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periods of about 20 days in each month from April, 1903, to December, 1904. There is therefore no question but that the plaintiff in error was properly convicted, if the taking of gas in the manner above described constitutes the crime of larceny, and no reversible error was committed on the trial.
John E. W. Wayman and Elijah N. Zoline, for plaintiff in error. W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Frank Crowe, of counsel), for the People.
HAND, J. (after stating the facts). The first contention made by plaintiff in error is that the offense made out against him by the evidence falls within the special statutory crime created by section 117 of the Criminal Code (1 Starr & C. Ann. St. [2d Ed.] par. 234, c. 38, p. 1288), and not under section 167 of the Criminal Code (Starr & C. Ann. St. [2d Ed.] par. 305, c. 38, p. 1316) which defines the crime of larceny, and that he should have been prosecuted for a violation of said section 117, and not for the crime of larceny. We do not agree with such contention. The law is well settled that gas used for illuminating and heating purposes may be the subject of larceny. Commonwealth v. Shaw, 4 Allen (Mass.) 308, 81 Am. Dec. 706; State v. Wellman, 34 Minn. 221, 25 N. W. 395; Regina v. White, 6 Cox C. C. 213. In the Shaw Case it was said (page 309, 4 Allen [81 Am. Dec. 706]): "There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of merchandise, bought and sold like other personal property, susceptible of being severed from a mass or larger quantity and of being transported from place to place. In the present case it appears that it was the property of the Boston Gas Light Company; that it was in their possession by being confined in conduits and tubes which belonged to them, and that the defendant severed a portion of that which was in a pipe of the company by taking it into her house and there consuming it.
All this, being proved to have been done by her secretly and with an intent to deprive the company of their property and to appropriate it to her own use, clearly constituted the crime of larceny."
Section 117 of the statute above referred to does not undertake to punish a person who unlawfully abstracts gas from the pipes of a gas company, but that section of the statute was passed with a view to protect gas, water, or electric meters from being tampered with or false connections being made with gas or water pipes or electrical conductors, so that gas, water. or electricity might be consumed or utilized without passing through or being registered by a meter. meter. The crime of larceny and the crime created by that section of the statute are therefore entirely separate and distinct offenses, and the doctrine announced in Stoker v. People, 114 Ill. 320, 2 N. E. 55, and kindred cases
relied upon by plaintiff in error has no application to the case at bar. The plaintiff in error might have been guilty of a violation of said section 117 without obtaining any gas from said light and coke company. The two offenses are not the same, and the evidence which would support a conviction for a violation of said section 117 of the statute would not necessarily even tend to show the plaintiff in error guilty of larceny. The trial court did not, therefore, err in holding that the plaintiff in error was not entitled to his discharge on the ground that he was being prosecuted for the wrong offense.
It is next contended that, conceding the plaintiff in error was guilty of larceny, the evidence does not show him to be guilty of grand larceny, as it is said there is no evidence in the record that the value of the gas converted by him to his own use at any one time exceeded in value the sum of $15. The correctness of this contention depends upon whether the evidence shows the plaintiff in error to have been guilty of a continuing offense. If the gas abstracted on each day is a single and complete offense then the contention of the plaintiff in error would be correct, as the evidence failed to show that more than $15 worth of gas was consumed at 3947 Michigan avenue during any one day while the plaintiff in error was in possession of said premises. On the contrary, however, if it be the law that all the gas which was consumed by the plaintiff in error during any one period while the service pipes of said light and coke company were connected with the burners in said building by said rubber hose or the concealed pipes should be treated as one continuous taking, then clearly the evidence shows the plaintiff in error to have been guilty of grand larceny. In 2 Bishop on Criminal Law (7th Ed.) p. 799, it is said: "Illuminating gas may be the subject of larceny; and the asportation is sufficient where the prisoner, receiving gas of a gas company, diverts some of it to his burners without its passing the meter to be measured, the means employed being to use a pipe running directly from the entrance to the exit pipe. While the pipe remains thus connected there is held to be one continuous taking."
The above statement of the law is based mainly upon Regina v. Firth, L. R. 1 C. C. 172, which was an indictment for larceny for abstracting gas from a gas main by means of a pipe which drew off the gas from the main without allowing it to pass through the meter. The prisoner had for several years supplied a portion of his manufactory with gas which was thus abstracted, and it appeared' the gas obtained was burned during the day at a large number of burners and was turned off at night. It was ruled there was but one taking, and therefore but one offense. In support of that conclusion the learned judge who delivered the opinion referred to Regina v. Bleasdale, 2 Carr. & Kir. 765, as a clear authority on the point, in which case
the prisoner was indicted for stealing coal from the mines of a number of different landowners. The taking of the coal had continued for a number of years, and all the coal was taken through one shaft, and it was objected that there were a number of different takings and that the charge should be restricted to one special act. Erle, J., held that the taking was one continuous act. Also Regina v. Sheperd, 1 C. C. Res. 117, was referred to, where the question was whether damage done by the prisoner to a number of trees should be considered as one single act. The question was left to the jury, who found the act was continuous. The prisoner was convicted and the conviction was affirmed. The writer of the opinion further illustrated his view that the taking was a continuous one, by the following illustrations: He said: "Take the case of a granary at a railway station, and a man bringing two wagons close to the granary and taking sacks from time to time, and extending this taking over four or five days. Here there would be different takings at different times, but it would be impossible to treat the taking otherwise than as one continuous act. Another case might be suggested of a man at work in a house, stealing, on different days, out of different rooms, and taking one article out of one room and another out of another at intervals of a quarter of an hour or an hour, or longer, all during the same job of work. I should rather suppose that this would be one continuous act and might be included in one indictment."
The trial court in this case instructed the jury "that if they believe from the evidence beyond a reasonable doubt, that the defendants, or either of them, are guilty of stealing gas as charged, and that they, or either of them, had been stealing gas for any number of days continuously prior to the 14th day of December, 1904, in fixing the value of the property stolen you may add together the various values of the amounts of gas stolen from day to day during the time preceding the discovery of the false connections, if any, on the 14th day of December, that such takings from day to day were continued. That is, you may judge, from all the surrounding facts and circumstances as shown by the evidence, how long the said gas, if any, had been unlawfully taken through said false connections prior to the 14th day of December continuously, and you may add together the total sum of the various amounts taken on the different days continuously before the said 14th day of December."
This instruction left the question of whether the taking was continuous, and from day to day, to the jury, and authorized them, in fixing the value of the stolen property, in case they found the taking was continuous and from day to day, to add together the various amounts taken on the different days continuously before the 14th day of December, under which instruction the jury found the 78 N.E.-39
plaintiff in error had continuously taken gas to an amount in value in excess of $15. We are of the opinion the findings of the jury were amply supported by the evidence, and that they were not misdirected as to the law by the court.
It is finally contended that the court erred in directing the jury that in fixing the value of the gas stolen, if any, they should be guided by the selling price of the gas in question to consumers in the district in which the gas was abstracted, and not by the cost value of the material from which the gas was made. We are of the opinion the court did not err in so instructing the jury. The ordinary test of the value of property is the price it will command in the market if offered for sale, which in this case was the selling price of gas to consumers in the vicinity where the plaintiff in error wrongfully converted the gas of the light and coke company to his
Finding no reversible error in this record, the judgment of the criminal court of Cook county will be affirmed. Judgment affirmed.
(222 I11. 325.)
McDONALD v. PEOPLE, to Use of BROWN et al.
(Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 10, 1906.)
1. TRIAL-SHORT-CAUSE CALENDAR-AFFIDA
Where plaintiff's attorney executed an affidavit reciting that he verily believed the cause could be tried in an hour, and filed the same in the office of the clerk of the circuit court, and the only evidence tending to impeach the same as an original affidavit was a recital in a notice to defendant's attorney, signed by plaintiff's attorney, and attached to the affidavit filed, that on March 21, 1904, affidavit, "of which the foregoing is a copy," copy," was filed with the clerk of said court, a finding that the original affidavit, and not a copy. was filed, was justified.
In an action on an administrator's bond, a plea of nil debet was improper, and an unverified plea of non est factum was insufficient to justify the admission of evidence to sustain the same.
[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Bonds, §§ 181, 182.]
3. TRIAL-SHORT-CAUSE CALENDAR - ISSUES. Where, in a suit on an administrator's bond, a plea of nil debet and an unverified plea of non est factum were unavailable, the fact that a demurrer to the first plea, and a motion to strike the second from the files, had not been disposed of at the time the cause was noticed for trial on the short-cause calendar, was no ground for striking the same from the calendar, under circuit court rule 23, providing that no cause should be noticed for trial on the short-cause calendar until the same was at issue.
4. SAME-MOTION TO STRIKE-TIME.
Where a notice to place a cause on the short-cause calendar for trial, was served March 21, 1904, and the cause was placed on such calendar 10 days later, and the trial took place May 16th, a motion to strike the cause
Hurd's Rev. St. 1903, c. 3, § 115, provides that if an administrator fails to pay over moneys or dividends to any person entitled thereto, pursuant to an order of the county court lawfully made within 30 days after demand, the court may attach such administrator and cause him to be imprisoned until he shall comply with the order or be discharged by due course of law, and that on such failure or refusal the administrator shall be deemed guilty of a devastavit, and an action on his bond and against his sureties may be forthwith instituted, etc. Chapter 103, § 13, declares that whenever the condition of the bond of a public officer shall be violated, suit may be instituted thereon against such officer, and his sureties jointly or severally, without establishing the liability of the principal, and that such section shall extend to the official bonds of administrators. Held, that a demand made against an administrator 30 days before action brought, was not essential to the maintenance of such action against the administrator and his sureties for a devastavit.
An order of the county court approving an administrator's account, and charging him with interest at 10 per cent. on the amount belonging to the estate remaining in his hands more than two years and six months from the date letters of administration were taken out, as authorized by Hurd's Rev. St. 1903, c. 3, § 114, which amount should have been paid to the attorney for the estate, and the distributees, was conclusive against the administrator and his sureties in a suit on the administrator's bond, unless impeached for fraud.
8. SAME-LIABILITY OF SURETIES-INTEREST.
Where an administrator was properly charged with interest on moneys retained in his possession, such interest_constituted a proper charge against his bondsmen in an action on his administration bond.
9. SAME ALLOWANCE TO ATTORNEY.
An order in proceedings for the allowance of an administrator's account, awarding the administrator's attorney the sum of $310, and directing the administrator to pay the same within five days out of the funds of the estate in his hands, did not increase the burden of the administrator or his bondsmen; the funds being otherwise payable to the distributees of the estate.
10. SAME-ORDER OF DISTRIBUTION-COLLATERAL ATTACK.
A judgment approving an administrator's account, and ordering the amount in his hands to be distributed, cannot be reviewed or set aside in an action on the administrator's bond, unless the finding of the probate court is impeached for fraud.
11. NEW TRIAL NEWLY DISCOVERED EVIDENCE-DILIGENCE.
Where, in a suit on an administrator's bond for a devastavit, defendants pleaded that a certain loan alleged to constitute such devastavit had been made by the administrator with the consent of the distributees for whose use the suit on the bond was brought, and, though the administrator was a witness at
the trial, and testified concerning his accounts, he was not asked whether the loan was made with the consent of the distributees, defendants were thereby guilty of a lack of diligence precluding them from obtaining a new trial for newly discovered evidence, on the ground that five days thereafter the administrator testified, to defend himself in a criminal prosecution, that such consent was given.
Appeal from Appellate Court, First District. Action by the people, for the Use of Amanda C. Brown and others, against Michael C. McDonald. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.
Edward Maher and Robert F. Kolb, for appellant. W. B. Wilson, for appellee.
HAND, J. This was an action of debt commenced in the circuit court of Cook county, in the name of the people, for the Use of Amanda C. Brown, Luna R. Rainey, Annie L. Stauffer, Billy Brown, and James R. Glass, against John G. Brown, as principal, and Michael C. McDonald and George V. Hankins, as sureties, upon an administrator's bond given by John G. Brown, as administrator of James M. Brown, deceased. George V. Hankins was not served with process, and John G. Brown was defaulted, and upon a trial a verdict for $50,000 debt and $20,627.53 damages was returned in favor of the plaintiff under the direction of the court, upon which verdict, after overruling a motion for a new trial, the court rendered judgment in favor of the plaintiff, against Brown and McDonald, from which judgment McDonald perfected an appeal to the Appellate Court for the First District, where the judgment of the circuit court was affirmed, and a further appeal has been prosecuted to this court.
Four reasons are urged as grounds of reversal in this court: First, the cause was improperly tried upon the short-cause calendar; second, the suit was prematurely brought; third, the interest and attorney's fees contained in the administrator's report offered in evidence were improperly included in the judgment; and fourth, the trial court erred in refusing to grant a new trial to the appellant on the ground of newly discovered evidence.
It is first contended that the court erred in refusing to strike the case from the short-cause calendar, on the ground that a copy of the original affidavit that the attorney for the plaintiff verily believed the trial of said suit would not occupy more than one hour, and which was the basis for placing said cause upon the short-cause calendar, was filed in the office of the clerk of the circuit court instead of the original affidavit. The question whether the original affidavit or a copy thereof was filed in the office of the clerk of the circuit court was a question of fact. It appears that an affidavit that he verily believed the trial of said cause would not occupy more than one hour's
time, signed by Warren B. Wilson, one of the attorneys for the plaintiff, and which was sworn to by said Wilson on March 21, 1904, before James R. Glass, a notary public, whose jurat was attested by his notarial seal, was filed in the office of the clerk of said court on March 21, 1904. This affidavit was in due form, was signed and sworn to by the attorney for the plaintiff, and was properly attested by the notary's signature and official seal, and the only evidence tending to impeach said affidavit as an original affidavit was a recital in a notice to the attorneys of appellant, signed by the attorney for the plaintiff, which was attached to the affidavit filed, that on March 21, 1904, an affidavit, of which "the foregoing is a copy," was filed in said court with the clerk of said court. The affidavit which was filed, it is apparent, notwithstanding the recital in said notice, was the original affidavit and not a copy, and we think the trial court did not err in so holding.
It is also urged the trial court erred in declining to strike the case from the shortcause calendar, on the ground it was placed upon that calendar in violation of rule 23 of the circuit court, which provides: "No cause shall be noticed for trial on the short-cause calendar until the same is at issue." McDonald filed 10 pleas. The first was nil debet; the second, non est factum, not sworn to. Four of the remaining eight were pleas of performance, two of nul tiel record, one of non damnificatus, and the last, that Brown did, with the advice, consent, and connivance of the parties for whom suit was brought, convert the money coming into his hands as administrator to his own use. To the pleas concluding to the country, except the first and second, the plaintiff filed a similiter and traversed and took issue on the others. To the plea of ni debet a general demurrer was filed, and a motion was made to strike the plea of non est factum from the files. The demurrer to the first plea and the motion to strike the second plea from the files were not disposed of at the time the cause was noticed for trial on the short-cause calendar. The first plea was not a proper plea (Chipps v. Yancey, Breese, 19; Zepp v. Hager, 70 111. 223; Mix v. People, 92 Ill. 549; McNamara v. People, 183 Ill. 164, 55 N. E. 625) and was vulnerable to the demurrer, and no evidence could be admitted under the second plea (Mix v. People, supra). The first and second pleas, although not formally disposed of upon the record, did not, we think, prevent the case from being at issue, within the meaning of said rule 23, at the time it was noticed for trial upon the short-cause calendar (Ryan v. People, 165 Ill. 143, 46 N. E. 206), as the failure to dispose of said pleas did not affect, in any degree, the proof required of the plaintiff to make out its cause of action, or the evidence admissible for the defendants to defeat the cause of action. In any event, the motion to strike the cause from the
short-cause calendar came too late. The notice to place the case on the short-cause calendar was served March 21, 1904, the case was placed upon the short-cause calendar 10 days later and the trial took place on May 16th following, and the motion to strike the case from the short-cause calendar was not made until the case was called for trial. A motion to strike a case from the short-cause calendar is a dilatory motion and should be made at the first opportunity. This was not done, but the case was permitted, without objections, to remain upon the short-cause calendar until it was reached for trial.
It is said, however, that the motion made on May 16th was but the renewal of a motion of like character which had been made on May 12th before a judge other than the judge who tried the case, and overruled, and that the first motion made to strike the case from the short-cause calendar was made in ample time. The record fails to show a motion to strike the case from the short-cause calendar was made and disposed of on May 12th. The recital of that fact in the record made by the clerk is not sufficient. A motion, and the action of the court thereon, must be preserved by bill of exceptions. Fonville v. Sausser, 73 Ill. 451; Gaynor v. Hibernia Savings Bank, 166 Ill. 577, 46 N. E. 1070. We think the record fails to show that the case was not properly tried upon the short-cause calendar.
It is next contended that under section 115 of the administration act a cause of action did not accrue to the plaintiff in this case upon the administrator's bond of John G. Brown until 30 days after a demand had been made upon said Brown to pay over to the distributees the amount found to be due them, respectively, by the order of the probate court of Cook county, and that for the want of a lapse of said 30 days between the date of the demand on Brown to the date of suit the action was prematurely brought. Said section (Hurd's Rev. St. 1903, c. 3, § 115, p. 124), reads: "If any executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court, lawfully made, within 30 days after demand made for such moneys or dividend, the court, upon application, may attach such delinquent executor or administrator, and may cause him to be imprisoned until he shall comply with the order aforesaid, or until such delinquent is discharged by due course of law; and moreover, such failure or refusal on the part of such executor or administrator shall be deemed and taken in law to amount to a devastavit, and an action upon such executor's or administrator's bond, and against his securities, may be forthwith instituted and maintained; and the failure aforesaid to pay such moneys or dividend, shall be a sufficient breach to authorize a recovery thereon."
That section is divisible into two parts.
It provides first for the imprisonment of an executor or administrator in case he fails or refuses to pay over any moneys or dividend to any person entitled thereto, pursuant to the order of the county court, within 30 days after demand; also for a suit upon the bond of such executor or administrator to recover any moneys or dividend found by the court to be due from such executor or administrator to any person entitled thereto. the first instance the executor or administrator cannot be attached and imprisoned for a failure to obey the order of the county court to pay any moneys or dividend in his hands until after 30 days have elapsed after a demand has been made upon him to comply with the order of the court. In the second case provided for by that section of the statute it is not necessary that a demand be made upon an executor or administrator to pay any moneys or dividend, in accordance with the order of the court, before a suit can be maintained against him and his bondsmen upon his administrator's bond, or that a period of 30 days elapse between a demand and the day of bringing suit upon such bond. The part of that section last referred to provides that in case an executor or administrator shall fail or refuse to pay over any moneys or dividend to any person entitled thereto, in pursuance of the order of the county court, an action upon such executor's or administrator's bond, and against his sureties, may be forthwith instituted and maintained, and the failure aforesaid to pay such moneys or dividend shall be a sufficient breach to authorize a recovery thereof. It is also provided by section 13 of chapter 103, entitled "Official Bonds," that "whenever the condition of the bond of any public officer shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against such officer, and any or all of the sureties, or against one or more of them, jointly and severally, without first establishing the liability of the principal by obtaining judgment against him alone. The provisions of this section shall extend to the official bonds of executors, administrators, guardians and conservators, and in suits thereon it shall not be necessary to a recovery that a devastavit should have previously been established against the principal."
We think it clear, under the foregoing provisions of section 115 of chapter 3, and section 13 of chapter 103 of the Revised Statutes, which must be construed together, this suit was not prematurely brought. The probate court of Cook county, on an accounting in that court, found the amount due by John G. Brown, as administrator of James M. Brown, deceased, to the distributees for whose use this suit was brought, and ordered said amount paid to said distributees, respectively, by him, as such administrator, within five days. Demand for
payment was made upon him as such administrator, and he failed and refused for more than five days to comply with the order of the court by making said payments, whereupon suit was brought against him and his bondsmen upon his administrator's bond. To hold that a demand must be made upon an executor or administrator, in every instance, that he pay over to the person entitled to receive the same any moneys or dividend found to be due such person by the court in which the estate of which he is executor or administrator is pending, and that a suit cannot be maintained against him or his sureties upon his official bond until after a period of 30 days from such demand has elapsed, would be to abrogate the statute. and in some instances to entirely defeat a recovery upon an executor's or administrator's bond, as, for instance, where a defaulting executor or administrator had absconded or was dead, and by reason of either of those conditions a demand could not be made. We are of the opinion the suit was not prematurely brought.
The bond upon which suit was brought was dated and approved September 15, 1892, and John G. Brown on that date qualified and entered upon the discharge of his duties as administrator of the estate of James M. Brown, deceased. On October 2, 1903, he filed an account in the probate court of Cook county as such administrator, in which he asked credit for $32,513.04, which he stated he had loaned without the approval of the court to George V. Hankins, one of his bondsinen, and which amount, by reason of the insolvency of Hankins, he had been unable to collect, and the same had been lost to the estate. The court refused to give him credit in his account for the amount of the Hankins loan, declined to approve the account, and directed him to file a further and corrected account. On October 13, 1903, Brown filed a new account, which was approved January 4, 1904. In that account the Hankins loan was eliminated, and the court charged Brown, as administrator, with interest at 10 per cent. on all funds which had remained in his hands as administrator subsequent to March 15, 1895, and found that there was then due and unpaid to Amanda C. Brown, the widow of James M. Brown, on her distributive share, $6,631.91; to Annie L. Stauffer, $2,966.33; to Luna R. Rainey. $1,873.30; to Billy Brown, $8,846.09; and that there remained unpaid an attorney's fee due the attorney of the estate of $310, which amounts aggregate the sum of $20,627.63, the amount of the verdict. In the order approving the account the court found that on March 15, 1895, the administrator had in his possession $18,576.37 which belonged to the estate, and that he should be charged with interest on such funds remaining in his hands from that time (which was two years and six months from the date of his appointment) at the rate of 10 per cent.