The People v. Lee , 356 Ill. 294 ( 1934 )

Charles F. Lee was found guilty of embezzlement in the circuit court of Shelby county by a jury and sentenced to the penitentiary. He now seeks a reversal of the judgment by this writ of error.

The indictment consisted of one count, charging that as township treasurer of township 9 north, range 2 east of the third principal meridian, Shelby and Fayette counties, he embezzled certain money and property of school district No. 154, Shelby county.

Prior to entering his plea of not guilty Lee made a motion to quash the indictment. This motion was denied, and its denial is one of the grounds assigned as error. In support of this motion it is urged by Lee that the allegation that the money was the property of school district No. 154 was not a proper pleading and did not aptly charge a criminal offense — that the indictment should have charged that the funds were the property of the trustees of schools of the township. Counsel for Lee made an oral motion to quash the indictment, but the record shows that it was not urged and that it was submitted to the court without argument. An oral motion to quash an indictment without pointing out wherein it is defective is in the nature of a general demurrer, and, therefore, raises only questions relating to defects of substance. Under these circumstances, where the motion is denied, the ruling of the court can only be held erroneous where there are innate and substantial defects in the indictment which would make it insufficient to support a judgment. (People v. Munday, 293 Ill. 191.) That portion of the indictment relating to school district No. 154, Shelby county, was correct and the indictment sufficiently charged Lee with embezzlement of moneys as township treasurer.

It is also urged that there are material variances between the allegations of the indictment and the proof. In this respect it is argued that the indictment alleges that Lee embezzled moneys of school district No. 154, township 9 north, range 2 east of the third principal meridian, Shelby county, Illinois, whereas the proof showed that the school district is a union district including a portion of Fayette county, and that there is no such district numbered 154 exclusively in Shelby county. However, if the description in the indictment had omitted all reference to Shelby county there still would be a sufficient description of this school district. There can be only one school district numbered 154 in township 9 north, range 2 east of the third principal meridian, in the State of Illinois. The alleged variance is not material, as no substantial injury was thereby done to the accused, nor was he prejudiced either in making his defense or in the danger of having again to answer the same charge. People v. Weisman,296 Ill. 156; Clark v. People, 224 id. 554; People v.Boneau, 327 id. 194; People v. Braverman, 340 id. 525.

Throughout the trial objections were repeatedly made by Lee's counsel to the introduction of evidence of transactions occurring over a ten-year period prior to March 28, 1925. Likewise, at the close of the People's evidence, and again at the close of all the evidence, peremptory instructions were offered on behalf of Lee and refused by the court. The indictment against Lee was not returned until March 28, 1928, and these objections urged the bar of the Statute of Limitations against transactions which occurred more than three years prior thereto. Under this indictment Lee could not have been tried for embezzlement committed prior to March 28, 1925, as the Statute of Limitations begins to run against an embezzlement or fraudulent conversion when it is committed and not when it is discovered or made manifest by failure to pay over on demand. (Weimer v. People, 186 Ill. 503; Baschleben v. People, 188 id. 261.) Even if it were true, as claimed, that funds in the hands of Lee as township treasurer had been withdrawn and converted to his own use prior to 1925, he was at such prior time or times guilty of embezzlement and could then have been tried and convicted therefor. But if he was not tried and punished for these alleged prior offenses, any evidence concerning them, if they existed, would be clearly incompetent in this trial, as the Statute of Limitations constitutes an absolute bar beyond the three-year period immediately prior to the indictment.

It also appears that on the trial of this case great numbers of books, documents and records were introduced showing large sums of money received and paid out by Lee, as township treasurer, over a course of twelve years, beginning in 1915. Counsel for Lee objected to all of these exhibits, and the court erred in admitting them over the objections. InPeople v. Ross, 325 Ill. 417, this court held that the Statute of Limitations in criminal cases differs from such statutes in civil cases, "in that in the latter they are statutes of repose while in the former they create a bar to the prosecution, * * * a surrendering by the sovereign of its right to prosecute. The statute is not a process to be strictly and grudgingly applied, but an amnesty declaring that after a certain time oblivion shall be cast over the offense and that the offender may from thenceforth cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out." The record in this case is filled with a mass of incompetent evidence, confusing in its nature. The trial court should not have permitted evidence of all the transactions of the township treasurer's office over a twelve-year period to have been introduced. A large part of this evidence, as stated above, was barred by the Statute of Limitations. Its introduction might naturally have caused the jury to believe that Lee was guilty, since such large sums of money had been paid to him during his term of office and such a small amount of it was available when his term ended. The introduction of this incompetent testimony constituted reversible error, as it was both misleading to the jury and prejudicial to the accused.

The judgment is reversed and the cause remanded.

Reversed and remanded.