other county. It will be seen, by carefully examining the instruetion, that it does not tell the jury that the conversion or transfer of the horse in Franklin would be larceny, but that “such taking” would be larceny,—that is, the taking of him from Straub, under all the circumstances recited in the instruction, including the swapping of the horse in Franklin, “would be larceny.”

Believing, as we do, the inartificial manner in which this instruction is drawn could not have misled the jury, the objections to it should not prevail to the extent of requiring a reversal.

Exceptions are also taken to the fourth instruction. It is as follows:

“The court instructs the jury, if you find the defendant guilty, you should specify, in your verdict, upon what count of the indictment, and the form of your verdict may be, ‘We, the jury, find the defendant guilty as charged in the-count of the indictment, and we fix his punishment at imprisonment in the State penitentiary for the term of -years,’ (not less than three nor more than twenty years,) or, if you find the defendant not guilty, the form of your verdict may be, ‘We, the jury, find the defendant not guilty.’”

By the 115th section of the Criminal Code it is provided, that “whoever embezzles 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,” and the punishment for larceny, where the value of the property taken is over $15, is fixed by the 216th section at confinement in the penitentiary not less than one nor more than ten years. But the punishment for stealing a horse is fixed by the 224th section at confinement in the penitentiary not less than three nor more than twenty years. Now, it is urged against the instruction, that assuming the jury had been of the opinion the defendant was guilty, under one of the counts, for embezzlement, and had desired to fix the punishment at something less than three years, as counsel claim they might have done under a proper construction of the above sections of the statute, yet, by the instruction, they were not permitted to do so. This objection is evidently based upon the hypothesis that there is a difference in the punishment for the larceny of a horse and the embezzlement of one. It is not necessary to express any opinion on this question, as it is evident the instruction could have worked no injury to the accused, as the jury found the defendant guilty of larceny, and it conclusively shows they could not legally have found him guilty of embezzlement, for the reason that nothing which is larceny at the common law can be embezzlement under the statute. (Kits v. The People, 81 Ill. 599.) Again, as the only objection to the instruction is, that it did not permit the jury to fix the punishment at less than three years, it is manifest the accused was not prejudiced by it, for the additional reason that the punishment is much greater than that limited by the instruction. If the punishment had been fixed by the jury at three years, the lowest they could have imposed, under the instruction, then, assuming the construction contended for is correct, there would be much force in the objection ; but since the punishment, as fixed by the jury, is more than three times greater than the minimum fixed by the instruction, we perceive no force in the objection.

So far no serious difficulty has been encountered in the consideration of this case. It remains, however; to consider an objection of a more serious character. It is claimed by the prisoner, that in the conduct of the trial, his rights, under the constitution and laws of the State, were violated and disregarded. It is clear that whenever a trial is so conducted as to deprive the accused of any substantial right, he has not had a fair trial, within the meaning of the constitution, and a trial which is not fair is not only violative of common right, but is contrary to the spirit and genius of our free institutions. It is also a reproach to the courts that permit it, and a blot upon the jurisprudence of the State.

An uncontradicted affidavit in the bill of exceptions contains the following statement: “That W. H. Parish, Jr., who was associated with the State’s attorney in the prosecution of defendant in this cause, did, on the argument made by him for the People in said cause, after the evidence was closed, refer to and comment on the fact that the defendant had not testified in his own behalf on the trial of said cause; and after enumerating several material facts which he claimed the People had proven, and which he said were true, he then said, in his argument, ‘If this is not true, what did they have John Quinn here for ?—why did he not go on the witness stand and deny it?’—which was objected to,” etc.

The 486th section of the Criminal Code, which gives the accused the right to testify on his own behalf, contains this proviso: “Provided, however, that a defendant in any criminal case or proceeding, shall only, at his own request, be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to he made to or upon such neglect.” In giving a construction to this section of the statute, and earnestly endeavoring to enforce it in its true spirit and intent, this court has spoken in no uncertain tones. The cases of Baker v. The People, 105 Ill. 452, Austin v. The People, 102 id. 261, and Angelo v. The People, 96 id. 209, (the only ones we have been able-to find where the subject has been before us,) were all reversed for a violation of this provision of the statute. In the Austin case, it is true, two of the members of the court dissented, but on the distinct ground that they regarded the reference made by the State’s attorney to the fact that the accused had failed to testify as a witness in his own behalf, as a legitimate reply to the argument of counsel for defence. The case was a prosecution for rape, and the defendant’s attorney had alluded to the remarks of Lord Hale about the difficulty of defending against a charge so easily made, and it was in reply to this that the People’s counsel said that this difficulty did not exist in that case, because the defendant had the right to go on the stand as a witness, if he desired to avail himself of it, or words to that effect. Notwithstanding this was really a pertinent reply to the opposing argument, outside of the fact the statute prohibited it, a majority of the members of the court, believing it would be dangerous to permit the subject to be referred to at all, voted to reverse the case, and it was accordingly reversed. The court was unanimous in reversing the other two cases. There is not a mitigating circumstance in this case,—if, indeed, there could be such a thing,—that was not in the others. It is true the court, upon the objection being made, stopped counsel, and told the jury that his remarks were improper; and this, together with the claim that the remarks were unthoughtedly made in the heat of discussion, is all that is urged in palliation of the positive violation of the statute. How much did it avail for the court to tell the jury that the remarks of counsel were improper ? His words had found' a lodgment in the minds of the jury, spent their force and subserved the purpose for which they were uttered, and it were idle to talk about removing their effect upon the jury by a mere declaration from the court that they were improper. As well might one attempt to brush off with the hand a stain of ink from a piece of white linen. One, in the very nature of things, is just as impossible as the other. The present cáse, in this respect, is “on all fours” with that of Angelo v. The People, supra, and everything urged here by way of extenuation is 'fully met by what is said in that case, and it is therefore unnecessary to repeat it again. In respect to the general principles of law applicable to this case, upon the facts, we refer to Johnson v. The People, 113 Ill. 99.

For the error last discussed, the judgment of the court below is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed,.

Mr. Justice Magruder,

dissenting:

I do not concur in the reversal of the judgment in this case for two reasons. First, the court ruled, in the presence of the jury, that the objectionable statement made by the counsel for the prosecution was improper. Counsel for defendant objected “to any reference being made to the fact that the defendant did not testify.” In ruling upon this objection, the trial judge said:. . “The objection is sustained—it'is improper to make any reference to the fact of the defendant failing to testify.” Any harm, which the language of the prosecuting attorney may have done, was counteracted by the emphatic utterance of the court. Second, in Austin v. The People, 102 Ill. 261, this court said “that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial in all cases where the proofs of guilt are not so clear and conclusive, that the court can say affirmatively the accused could not have been harmed from that cause.” The record and the opinion of the majority show, that the proofs of guilt of the plaintiff in error in this case are so clear and conclusive that he could not have been harmed by the language objected to.


author: Mr. Justice Scholfield

text:
    The Village of Des Plaines v. Benjamin Poyer.

      Filed at Ottawa January 20, 1888.

    1. Municipal corporation—of the right to declare what are nuisances. The power given by law to incorporated cities and villages to declare what shall be a nuisance, does not authorize a village to declare that a nuisance which is not such in fact.
    2. Same—power to declare picnics and open air dances nuiscmces. Public picnics and open air dances are not, in their nature, nuisances, and can not be so declared by ordinance. The manner of conducting them may be productive of annoyance and injury to the public, and since the nuisance must consist in this, an ordinance should be directed thereto. The question whether they are so conducted as to become a nuisance, must be settled as one of fact, and not of law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Stiles & Lewis, and Mr. C. S. Cutting, for the appellant:
    The statute authorized the ordinance in question. Rev. Stat. art. 5, sec. 1, clauses 41, 66, 72, 75, 96, relating to cities and villages.
    The validity of the ordinance is a question of law, for the court. Peoria v. Calhoun, 29 Ill. 317; 2 Dillon on Mun. Corp. sec. 327.
    The ordinance is a reasonable exercise of the power conferred by the statute. Goddard v. Jacksonville, 15 Ill. 588; Roberts v. Ogle, 30 id. 459; Railway Co. v. Lake View, 105 id. 207; Harmon v. Chicago, 110 id. 400; Rex v. Moore, 3 B. & A. 184; Rex v. Carlisle, C. & P. 628; Barker v. Commonwealth, 19 Pa. St. 412; Commonwealth v. Spratt, 14 Phil. 365.
    When a municipal corporation is vested with general power to declare what shall be deemed a nuisance, in all cases where a thing may or may not be a nuisance, according to circumstances, its decision is conclusive. Railway Co. v. Lake View, 105 Ill. 213; Hart v. Albany, 3 Paige, 213; Mayor v. Gustach, 33 La. Ann. 1011; Green v. Savannah, 6 Ga. 1.
    Mr. John Gibbons, for the appellee:
    The village authorities have not the right to declare that a nuisance which is not one in fact. Dillon on Mun. Corp. sec. 374; Darst v. People, 51 Ill. 286; Yates v. City of Milwaukee, 10 Wall. 497.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The only question involved in the present case is the validity of the following ordinance:

“Sec. 1. That all public picnics and open air dances within the limits of said village are hereby declared to be nuisances.

“See. 2. That for any person or. persons to rent, use, or allow to be used, any yard, ground, grove or other real estate within the corporate limits of the village of Des Plaines, for public picnic purposes, or for open air dances, or to permit or in any way allow the use of such property for any purpose by which disorderly persons are gathered in or about said village of Des Plaines, shall constitute and is hereby declared to be a nuisance. Any person creating or permitting any nuisance mentioned and declared in this ordinance to exist, having the right or power to abate the same, shall be subject to a fine of not less than $50, and not exceeding $100, in every case; and each renting, using, or allowing to be used, of any such premises for the purposes aforesaid, or any of them, shall be deemed the creating of a new nuisance, and the author thereof be subject to a like fine.”

The village is incorporated under the general law in relation to the incorporation of villages, and is by that law empowered to declare what shall be a nuisance; but this does not authorize the village to declare that a nuisance which is not so in fact. Wood on Nuisances, p. 773, sec. 740; Chicago v. Laflin, 49 Ill. 172; Dillon on Mun. Corp. (3d ed.) sec. 374.

It was said in Town of Lake View v. Letz, 44 Ill. 81: “There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character, in this respect, depending on circumstances.” And in the latter instance it is manifestly beyond the power of the village to declare in advance that those things are a nuisance, and so it was held in that case. The question when the thing may or may not be a nuisance, must be settled as one of fact, and not of law.

That public picnics and public dances are not in their nature nuisances, we think is quite clear. They are not in the list of common law nuisances enumerated in the text books. See 4 Blackstone’s Com. (Sharswood’s ed.) p. 166, *167, et seq.; 1 Hawkins’ Pleas of the Crown, (Curwen’s ed.) p. 694; Wood on Nuisances, p. 32, sec. 23, et seq. Nor is there anything necessarily harmful in the nature of either, more than in that of any other public amusement. When conducted with proper decorum and circumspection, and remote from public thoroughfares, it is impossible to conceive how any public injury or annoyance can result. That the manner of conducting them may bé productive of annoyance and injury to the public is not to be questioned, but since the nuisance must consist in this, and can not consist in the mere fact that there is a picnic or dance, the ordinance should be directed only to it.

While the right of the people to be free from disturbance and reasonable apprehension of danger to person and property is to be respected and jealously guarded, the equal right of all to assemble together for health, recreation or amusement in the open air is no less to be respected and jealously guarded. Because a privilege may be abused, is no reason why it shall be denied. We concur in the views expressed by the Appellate Court when the case was before it. Poyer v. Village of Des-Plaines, 22 Bradw. 584.

. The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    The People of the State of Illinois v. Robert Givens et al.

      Filed at Springfield January 18, 1888.

    Taxation — application for judgment—prerequisites in support thereof—burden of proof—presumption. In the absence of any objection to the form or substance of the collector’s return of the delinquent list, or notice of application for judgment, or to the list as returned, it will be presumed that the collector did his duty as required by law.
    193 =540 00^eoiox’8 ewo™. report of the list of delinquent lands, together x t —i with proof of publication thereof, and notice of application for judgment, 199 =134 make a prima facie case, and entitle him to judgment thereon, unless good ----cause is shown to the contrary. If there are any valid objections not appearing on the face of the delinquent list, notice and proof of publication, it is for the owner to point them out and make them to appear. In this respect there is no difference between a special assessment and any other tax authorized by law.
    3. In such case the collector is not bound to show that the tax or special assessment was legally assessed, by proof, until the presumption created by his return of the delinquent list is overcome by the objector.
    Writ of Error to the County Court of DeWitt county; the Hon. George B. Graham, Judge, presiding.
    The county collector of DeWitt county applied to the county court for judgment against delinquent lands and lots, for taxes and special assessments levied and assessed in the year 1884. The defendants in error appeared and filed their objections as to the lands and lots owned hy them, respectively, to the rendition of judgment against such lands and lots, for the special drainage assessment, interest and costs in drainage district No. 1, in Nixon township. The objections filed were,—first, that the drainage district referred to in the collector’s delinquent list had no legal existence, and no right existed to assess a tax for drainage purposes; second, that the proceeding for the organization of such district was not according to law; third, that the assessment was made by persons having no power or jurisdiction to enforce the same; fourth, that the jury was not legally impaneled; fifth, that the assessment was made upon an improper basis, and for an illegal purpose; and sixth, that the assessment was not legally and properly certified to the court.
    On the hearing, the collector’s delinquent list, duly verified, was offered and read in evidence, over the objection of defendants in error. In that list were included defendants in error, as owners, and a description of their several parcels of land, and against each parcel the taxes, special assessment, interest and costs assessed and accruing thereon for the year 1884, and remaining unpaid, and including the special drainage assessment in drainage district No. 1, in Nixon township, for that year. The collector also introduced in evidence a copy of the “Clinton Public,” a newspaper published in DeWitt county, containing a copy of the collector’s said delinquent list, with notice when judgment would be applied for, and the time and place when the sale of such lands as judgments should be obtained against would take place, with a certificate of the publishers as to its publication, which was read in evidence, over the objection of defendants in error. The collector having rested, defendants in error demurred to the plaintiff’s evidence, and objected to the rendition of judgment against their lands, and such demurrer and objection were by the court sustained, upon the ground, as the record shows, “of want of proof of organization of drainage districts,” and rendered judgment for the defendants in error. Exceptions to the ruling and judgment of the court were taken, motion for new trial overruled and exception taken, and the record is brought here by writ of error.
    Mr. William Booth, State’s Attorney, and Messrs. Beach & Hodnett, for the plaintiffs in error:
    The collector’s report of the list of delinquent lands on an application for judgment, makes a prima facie case. 2 Starr & Curtis’ Stat. p. 2086, sec. 193; Durham v. People, 67 Ill. 414; Mix v. People ex rel. 81 id. 118; Frew v. Taylor, 106 id. 159; Chiniquy v. People, 78 id. 570; Buck v. People, id. 560; Brackett v. People, 115 id. 129; Pike v. People, 84 id. 80.
    The defendants objecting to judgment, assume the burden of proving their objections. Durham v. People, 67 Ill. 414; Mix v. People, 86 id. 312.
    All objections that could have been urged at the confirmation of the assessment roll are waived. Blake v. People, 109 Ill. 504; Shultz v. People ex rel. 105 id. 27.
    Appearance by the owner, and entry of objections to judgment, are a waiver of defects in the notice, or lack of notice. Frew v. Taylor, 106 Ill. 159; People ex rel. v. Sherman, 83 id. 165; Hale v. People ex rel. 87 id. 72.
    The legality of the formation of the district can not be inquired into in this proceeding. The remedy is by quo wanranto. Blake v. People, 109 Ill. 504; Osborn v. People, 103 id. 224; Keigwin v. Drainage Comrs. 115 id. 347.
    The presumption is, that public officers concerned in the assessment and collection of taxes, have done their duty. Taylor v. People, 2 Gilm. 371; Jackson v. Cummings, 15 Ill. 451; Chiniquy v. People, 78 id. 574; Mix v. People ex rel. 81 id. 118; Job v. Tebbetts, 5 Gilm. 376; Buck v. People, 78 Ill. 510; Durham v. People, 67 id. 414; Frew v. Taylor, 106 id. 159; Beers v. People, 83 id. 488.
    Messrs. Moore & Warner, for the defendants in error:
    There is no such corporation as drainage district No. 1 in the town of Nixon. A de facto corporation must be proved. Shultz v. People, 105 Ill. 27; Osborn v. People, 103 id. 224.
    There was no assessment of taxes or benefits, no proof of the formation of such district, or of the levying of the tax.
    There was no report of said tax reported to the county treasurer, and the county treasurer not having any certified list of the delinquent lands, as prescribed by section 116, had no right to put the same on his list for judgment.
   Mr. Justice Shope

delivered the opinion of the Court:

But a single question is presented by this record: Was the evidence presented by the collector sufficient to authorize and support a judgment against the delinquent lands, in the absence of any countervailing testimony ?

The statute has made it the official duty of the county collector to make publication of the list of delinquent lands and lots, and of the time when application will be made for judgment thereon for delinquent taxes, and when sale will be made of lands against which judgment shall be obtained; and also to prepare and return into the county court, at a term named, a list of such delinquent lands and lots on which his application for judgment is based. What such lists shall contain and show, is specified by law; and as no objection is made in this case to the form or substance of the list or notice of application, etc., or to the list as returned, the legal presumption obtains, that the officer whose duty it was to make such list, publication and notice, and return the same into the county court, performed this duty according to law.

It is the doctrine of this court, repeatedly announced, that, under the statute, the collector’s sworn report of the list of delinquent lands, together with proof of publication thereof and notice of application, make a prima facie case, and that judgment is to be entered thereon, unless good cause is shown to the contrary, and that if there be any valid objections not appearing on the face of said delinquent list, notice, and proof of publication, it is for the land owner to point them out and make them appear. In this respect there is no difference between these special assessments and any other tax authorized by law. The collector having made a prima facie case, if there were irregularities, or valid reasons why this tax was not legally assessed, the burden was upon defendants in error to establish such irregularity or illegality. Durham v. The People, 67 Ill. 414; Karnes v. The People, 73 id. 274; Buck v. The People, 78 id. 560; Chiniquy v. The People, id. 570; Brackett v. The People, 115 id. 29; Mix v. The People, 81 id. 118; 86 id. 312; Fray v. Taylor, 106 id. 159.

Here, the land owners, defendants in error, offered no testimony whatever, either in support of their specific objection, or as tending in any way to impeach the validity of this special assessment. The collector was not bound to show that the tax was legally assessed, by proof, until the presumption created by his return of the delinquent list was overcome, and it was the manifest duty of the county court to have rendered judgment upon the collector’s report of delinquent lands, and proof of publication, as required by law. For its error in this regard, the judgment of the county court of DeWitt county is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Magruder

text:
    The Niagara Fire Insurance Company v. Elias J. Brown.

      Filed at Mt. Vernon January 20, 1888.

      Insubanoe—power of agent to waive conditions. An agent of an insurance company authorized to place insurance on property, collect the premiums, deliver policies, and sign with his own name and attach to policies, as he may think proper, a printed provision not contained in the body of the policy, requiring the insured to take an inventory once a year, and keep correct books of account, showing all purchases and sales, and to keep all inventories and books in a fire-proof safe, or other place secure from fire, during the time the store is closed for business, and declaring the policy void for non-compliance with such conditions, may waive such requirement afterwards, and the company will be bound by his waiver of the same.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Franklin county; the Hon. 0. A. Habkeb, Judge, presiding.

      Mr. William S. Cantrall, and Mr. Thomas Bates, for the appellant.
    Mr. F. M. Youngblood, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit brought by appellee against the appellant in the circuit court of Franklin county upon a fire insurance policy issued by the appellant company to appellee, insuring the latter to the amount of $1500 upon his stock of merchandise and store furniture and fixtures in a frame store in Mulkeytown. A jury was waived and the cause was tried by agreement before the circuit judge, who found the issues for appellee, the plaintiff below, and rendered judgment in his favor for $1500. This judgment has been affirmed by the Appellate Court and the case is brought before us by appeal therefrom.

The policy is dated August 24-, 1886, and is signed by the president of the company, attested by its secretary, and countersigned by James F. Mason as its “duly authorized and regular commissioned agent.” The negotiations with appellee in reference to the issuance of the policy were conducted by Mason, who accepted the risk, received the premium and delivered the policy. There was fastened to the policy by a brass pin a printed slip in the following words:

“It is a part of the consideration of this insurance, and it is expressly warranted, that the assured above named shall take an inventory of the stock above described, at least once a year, and shall also keep correct books of account in detail, showing all purchases and sales of the same, and shall keep all inventories and books in a fire-proof safe, or other place secure from fire, in said store, during the hours said store is closed for business, or this policy shall be void. It is also part of the consideration for this insurance, and the basis upon which the rate of premium is fixed, that in the event of loss this company .shall not be liable for an amount greater than three-fourths of the actual cash value of the property covered by this policy at the time of such loss; and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths value.

“This-slip being attached to policy number 5016 of the Niagara Fire Insurance Company of New York, issued at its Benton, Illinois, agency, forms a part of said policy.

(Signed) James F. Mason, Agent.”

It will be noted that the slip is signed by Mason alone and not by the president and secretary of the company.

, The store and the property insured were totally destroyed by fire on November 9, 1886. There is no dispute but that the cash value of the property insured, at the time of its destruction, was $2500, so that the amount of the recovery does not exceed three-fourths of the “actual cash value.”

The sole contention between the parties arises upon that portion of the foregoing provision, which requires the insured to “keep all inventories and books in a fire-proof safe, or other place secure from fire in said store, during the hours said store is closed for business.” It is admitted that appellee did not keep his inventories and books in a fire-proof safe, but kept them in a desk in the store.

Two questions are discussed by counsel. The first is a question of law, and has reference to the power of the agent, Mason, to waive the requirement contained in that portion of the printed slip, which is above quoted. The proof tends to show, that Mason attached the slip to the policy, and he seemed to have the right, in his discretion, either to attach it or leave it off. If he was clothed with a discretion to make the provisions contained in the slip a part of the policy or not as he should see fit, he certainly had the power to waive them after the slip was attached.

But, whether he had such discretion or not, we think that, if he waived the performance by appellee of the provision now under consideration, such waiver is binding upon the company. The proof tends to show that he was present in the store and saw the stock when the policy was issued; that he was also there on the Saturday before the Monday when the fire occurred, and made no objection to the risk as it then stood; that on both of these occasions he had notice that there was no fire-proof safe in the store. If he, also, before the delivery of the policy, stated to the appellee, as claimed by the latter, that the requirement in question would not be insisted upon but would be dispensed with, then surely the company is es-topped from declining to pay the loss on the ground of noncompliance with such requirement. Whatever may have been its secret instructions to Mason, the company, having authorized him to take the insurance, to collect the premium, to deliver the policy and to sign with his own name and attach the printed provision not contained in the main body of the policy, was bound by his waiver of the requirement in regard to keeping the inventories and books, if there was such a waiver. Reaper City Ins. Co. v. Jones, 62 Ill. 458.

The second question, which is brought to our attention, is whether the agent did or did not waive the provision requiring appellee to keep his inventories and books in the manner above stated. This is purely a question of fact, upon which the decision of the Appellate Court is final and not subject to review by us.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    John Lynch v. D. B. Jackson et al.

      Filed at Ottawa January 19, 1888.

    1. Appeal—whether a freehold is involved—6ill to redeem from mortgage. On a bill to redeem from a deed absolute in form, on the ground that it is a mortgage to secure a debt, the title to the mortgaged premises is not involved, and no appeal from the decree lies directly to this court in the first instance, but to the Appellate Court.
    2. Mortgage—separate defeasance. There is no difference, in law, whether the condition in a mortgage deed, upon which it is to become inoperative, is written in the body of the deed itself, or in a separate instrument executed at the same time, as a part of the same transaction, by the parties to the deed.
    Appeal from the Circuit Court of Kane county; the Hon. Isaac Gr. Wilson, Judge, presiding.
    Mr. B. G-. Montony, and Mr. A. C. Little, for the appellant.
    Mr. Charles Wheaton, and Mr. M. O. Southwobth, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

The hill in this case was brought by John Lynch, in the circuit court of Kane county, against D. B. Jackson, Andrew L. Jackson and Eva M. Norris, to redeem certain premises from what is alleged to be a mortgage, made by complainant to S. L. Jackson, since deceased, and for an account against the mortgagee in possession. On the hearing, the court dismissed the bill for want of equity, and complainant asked for and was allowed an appeal directly to this court, which he afterwards perfected by giving bond as required by the order of the court.

The bill is framed on the theory the deed made by complainant to S. L. Jackson, although absolute in form, is nevertheless a mortgage deed, subject to a defeasance written in a separate agreement, and executed at the same time, by the parties, as a part of the same transaction. There is no difference, in law, whether the condition in a mortgage deed upon which it is to become inoperative, is written in the body of the deed itself, or in a separate instrument executed at the same time, as a part of the same transaction, by the parties to the deed. On the theory on which the bill is framed,—that the deed from complainant to Jackson is only a mortgage,—it follows, the title to the mortgaged premises is not involved in the litigation, for the obvious reason the payment of the indebtedness secured, discharges the mortgage lien, and the appeal should have been taken, in the first instance, to the Appellate Court. Pinneo v. Knox, 100 Ill. 471.

The appeal will therefore be dismissed, with leave to withdraw the transcript of the record, together with the briefs and abstracts, for the purpose of filing the same in the Appellate Court, if it is desired by complainant to do so.

Appeal dismissed.


author: Mr. Justice Craig

text:
    Terrence J. O’Neil v. Peter J. O’Neil et al.

      Filed at Ottawa January 19, 1888.

    1. Lost note—whether the note was lost without being indorsed—a question for the court. In an action upon a lost note, the question whether the note was lost without being indorsed, is one for the court alone to determine, and with which the jury has no concern.
    2. Same—secondary evidence, to prove contents of lost note. Where the note sued on is shown to have been lost without having been indorsed by the payee, secondary evidence of its contents is admissible, and its contents may be shown by a chattel mortgage given to secure the same.
    3. Same—obligation upon lost note—non-production no ground to defeat a recovery. Where a note is lost, the obligation of the makers is not destroyed, but remains the same, and it may he enforced by an appropriate action. In such case it is not error to instruct the jury that the plaintiff, on proof of its contents, may recover without the production of the note.
    4. Same—limitation in action upon lost note—on proof of the original indebtedness. Where suit is brought on a lost note, the contents of which are proved, and evidence is admitted of the original indebtedness, some of the items of which accrued more than five years before suit, there will be no error in refusing leave to the defendants to file the plea of the five year limitation, as such plea could not avail.
    5. Where suit is brought on a lost note, and evidence is admitted of its contents and also of its original consideration, an instruction, in substance, that actions on unwritten contracts must be brought within five years after the cause of action accrues, is properly refused, as not being applicable to the facts of the case, the action being on a written contract.
    6. New tbial—newly discovered evidence which is merely cumulative. Where the newly discovered facts relied on for a new trial, so far as material, are merely cumulative, a new trial is properly refused.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. John N. Jameson, and Mr. A. B. Baldwin, for the appellant :
    The court erred in admitting evidence of the original consideration of the note. Either it was lost, or it was not. If not, no recovery could be had on the original indebtedness without producing the note, and surrendering it on the trial. Holmes v. DeCamp, 1 Johns. 34; 2 Daniell on Neg. Inst. sec. 1272.
    Instruction No. 1, for the plaintiff, was erroneous, as all the evidence in relation to the note was rejected, and appellees had been limited to proof of the original indebtedness.
    The court erred in denying leave to file a plea of the Statute of Limitations to the declaration. Its necessity did not arise until the ruling of the court excluding evidence of the note, and permitting appellees to prove the original indebtedness. Bank v. Gifford, 40 Barb. 659; McQueen v. Babcock, 3 Abb. App. 129; Misch v. McAlpine, 78 Ill. 508.

      Appellant’s third refused instruction, setting up the five year limitation, should have been given. Morgan v. Bishop, 61 Wis. 461.
    Mr. M. 3". Dunne, for the appellees:
    New trials will not be granted on newly discovered evidence merely cumulative, or not conclusive in its character. Smith v. Schultz, 1 Scam. 490; Railway Co. v. Seitz, 53 Ill. 452; Laird v. Warren, 92 id. 204; Dyer v. People, 84 id. 624; Harvey v. Collins, 89 id. 255.
    It was a matter of discretion to allow a new plea in the middle of the trial. Brown v. Burk, 66 Ill. 419; Fisher v. Green, 95 id. 94.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court, affirming a judgment of the circuit court of Cook county. The action was assumpsit, brought by Clara J. O’Neil, against Patrick and Terrence J. O’Neil. The declaration contained only the common counts, to which defendant Terrence J. O’Neil pleaded the general issue. Before the case was reached for trial, Clara J. O’Neil died, and her executors, the appellees, were substituted as plaintiffs. After the executors were made parties, they obtained leave of court to amend the declaration, and filed two special counts,—one on a note for $1330.13, alleged to have been executed by the defendants on the 19th day of November, 1875, payable to the order of Clara J. O’Neil one year after date, with interest at the rate of ten per cent per annum. The other count was on a chattel mortgage executed by the defendants to Clara J. O’Neil, of same date of the note for $1330.13, due in one year from the date thereof, with interest at ten per cent per annum, upon certain chattels in the National Hotel at Joliét. The defendant Patrick O’Neil failed to plead to the declaration, and judgment was rendered against him by default; but Terrence J. O’Neil, the other defendant, pleaded to the amended declaration the general issue, payment, that the supposed promises were made without consideration, that the promises were for the debt of another, and not in writing, and the ten years’ statute of limitations. Eeplications were put in to the several pleas, upon which issue was formed. On the trial of the cause, the plaintiffs, not being able to produce in evidence the promissory note declared on in the declaration, made proof tending to establish the loss of the note, and offered secondary evidence of its contents. The court, however, refused to admit the evidence, but decided that the plaintiffs might prove the original indebtedness for which the note was given. The plaintiffs then introduced evidence of the original indebtedness for which the note was given, but before the evidence was concluded the defendant moved the court for leave to file a plea of the statute of limitations of five years, which the court denied, and the defendant excepted.

If the note set out in the special count of the declaration was lost, and had never been indorsed by the payee, as the evidence before the court seemed to establish, we see no reason why secondary evidence of the contents of the note was not admissible; but as no cross-errors have been assigned, the decision of the circuit court on that question is not properly before us on this record. Nor do we find it necessary to determine whether the decision of the court refusing leave to file a plea of the statute of limitations of five years was, under the circumstances, correct or erroneous. Some of the items of the original indebtedness for which the note was given may have accrued more than five years before the bringing of plaintiff’s action, but the verdict and judgment did not rest on the proof of the original indebtedness. One count of the declaration, as said before, was predicated on a chattel mortgage executed by the defendants to Clara J. O’Neil, bearing date November 19,1875. This document was read in evidence by the plaintiffs, without objection by the defendants, and it was evidence from which the jury might find, in connection with the other evidence, that defendants were indebted to Clara J. O’Neil in the sum of $1330.13 on the 19th day of November, 1876, with interest at the rate of ten per cent from the 19th day of November, 1875. In addition to the mortgage, Patrick O’Neil, one of the defendants, testified that he and the other defendant executed the mortgage; that it was given for borrowed money; that at the time the papers were executed they were indebted to Clara J. O’Neil in the sum of $1330.40. The witness also testified that Clara J. O’Neil had received from the proceeds of the mortgaged property $580, and there was $40 paid afterwards, in April, 1877; that no other payments were made, to his recollection. Disregarding all evidence introduced by the plaintiff, in regard to the original consideration of the note, here was proof upon which the jury might find, in favor of the plaintiffs, the amount specified in the verdict; and the plea proposed to be filed in view of this evidence would have presented no defence to the action, and the decision of the court in denying leave to file the plea, in no manner injured the defendant, and he has no just ground of complaint.

It is next claimed that the court erred in giving plaintiffs’ instruction No. 1 to the jury, as follows:

“The court instructs the jury, if they believe, from the evidence, that said defendants borrowed money from the said Clara J. O’Neil, in her lifetime, and that a note was executed by said defendants and given to her, for such indebtedness, and further believe, from the evidence, that said Clara J. O’Neil died without having indorsed or transferred said note, and that said note is lost and can not be produced, and that said plaintiffs are the executors of said Clara J. O’Neil, and have never indorsed or transferred said note, and that the same has not been paid in full, then the fact that said note has not been produced on the trial will not defeat a recovery by the plaintiffs in this suit.”

The objection to the instruction, that it was misleading, we do not regard as tenable. Whether the note had been lost ■without being indorsed by the payee, was a question for the court to determine—one with which the jury had no concern; and when the court determines, from the proof offered on that point, that the instrument sued on was not indorsed, and had been lost, then the contents of the instrument might be proven before the jury, and upon such evidence the jury might find a verdict for the amount due upon the lost instrument, as its terms, amount and condition might be proven by secondary evidence. While it is true that the inference may be drawn, from the instruction, that certain matters were submitted to the jury which were for the court, yet the real object of the instruction, as is apparent from its reading, was to inform the jury that the plaintiffs might recover although the note had not been produced. That the instruction was correct on this point will not admit of reasonable controversy. Where a note is lost, the obligation of the parties is not destroyed, but remains the same, and that obligation may be enforced by an appropriate action. It is true that a copy of the note offered in evidence was ruled out, but there was ample other evidence before the jury, establishing the contents of the note, upon which a verdict might be predicated. Under such circumstances we do not think it was error for the court to direct the jury that the fact that the note was not produced would not defeat a recovery.

It is also claimed that the court erred in refusing his third instruction, which was, in substance, that actions on unwritten contracts should be commenced within five years after the cause of action accrued. In a proper case the instruction might have been given, but under the facts of this case it was liable to mislead. This action was on a written contract, and the five years’ statute of limitations had no application to the facts as established by the evidence.

The second instruction given for the plaintiffs has been criticized, but we see no substantial objection to it.

It is also claimed that the defendant was entitled to a new trial on newly discovered evidence, and the court erred in denying the motion made for that purpose. Many of the facts set up in the affidavits we do not regard as material, but, so far as the facts relied upon seem to be competent, they are in the main cumulative, and upon this ground the decision of the circuit court may be sustained.

Other questions have been raised, but we do not regard them of sufficient merit to call for a discussion here.

After an examination of the whole record, we do not think the circuit court committed any substantial error against the rights of the defendant, and we see no ground for reversing the judgment of the Appellate Court.

The judgment will be affirmed.

Judgment affirmed.