Johnson et al. v. People.

A. GARRISON, for Plaintiffs in Error.

W. BUSHNELL, District Attorney, for the People.

WALKER, J. This was an indictment presented against the plaintiffs in error, which charged that "wickedly and unjustly devising and intending one Joshua B. Casey to defraud and cheat of his goods and property, they did then and there falsely and fraudulently conspire, combine, confederate and agree together among themselves to get and obtain, knowingly and designedly, by false pretenses, of the said Joshua B. Casey, one horse, of the value of six hundred dollars," with the intent to defraud and cheat him of the same. To this indictment the defendants filed a demurrer which was overruled by the court. Defendant Backus then entered a motion upon an affidavit filed for a continuance, and also filed an affidavit and entered a motion for a separate trial. The record fails to disclose any disposition of either of these motions. The defendants were then put upon trial, which resulted in their conviction. The record fails to disclose any arraignment or any plea by the defendants. Whether this is an omission of the clerk in making the transcript of the record, which may be probable, from the manner in which it seems to have been prepared, or was omitted by the court, we are unable to determine.

The first question presented is whether the court erred in overruling the demurrer to the indictment. Our statute has declared it to be an offense to obtain goods by false pretenses. And "undoubtedly, as obtaining goods by false pretenses, is a statutory misdemeanor, conspiracies to effect them are indictable." Whart. Crim. Law, 674. This is the common law rule, and brings this indictment clearly within the provisions of the 169th sec., chap. 30, R. S. 182, which provides that all offenses not enumerated in that chapter, shall be punished by fine and imprisonment, in the discretion of the court, limiting the fine to not more than one hundred dollars, and the imprisonment to not exceeding six months.

It is likewise insisted that the offense is not sufficiently charged. That the means intended to be employed for the purpose of obtaining the property, are not specified in the indictment, and do not show an indictable offense. No judge ever doubted that a conspiracy to cheat is an offense, as much as a conspiracy to commit larceny, robbery or other crime. The means agreed to be employed by defendants in such cases, may never have been disclosed, and could not therefore be stated, and yet the offense would be complete, and may be proven by overt acts, and other circumstances. The very nature of the offense

Johnson et al. v. People.

would as a general thing, render it impossible for the prosecutor to ascertain and prove the means, agreed to be employed. We think the charge contained in this indictment, clearly describes an offense at the common law, and that the demurrer was properly overruled. The doctrine seems to be settled in England, that if a defendant demur to an indictment for a misdemeanor, and the demurrer be overruled, judgment of conviction is rendered, but in felonies the rule is different. 1 Chit. Crim. Law, 442; Whart. Crim. Law, 187. But in this case the defendants were put upon trial, and the right to final judgment on the demurrer, was waived.

The 181st section of the Criminal Code (Scates' Comp. 407), provides that upon the arraignment of a prisoner, it shall be sufficient without any other form, for him or her to declare orally, by himself or herself, or his or her counsel, that he or she is not guilty; which plea the clerk is required to immediately enter on the minutes of the court, and the mention of the arraignment and such plea, shall constitute the issue between the People and the prisoner, and if the clerk should neglect to insert in the minutes of the court, the arraignment and plea, it provides that it shall be done under the order of the court, and then the error or defect shall be cured. The arraignment and plea has always by the practice in cases of felonies, been regarded as essential to the formation of the issue, to be tried by the jury, but in cases of misdemeanor the practice allows the plea of not guilty to be entered without arraignment and may be entered by counsel. But it is believed that the practice is uniform, both in England and this country, in requiring the formation of an issue to sustain a verdict. Without it there is nothing to be tried by the jury. If the record had shown that the trial was by consent, in the case of a misdemeanor, it might be held to cure the defect, but when the trial does not appear to have been so had, no such intendments can be indulged. Or in case there had been a plea entered, and the clerk by an omission of his duty, had failed to enter it upon the record, the prosecuting attorney might have cured the defect by procuring such an entry under the order of the court. But the statute has provided for no other mode of obviating the objection, and unless waived by the defendant, it must be held to be error. In this case the error has not been cured by either of these modes, and the judgment should have been arrested for the want of such plea.

The plaintiff in error, Backus, urges a reversal because the court refused to award to him a separate trial, on his motion for the reasons stated in his affidavit. We are aware of no reported case of any court, which has ever held that it is error to refuse a severance in the trial of a criminal case. The right is dis

Boilvin et al. v. Moore et al.

cretionary with the court, to be exercised as all other matters of discretion. United States v. Merchant, 12 Wheaton, 480. Being a matter of sound discretion in the court below, we have no right to revise its decision in refusing a separate trial to this plaintiff in error.

No objection is perceived to either the giving or refusing the various instructions asked, nor in the modification to the defendant's ninth instruction. The prosecution was for a conspiracy to obtain goods by false pretenses and not for having so obtained them. And the instructions fairly present the law as applicable to the evidence on the charge for which the defendants were tried.

The judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.

WILLIAM C. BOILVIN et al., Appellants, v. HENRY MOORE et al., Appellees.

APPEAL FROM PEORIA.

Where goods are erroneously shipped to a fictitious person, and after remaining unclaimed, are sold by the warehousemen, the surplus proceeds, after paying charges, belong to the shipper.

THIS was an action of assumpsit. Declaration contained common counts. Plea, general issue. Cause tried before POWELL, Judge, without jury, and judgment for appellees, of $291.83.

Edward B. Norton testified, that he was clerk for plaintiffs, who were manufacturers of nails at Wheeling, Virginia, and that on the 29th March, 1855, plaintiff's shipped a lot of nails to John W. King, Peoria, by steamboat; the invoice was enclosed in a letter and sent by mail; with the invoice was a bill of lading and draft upon King for his acceptance at six months. John W. King nor any one else ever offered to pay for the nails. Plaintiffs again wrote King, demanding payment October 11th, 1855. They received no reply, and wrote to King again December 8th, 1855, all directed to John W. King, Peoria, Ill. No reply was ever received to any of these letters.

Edward M. Norton testified, that as agent of plaintiffs he personally sold the nails specified in order in Peoria, Illinois, to a man as I supposed, from the manner in which his name was

Boilvin et al. v. Moore et al.

written, by the name of John W. King. I had no personal acquaintance with him. I took orders from all sorts of persons without personal acquaintance, confining myself to inquiries as to their ability to pay, and looking to the orders I receive for the name of the party and place of shipment. I presented the order to plaintiffs, who filled it and shipped to Peoria. The order was given February 1, 1855, delivered to plaintiffs February 14, 1855, and the nails were shipped March 29, 1855. The signature at bottom of order is in the handwriting of the party who gave the order; whether it is Hing, or Sting, or some other name, I cannot say. I know the party was a dealer in Peoria, and I took the order from himself personally at his own store. No payment for the nails was ever made.

The following facts were admitted: That plaintiffs sent an order upon defendants to M. McReynolds, for the nails, in spring of 1856, which order was not accepted. That no such person as John W. King has been known to reside in Peoria, either at date of the order or since. That the nails were never received by King, but were received by defendants, who were warehousemen in Peoria, from the steamboat Tiber, in April, 1855, in store for the consignee, and charges paid by defendants at time of receiving them. That the nails remained in store until spring of 1856, when they were sold to pay charges-sold for $425, and charges on them, $133.17. That defendants had no authority from, or ever saw or knew, John W. King, but the nails were left with them by steamboat Tiber, together with bill of lading. That no persons except plaintiff's have ever demanded the nails or the proceeds thereof.

MANNING & MERRIMAN, for Appellants.

BRYAN & STONE, for Appellees.

BREESE, J. This is a very plain case, one in which the doctrine of stoppage in transitu, or of conditional sales, has nothing to do. All the facts show, that the nails were shipped to Peoria to a fictitious person-one having no existence there, and remained in the appellant's warehouse until they sold them, uncalled for by the party in whose name they were shipped or any other person by his authority. The agent mistook the signature to the order for the nails, and hence being sent to a fictitious address, the title never passed out of the vendorsthe plaintiffs below. They had a perfect right to recover the balance of the proceeds of the sale after deducting the charges upon them. It would be iniquitous that the appellants should

Boomer, impl., etc., v. Cunningham et al.

have the proceeds, their claim for warehousing and other expenses being fully satisfied. The judgment of the Circuit Court is affirmed.

Judgment affirmed.

LUCIUS B. BOOMER, impleaded with the Kankakee Bridge Company, Plaintiff in Error, v. ROBERT J. CUNNINGHAM et al., Defendants in Error.

ERROR TO WILL.

A bill cannot be sustained to enforce an agreement by a debtor, to pay one creditor in preference to others, where such creditor has no greater right than others, to

such funds.

ROBERT J. CUNNINGHAM, John McIntosh, and Henry Wilson, administrators of Richard L. Wilson, deceased, filed their bill in chancery in the Circuit Court of Will county, against the Kankakee Bridge Company, Lucius B. Boomer, A. B. Stone and George A. Gray, John S. Smiley, Samuel Carr, John Leich, the collectors of the towns of Wilmington, Essex, Reed and Norton, Charles H. Weeks and David Perry, county treasurers of the counties of Will and Kankakee, setting forth that on or about the 13th day of June, 1856, Robert J. Cunningham, John McIntosh and Richard L. Wilson, then living, entered into and signed a contract in writing, with the Kankakee Bridge Company, then composed of H. Kerney, supervisor of the town of Essex, Richard Warner, supervisor of the town of Reed, and John J. Camp, supervisor of the town of Wilmington; which corporation was created by an act of the legislature of the State of Illinois, approved February 15, 1855, for the purpose of building a bridge across the Kankakee river at Wilmington. That by said contract, Cunningham, McIntosh and Richard L. Wilson undertook to clear the bed of the river, furnish the materials, and erect two piers and two abutments for a highway bridge across the Kankakee river, describing particularly the manner in which said abutments and piers were to be constructed.

etc.

The bridge was to be completed before November 1, 1856. The company reserved to itself the right to alter or change the specifications in regard to the size of the abutments and piers, The company were to pay for mason work and materials delivered and laid up in said piers and abutments, upon monthly estimates, reserving therefrom twenty per cent. until the work should be completed.