Mr. Justice Dickey
delivered the opinion of the Court:
This is an indictment against plaintiff in error, under section 80 of the Criminal Code, found by a grand jury of the county of Stephenson at the December term, 1878. The indictment consists of three counts, in each of which plaintiff in error was charged with the embezzlement of $4508.37, of money in his possession by virtue of his office as county treasurer.
The circuit court of Stephenson county overruled a motion to quash this indictment, and, a plea of not guilty being interposed, the venue was changed to the county of Winnebago by order of the court, on the application of the accused.
A transcript of the record of the proceeding in the circuit court of Stephenson county, embracing a copy of the indictment, was transmitted by the clerk of that court to the clerk of the circuit court of Winnebago county, and duly filed in his office on the 2d day of January, 1879. This transcript was authenticated by the certificate of the clerk of the circuit court of Stephenson county, under the seal of that court, as “a true, perfect and complete copy of the record in a certain cause lately pending in the circuit court of the county of Stephenson, wherein the People is plaintiff and Charles F. Goodhue is defendant.”
At the January term of the circuit court of Winnebago county a trial was had, resulting in a verdict of guilty, fixing the term of imprisonment in the penitentiary at four years; and in a further finding of the jury (as the verdict reads) “from the evidence in our hands,” that defendant embezzled the sum of $3812.
Motions for new trial and in arrest were made and overruled, and sentence and judgment were entered upon the verdict.
It is insisted by plaintiff in error that the circuit court of Winnebago county did not acquire and did not have jurisdiction to try this case, because the original indictment was not before that court, as required by law.
We can not sustain this position. On the making of the order changing the venue by the circuit court of the county of Stephenson the jurisdiction of that court ceased, and that of the circuit court of Winnebago attached, by operation of law. Had the clerk of the court in Stephenson county refused to transmit the papers with an authenticated transcript of the record, the circuit court of the county of Winnebago, and not that of Stephenson county, would have been the forum to which application could be made to compel the performance of that duty. The jurisdiction of the court in the county of Winnebago in no sense or degree depended upon the ministerial act of the clerk of the circuit court of Stephenson county. The failure of that clerk to transmit the original papers forming part of the record in the case was a grave irregularity. The accused had a right to demand that he should not be put upon trial until such original papers were placed on file in the circuit court of Winnebago. It is, however, such an irregularity as may be waived by the accused. In this case it was waived. The accused, when put upon trial, did not object on that ground to going on with the trial. It is true he objected to going to trial upon the ground of the absence of a witness, but did not call the attention of the court to the absence of the original indictment. Had he so done it would have shown good ground for postponing the trial, but not ground for dismissing the cause for want of jurisdiction. Hot having presented that ground upon his application for a continuance, he could not, after trial, be heard to complain of the irregularity.
It is objected that the indictment, on its face, is bad. A majority of the court are of opinion that the indictment is sufficient.
In the course of the trial evidence was produced tending to prove that certain county orders were ordered to be issued, and that the county clerk, having prepared and signed the orders (which were prepared on blanks for that purpose, contained in a book), left the book containing the orders, so signed by the clerk, in the treasurer’s office, for the purpose of having the treasurer countersign the orders; and that plaintiff in error, having countersigned these orders as treasurer, cut a part of them out of the book, amounting to some $2200, and took them to a bank and sold them for about that amount of money, and failed to charge himself with that amount in his official accounts, but fraudulently converted the same to his own use.
This evidence was admitted by the court against the objection of the accused, and after all the evidence on that subject was given a motion was made to exclude the same as inadmissible under this indictment, and this motion was denied. This, we hold, was error. The indictment charged the embezzlement of money, and did not charge the embezzlement of county orders. If this disposition of the county orders was made criminally, it constituted either the larceny or the embezzlement of county orders, and not of money. The county treasurer as such had no authority to sell these orders for the county and receive the proceeds as the money of the county. The issuing and sale of county orders is, neither of them, embraced among the official duties of the county treasurer, nor is there any proof whatever tending to show that the county board made him in any way the agent of the county to issue or sell these orders for the county. The order of the county board authorized the county clerk to issue them, and the law required the orders to be countersigned by the treasurer.
It is plain that if crime was committed by the accused in this transaction in relation to what are called the “jail orders,” as presented by the proofs, it was not the embezzlement of the proceeds of the orders, but the embezzlement or larceny of the orders themselves. If a man steal a horse and sell him to a stranger, he may be convicted of stealing the horse, but not of stealing the money received as the price of the stolen horse. '
These county orders were in the lawful possession of the county clerk, although placed for the purpose of being countersigned in the room where the county treasurer kept his office. They were in. process of preparation for issue, but seem never to have been issued by the clerk.
Upon the proofs, this transaction did not fall within the description in the indictment. The evidence relating thereto ought to have been excluded from the jury,—and the 16th instruction on that subject ought not to have been given.
In the course of the trial evidence was given tending to charge the plaintiff as to at least three different transactions, each of which the court charged the jury was, if established, a complete crime, for which they must convict. One related to the withholding some $540.31 from the city treasurer of the city of Freeport, and occurred in the month of July, 1878. Another transaction had relation to a false receipt given in the month of May, 1878, to one Potter, saying defendant had paid him $383 for printing, when in fact but $283 was paid, and to the entry of credit on the collector’s books of a credit for the former amount. And another transaction related to the improper conversion or use of certain county orders, called jail orders, which is said to have occurred in the month of September, 1878.
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Mr. Justice Dickey
delivered the opinion of the Court:
This is an indictment against plaintiff in error, under section 80 of the Criminal Code, found by a grand jury of the county of Stephenson at the December term, 1878. The indictment consists of three counts, in each of which plaintiff in error was charged with the embezzlement of $4508.37, of money in his possession by virtue of his office as county treasurer.
The circuit court of Stephenson county overruled a motion to quash this indictment, and, a plea of not guilty being interposed, the venue was changed to the county of Winnebago by order of the court, on the application of the accused.
A transcript of the record of the proceeding in the circuit court of Stephenson county, embracing a copy of the indictment, was transmitted by the clerk of that court to the clerk of the circuit court of Winnebago county, and duly filed in his office on the 2d day of January, 1879. This transcript was authenticated by the certificate of the clerk of the circuit court of Stephenson county, under the seal of that court, as “a true, perfect and complete copy of the record in a certain cause lately pending in the circuit court of the county of Stephenson, wherein the People is plaintiff and Charles F. Goodhue is defendant.”
At the January term of the circuit court of Winnebago county a trial was had, resulting in a verdict of guilty, fixing the term of imprisonment in the penitentiary at four years; and in a further finding of the jury (as the verdict reads) “from the evidence in our hands,” that defendant embezzled the sum of $3812.
Motions for new trial and in arrest were made and overruled, and sentence and judgment were entered upon the verdict.
It is insisted by plaintiff in error that the circuit court of Winnebago county did not acquire and did not have jurisdiction to try this case, because the original indictment was not before that court, as required by law.
We can not sustain this position. On the making of the order changing the venue by the circuit court of the county of Stephenson the jurisdiction of that court ceased, and that of the circuit court of Winnebago attached, by operation of law. Had the clerk of the court in Stephenson county refused to transmit the papers with an authenticated transcript of the record, the circuit court of the county of Winnebago, and not that of Stephenson county, would have been the forum to which application could be made to compel the performance of that duty. The jurisdiction of the court in the county of Winnebago in no sense or degree depended upon the ministerial act of the clerk of the circuit court of Stephenson county. The failure of that clerk to transmit the original papers forming part of the record in the case was a grave irregularity. The accused had a right to demand that he should not be put upon trial until such original papers were placed on file in the circuit court of Winnebago. It is, however, such an irregularity as may be waived by the accused. In this case it was waived. The accused, when put upon trial, did not object on that ground to going on with the trial. It is true he objected to going to trial upon the ground of the absence of a witness, but did not call the attention of the court to the absence of the original indictment. Had he so done it would have shown good ground for postponing the trial, but not ground for dismissing the cause for want of jurisdiction. Hot having presented that ground upon his application for a continuance, he could not, after trial, be heard to complain of the irregularity.
It is objected that the indictment, on its face, is bad. A majority of the court are of opinion that the indictment is sufficient.
In the course of the trial evidence was produced tending to prove that certain county orders were ordered to be issued, and that the county clerk, having prepared and signed the orders (which were prepared on blanks for that purpose, contained in a book), left the book containing the orders, so signed by the clerk, in the treasurer’s office, for the purpose of having the treasurer countersign the orders; and that plaintiff in error, having countersigned these orders as treasurer, cut a part of them out of the book, amounting to some $2200, and took them to a bank and sold them for about that amount of money, and failed to charge himself with that amount in his official accounts, but fraudulently converted the same to his own use.
This evidence was admitted by the court against the objection of the accused, and after all the evidence on that subject was given a motion was made to exclude the same as inadmissible under this indictment, and this motion was denied. This, we hold, was error. The indictment charged the embezzlement of money, and did not charge the embezzlement of county orders. If this disposition of the county orders was made criminally, it constituted either the larceny or the embezzlement of county orders, and not of money. The county treasurer as such had no authority to sell these orders for the county and receive the proceeds as the money of the county. The issuing and sale of county orders is, neither of them, embraced among the official duties of the county treasurer, nor is there any proof whatever tending to show that the county board made him in any way the agent of the county to issue or sell these orders for the county. The order of the county board authorized the county clerk to issue them, and the law required the orders to be countersigned by the treasurer.
It is plain that if crime was committed by the accused in this transaction in relation to what are called the “jail orders,” as presented by the proofs, it was not the embezzlement of the proceeds of the orders, but the embezzlement or larceny of the orders themselves. If a man steal a horse and sell him to a stranger, he may be convicted of stealing the horse, but not of stealing the money received as the price of the stolen horse. '
These county orders were in the lawful possession of the county clerk, although placed for the purpose of being countersigned in the room where the county treasurer kept his office. They were in. process of preparation for issue, but seem never to have been issued by the clerk.
Upon the proofs, this transaction did not fall within the description in the indictment. The evidence relating thereto ought to have been excluded from the jury,—and the 16th instruction on that subject ought not to have been given.
In the course of the trial evidence was given tending to charge the plaintiff as to at least three different transactions, each of which the court charged the jury was, if established, a complete crime, for which they must convict. One related to the withholding some $540.31 from the city treasurer of the city of Freeport, and occurred in the month of July, 1878. Another transaction had relation to a false receipt given in the month of May, 1878, to one Potter, saying defendant had paid him $383 for printing, when in fact but $283 was paid, and to the entry of credit on the collector’s books of a credit for the former amount. And another transaction related to the improper conversion or use of certain county orders, called jail orders, which is said to have occurred in the month of September, 1878.
By one instruction (the 9th) the jury were told that they must convict defendant if he held in his hands, as such county treasurer and by virtue of his office, the sum of $7017.14 belonging to the city of Freeport, and while he so held such fund the treasurer of that city, as such, demanded of defendant, as such county treasurer, all of the money in his hands belonging to said city; and that defendant then and there fraudulently told such city treasurer that $6476.83 was all of such moneys, when in fact there was the further sum of $540.31 in the hands of defendant belonging to such city; and defendant then and there fraudulently withheld from said city treasurer the latter sum, with intent to defraud the said city of that sum, and if defendant fraudulently converted the same to his own use “then the jury shall find defendant guilty,” etc.
By another instruction (the 8th) the jury are directed to convict the defendant if, while the county owed to one Potter only the sum of $283 for printing a delinquent list, defendant, as county treasurer, paid that' sum and no more to Patter for such service, and then and there fraudulently obtained from Potter a receipt for the sum of $383, being $100 more than the actual amount paid to Potter; and if defendant then and there knowingly, falsely and fraudulently gave himself credit on that account on his books as county collector with the sum of $383, with intent fraudulently to convert to his own use the $100, which was the excess of the receipt and of the credit upon the books over and above the amount actually paid to Potter.
By another instruction (the 16th) the jury Avere directed to find the defendant guilty if certain jail orders, numbered 208, 209, 210, 211 and 212, Avere issued by the county, and, in pursuance of some arrangement betAveen the officers of the county and a certain bank, certain money, the avails of such orders, came into defendant’s hands as county treasurer, and if defendant fraudulently failed to charge himself thereAvith on the treasurer’s books, and embezzled the same or any part thereof.
The transactions to which these instructions respectively relate are distinct and separate in so far as the proofs tend to show.
After the evidence was closed the accused, by his counsel, applied to the court to put the prosecution to their election as to which act of embezzlement they would claim a conviction, and moved the court to limit the prosecution to some one act of embezzlement. This the court refused to do, but gave the several instructions mentioned supra.
If two or more offences form part of one transaction, and are such in nature that a defendant may be guilty of both, the prosecution will not a* a general rule be put to an election, but may proceed under one indictment for the several offences, though they be felonies. The right of demanding an election and the limitation of the prosecution to one offence, is confined to charges which are actually distinct from each other and do not form parts of one and the same transaction. In misdemeanors the prosecution may, in the discretion of the court trying the case, be required to confine the evidence to one offence, or where evidence is given of two or more offences, may be required to elect one charge to be submitted to the jury, but in cases of felony it is the right of the accused, if he demand it, that he be not put upon trial at the same time for more than one offence, except in cases where the several offences are respectively parts of the same transaction. 1 Wharton Crim. Law, § 423; 1 Bishop Crim. Pr. 459. This doctrine is recognized by this court in Lyons v. The People, 68 Ill. 275, and is believed to accord with the practice in this State from its earliest days. It was therefore error, in this case, to refuse the application of the accused for the benefit of this rule.
Again, the statute in question defines two offences,—one, the actual embezzlement of public funds, and the other, the taking or secreting of public moneys with intention to embezzle.
The indictment charges that the accused did actually embezzle, and does not charge that he took or secreted with intent to embezzle. In several of the instructions given by the court this distinction is not observed, and the jury were directed to convict if it be shown sufficiently that the accused did certain fraudulent acts with intent to embezzle. This is error.
We think, also, that the recitals of misconduct on the part of the accused contained in the record of the proceedings of the county board, in connection with the removal of the accused from office and the appointment of his successor, ought not to have been given to the jury,—certainly not without definite caution to the jury that they must not be taken as proof in the slightest degree of the truth of the recitals. It is said, for the prosecution, these ;-recitals were necessary to show the validity of the order of removal. We do not think so. The statute gives the power of removal on the happening of certain contingencies. The statute does not require such contingencies to be stated in the record of the proceedings. Such recitals of the record are not proof that the contingencies occurred. Nor do we perceive, from the statement of the evidence in the abstract, that any material lawful purpose could be subserved by proof of his removal from office and the appointment of his successor. It is shown that his successor sent the accused a letter demanding that he turn over all the moneys, property, books, etc., belonging to the office of county treasurer, but our attention has not been directed to any proof as to whether the accused did or did not comply With this request, and without this proof the fact that he had a successor is of no significance.
Again, the tax warrant for the collection of taxes was put in evidence, as it would appear, by way of showing the state of accounts of the treasurer, and in the account presented by the prosecution, the amount of taxes to be collected, as mentioned in the collector’s warrant is presented as an item with which the accused should be debited, and this, as it is said, for the purpose of showing the amount of money which actually came to his hands. The tax warrant was not competent proof for that purpose. Such proof, if competent in this case, would charge the accused with embezzlement of every amount of tax which he, from his own fault, failed to collect. In determining the amount which a county collector shall be called upon to account for in his settlements with the State, county and other authorities, this item is a proper debit to head the account, for, if the collector has, from his own fault, failed to collect any given amount in that warrant, he must account for the same in such settlement. Mot so in a trial for embezzlement of money actually received and appropriated to his own use. The introduction of this tax list was calculated to mislead rather than enlighten the jury on the issue. An officer may be a very gross defaulter and yet not an embezzler or a thief. In fact, an honest man is liable to become a defaulter from his negligence or from his incompetency. These matters must not be confounded-with crime.
Complaint is made that the list of jurors furnished to the accused was not correct. The list furnished contained thirty names instead of twenty-four. Six of the men whose names were so given were of the jurors drawn for the term, but some of them had not been served-and others had been excused; none of them were at that time on the panel of jurors, and as to one man who was of the panel as composed when the trial began, his name was A. F. Michols, but.he was summoned by the sheriff by the name of Burt Micholds, and on the list furnished the accused he was put down as “Burt Micholds.”
The utmost care should be taken to give to every defendant m criminal cases every reasonable opportunity to prepare for trial, and among other things to notify them in due time as to what men constitute the panel out of which the jurors for his trial are to be called, and where it is made to appear to the court that a defendant has been put to a disadvantage from a failure in this regard, his conviction ought to be set aside. It is hot, however, every little inaccuracy which may occur in this regard for which a trial should be set aside. In this case it seems plain that the accused suffered no injury from the irregularity. He could readily see that the list contained thirty names, and might have called the attention of the court to that fact and had the list corrected.
For the errors indicated the conviction and judgment must be set aside, and the cause remanded to the circuit court of Winnebago county for a new trial.
Judgment reversed.