Sykes v. People

2 L.R.A. 461, 19 N.E. 705, 127 Ill. 117, 1889 Ill. LEXIS 1018

• Court: Illinois Supreme Court
• Decided: January 25, 1889
• Status: Published

Opinion

Mr. Justice Shops

delivered the opinion of the Court:

Upon the trial of this cause, it was avowed by the People that the prosecution was upon the counts under the Warehouse act, which, the court determined, limited the charge to the ninth, tenth, twelfth and thirteenth counts of the indictment, and the trial proceeded under those counts.

It is contended that the court erred in giving the second and third instructions on behalf of the People, for the reason the jury were thereby told that if they believed, from the evidence, etc., certain things, “as charged in the indictment,” etc., they should find the defendant guilty, instead of limiting the jury to the consideration of the facts charged as constituting the offense in the particular counts under which the defendant was on trial. The better practice in such cases is to direct the attention of the jury to the charge in the counts upon which the prosecution rely. But there was here no prejudicial error. In each of the instructions complained of, the attention of the jury was directed only to the facts constituting the offense as. charged in the counts to which the prosecution was limited.

The statute before referred to, and upon which said counts were predicated, is the 25th section of the act of 1871, (Starr & Curtis, par. 180, page 1975,) which is as follows: “Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any respect fraudulent in its character, either as to its date, or the quantity, quality or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger) without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one and not more than ten years.”

It is urged that this section of the statute is void, because the provision imposing a penalty for issuing such warehouse receipts, etc., is not embraced in the title of the act. The act is entitled “An act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to article 13 of the constitution of this State.” Section 6 of the article 'referred-to provides: “It shall be the duty of the General Assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the constitution,” etc. It is, we think, manifest from the mere statement, that the section under consideration is germane to the purposes of the act as stated in its title, and not, therefore, obnoxious to the objection. People v. Lœwenthal, 93 Ill. 191; Magnet v. People, 97 id. 320.

It is next insisted that this section of the Warehouse act was repealed by the passage of sections 124 and 125 of the Criminal Code. The position is not well taken. The Warehouse act and the Criminal Code, severally containing the sections referred to, were parts of the general revision of 1874, and the presumption is, the legislature intended the revision should be a consistent body of laws, and each part thereof be capable of enforcement. The provisions of these sections are not repugnant, and there is, therefore, no repeal by implication. The section of the Warehouse act is directed against the issuance of warehouse receipts, etc., by warehousemen of public warehouses, as designated in and regulated by that act, and because of the public capacity in which they are acting, and that warehouse receipts for property stored in such public warehouses are, by the 24th section of the act, made transferable by indorsement, and thereby a valid transfer of the property represented by such receipt is made, the offense is made to consist simply in committing or doing the acts prohibited. On the other hand, the sections of the Criminal Code referred to are directed against every person who shall “fraudulently make or utter any receipt or other written evidence of the delivery or deposit of any grain” or other commodity upon any wharf or place of storage, or in any warehouse, mill, store or other building, and includes places of deposit or of storage not public warehouses, as designated in the Warehouse act. In the one case the offense consists solely in issuing the receipt, from which a fraudulent result may occur prejudicial to the public or those into whose hands the receipt may come; while in the other it is made to consist in the making or uttering of the receipt for a fraudulent purpose or with a fraudulent intent. It is apparent, we think, that the objects sought to be attained by these enactments are distinct, and that full effect could not be given to the legislative intent in respect of the acts of public warehousemen under the sections of the Criminal Code alone.

The principal point of contention, however, is, that the court erred in excluding from the jury, as it practically did, evidence tending to show the intent with which the several warehouse receipts were issued by the defendant, and ruling that it was immaterial whether such receipts Avere issued by the defendant'for a fraudulent purpose or with a fraudulent intent, or not. As Avill be observed, we have to some extent anticipated this contention. The defendant Aras a Avarehouseman of a public Avarehouse of class “C.” He so testifies, and the evidence clearly establishes that his Avarehouse fell within that class, as fixed by the second section of the Warehouse act. It can make no difference that the defendant was a dealer, also, in the commodities for the storing of which he kept such public warehouse. His transactions as warehouseman could not be affected thereby. The receipts issued by- the defendant to the bank, purport, on their face, to be issued by the defendant as warehouseman of a public Avarehouse of class “G,” and are issued in compliance with the requirements of the 24th section of the act. Therein is designated the brand or distinguishing marks of the property purporting to have been delivered for storage by the bank, as is provided shall be done in receipts for property stored in public warehouses of that class. It is obvious, therefore, without further discussion, that the defendant was a warehouseman of a public warehouse, and issued the warehouse receipts charged in the counts of the indictment before referred to, and subject to all the regulations prescribed by the Warehouse act for his conduct as such warehouseman. These several receipts were thus issued by him, when, in fact, as he himself testifies, the particular property designated and described in such receipts was not in store with him at the time of the issuance of such receipts, or at any other time. It is conceded that no timothy seed, in bags bearing the marks and brands stated on the face of the receipts to have been deposited for storage by the bank, was ever, at any time, on deposit or in store in the defendant’s warehouse, or under his control. The bank at no time made any deposit or stored any timothy seed therein. The receipts were, therefore, false in every particular relating to the property thereby represented to be in store. If, therefore, the court was correct in its ruling, the defendant was clearly punishable under the statute referred to.

To understand this contention clearly, some reference to the facts is necessary. The defendant applied to the Merchants’ Loan and Trust Company for financial accommodation. The proof tends to show that he indicated to the bank the sums required might aggregate $100,000, and proposed to issue warehouse receipts upon his own produce in store, as collateral security for advances made by the bank, and keep the property represented by such receipts insured for the benefit of the bank; and the proof also tends'to show that he procured insurance upon property purporting to be represented by such receipts. An account was opened, advances made by the bank, for which the note of the defendant was given, to which the warehouse receipts introduced in evidence, and others, were collateral, to a large amount, aggregating, at the time of the failure of the defendant, and remaining unpaid, over $90,000.

The evidence offered by the defendant, and practically excluded, tended to show that it was understood that the produce of the defendant represented in the receipts should not be tied up thereby,—that the warehouse receipts were intended and understood to be mere formal security for advances made by the bank. And it is contended, that as the officers of the bank knew no deposit had been made of grass seed, as shown on the face of the receipts, or otherwise, by the bank, it was competent for the defendant to prove the understanding with which the bank received such receipts, as tending to rebut the presumption of fraud or fraudulent intent on the' part of the defendant in issuing the same.

If the statute in question was intended for the protection of the person to whom the receipts issued, only, there would be much force in the position, for if the bank made no deposit, it could not be deceived by the statement in the receipts that it had stored the property therein described," and if the property of the defendant actually in store was not to be represented in such receipts, and this was so understood, no fraud could have been perpetrated upon the bank. This statute, ■ however, has a much broader scope, and is not designed alone for the protection of the person to whom the receipt is in the first instance issued; it is intended not only for his protection, but to protect the public at large, and all persons into whose hands the receipt may come in the course of business. By the provisions of the 24th section of the act, these receipts of public warehousemen are made transferable by indorsement of the party to whom they are issued, and thereby a valid transfer of the property represented in such receipts is made; and it is provided that such indorsement may be made either in blank or to the order of another. Such receipts, therefore, pass from hand to hand by indorsement of the person to whom issued. It can not be doubted that commercial transactions are greatly facilitated by this transfer of property, and the purpose of the act was to protect the holders of such public warehouse receipts from imposition and fraud. The receipts are required to be the true representative of property actually in store in the warehouse, and their issuance is prohibited under any other conditions or circumstances. If the bank, in this case, as it might, had put these warehouse receipts in circulation, an actual fraud would have been committed, and the evil intended to be prevented by the statute, consummated. By the issuance of the receipts to the hank it was furnished with the means of perpetrating a fraud, and this is one of the objects this statute sought to prevent. Any other construction would open the door to unlimited fraud, and render nugatory the protection attempted to be afforded to transactions through the public warehouses of the State by the statute.

It follows, that, as touching the question of the guilt or innocence of the defendant, the intent with which the receipts were issued by him was immaterial. The intent necessary to be found to constitute this offense, related alone to whether defendant intended to issue the receipt knowing it to be false. Thus far the common law doctrine, that every criminal offense consists of the joint operation of act and intent, enters into and must be considered as applying to statutory offenses. (Bishop on Stat. Crimes, 351-361.) If such receipts were issued by the defendant, he knowing that the property therein represented was not in fact in store as therein designated and described, the crime created by this section of the statute, as it relates to the issuance of such receipts, was committed. As before stated, it is immaterial whether the defendant intended a fraud upon the bank or other persons, if, in fact, his act, knowingly committed, was within the prohibition ,of the statute. This principle has found repeated recognition in this and other courts, in prosecutions for violations of the Dram-shop act and other acts. McCutcheon v. People, 69 Ill. 601, and cases cited; State v. Moore, 52 Iowa, 509; Gardner v. People, 62 N. Y. 399; Halstead v. State, 12 Vroom, 552.

The Supreme Court of Iowa, in State v. Stevenson, 52 Iowa, 701, held, upon the same principle, that when a warehouseman shipped grain out of his control, for which he had given a receipt, leaving the receipt outstanding, he was criminally liable under a similar statute, although the grain was so shipped with the knowledge of and without objection by the holder of the receipt. The court said: “It is evident, from this whole section, that it is for the protection of the community as well as the protection of the holder of the voucher. It is clear that Petrie, (such holder,) in this case, with the receipt in his possession, might perpetrate a fraud upon third parties, the grain not being stored with the defendant, as stated in the receipt. The defendant could not, innocently, under the statute, with such a receipt outstanding, ship the wheat beyond his control, even in the presence - of Petrie, and with his verbal assent. Such an act would furnish Petrie the means of perpetrating a fraud, which it is one of the objects of the statute to prevent.”

It is urged, with great persistency, that the transaction here was a mere attempt to create a lien upon the property of the defendant, in the nature of a mortgage or pledge thereof, and that therefore the act of defendant in making and delivering said receipt can not be deemed the issuance of a warehouse receipt, within the meaning of said act, and also, that the statute does not contemplate the issuing of warehouse receipts for the property of warehousemen, but only for property deposited or stored in such public warehouse by others. It is highly probable, if a holder of these receipts was seeking to recover possession of the property therein named, or enforce some right thereunder, as against the assignee of the defendant, or others having liens thereon, he having notice of the facts as here shown, would be bound by the transaction as it truly occurred between the warehouseman and the person to whom it issued, and the principle laid down in Fishback v. Van Dusen et al. 33 Minn. 111, cited by counsel for plaintiff in error, become applicable. No such question here arises. The warehouse receipts, as we have seen, as issued, purported to be for grain stored by the bank with the defendant, in his public warehouse, designated and marked as shown by the receipts, when in fact no such deposit had been made. Nor is it true, as the contention of counsel would indicate, that the receipts represented produce belonging to the maker thereof. Nor can it make any difference in the criminal responsibility of the defendant, under this statute, that such receipts might have been intended by the parties to operate as a pledge or mortgage of the defendant’s property, or that the officers of the bank knew, or might have known, that no such articles of property as therein described were in the custody of the defendant.

The instructions asked on behalf of the defendant, being based on the theory of counsel for plaintiff in error, that it was necessary for the People to show, and for the jury to find, that the receipts were issued by the defendant with a fraudulent intent, were properly refused.

We have seen that evidence tending to show that the defendant did not intend the perpetration of a fraudulent act, is not admissible in justification, or as exculpating the defendant from punishment for the alleged offense. Was it admissible for any purpose ? If so, it was competent to be considered by the jury for such purpose, and its exclusion was error. While the penalty is denounced against any warehouseman of a public warehouse committing the acts prohibited by the statute, and no excuse can be heard that a fraud was not intended, yet a wide discretion is left by the statute to the jury or court to determine what penalty shall be inflicted in the particular case. That the legislature did not deem all persons guilty of violating the provisions of said act as deserving of a like punishment, is manifested by the fact that the penalty inflicted may, in the discretion of the jury, be for any term not less than one nor more than ten years. The purpose and object of punishment in criminal cases is stated to be, to deter others from crime, and thus protect the community, as well as, when the life is not taken, to reform the offender. On the one hand, punishment will not be inflicted unless deserved, while on the other hand, it will not be imposed unless for conservation of the public good. (1 Bishop on Grim. Law, sec. 210.) And the punishment should always be commensurate with, but never in excess of, the purposes of the law as thus understood. The degree of punishment to be inflicted is, in the first instance, a matter for legislative control; but when the legislature has prescribed punishment in the alternative, or within certain defined limits, thereby vesting jurisdiction in the courts to determine which, or, within the limits fixed, what, penalty shall be inflicted in the particular case, the court is called upon to determine what punishment the turpitude of the offénse proved, on the one hand, and protection to society on the other, demand. It was not within the legislative contemplation that all persons convicted under this act should receive the same punishment. One may be sentenced for a term of one year, and another for ten years. One may have been guilty of a technical violation of the statute, involving no considerable degree of moral turpitude, and from which no considerable injury could be inflicted upon the public; the other may have committed the offense under the most flagrant circumstances, showing a willful and deliberate purpose to inflict injury. In such case, the jury must determine what, within the time prescribed by the legislature, is adequate punishment. This, manifestly, can be justly and properly done only by a consideration of the facts and circumstances attendant upon its perpetration, and which characterize- the purpose and motive in and effect of its commission. If the evidence is to be confined to the mere proof of the issuance of the false receipt by the public warehouseman, what is there upon which to determine what, within the limit, shall be his punishment ? Obviously, nothing, unless it be permissible to prove, in aggravation or mitigation of the punishment, the immediate attendant circumstances of its issue. This, we think, may be done. It was, we think, competent for the defendant to prove the circumstances under which the receipts were issued and delivered, as bearing upon the turpitude of the offense, and for the jury to consider the same in determining the measure of punishment to be inflicted. Such evidence must necessarily be controlled by instructions, as in other cases where evidence is competent and admissible for a particular purpose.

We are of opinion that the court erred in holding that the evidence tending to show the purpose and intent hy which the defendant was actuated in the commission of the offense, was improper to be considered hy the jury in mitigation of the penalties to he hy them imposed. Nor can we say, if it had been submitted, that the term fixed hy the jury for which the defendant should be confined in the penitentiary, would have been the same. Its exclusion for the purpose indicated, was, we think, prejudicial error.

For the error in this regard, the judgment of the Criminal Court is reversed, and the cause remanded for further proceedings.

Judgment reversed.