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REPORTS

OF

CASES AT LAW AND IN CHANCERY

ARGUED AND DETERMINED IN THE

SUPREME COURT OF ILLINOIS.

NORMAN L. FEEEMAN,

REPORTER.

VOLUME 101,

Containing Cases in which Opinions were filed in November, 1881,

and January, 1882, and Cases in which Kehearings

were denied at the january and

March Terms, 1882.

PRINTED FOR THE REPORTER.

SPRINGFIELD

1882.

Entered according to Act of Congress, in the year 1882, by

NORMAN L. FREEMAN, In the office of the Librarian of Congress at Washington.

H. W. ROKKER,

Stereotyper, Printer and Binder,

Springfield, Illinois.

JUSTICES OF THE SUPREME COURT

DUliING THE TIME OF THESE KEPOKTS.

ALFEED M. CEAIG, Chief Justice. PINKNEY H. WALKEE, T. LYLE DICKEY, JOHN M. SCOTT, BENJAMIN E. SHELDON, JOHN SCHOLFIELD, JOHN H. MULKEY,

ATTOKNEY GENERAL,

JAMES McCAETNEY.

REPORTER,

NOEMAN L. FEEEMAN.

CLERK IN THE SOUTHERN GRAND DIVISION,

J. 0. CHANCE, Mt. Yernon.

CLERK IN THE CENTRAL GRAND DIVISION,

ETHAN A. SNIVELY, Springfield.

CLERK IN THE NORTHERN GRAND DIVISION,

E. F. DUTTON, Ottawa.

JUDGES OF THE APPELLATE COURTS

DUBING THE TIME OF THESE BEPOBTS.*

Foe the Fiest Disteict — Chicago:

joseph m. bailey, william k. McAllister, isaac g. wilson.

Foe the Second Disteict — Ottawa: NATHANIEL J. PILLSBUEY, GEORGE W. PLEASANTS, LYMAN LACEY.

Foe the Thied Disteict — Seeingfield:

olivee l. davis, chauncey l. higbee, david Mcculloch.

Foe the Foueth Disteict— Mt. Veenon: DAVID J. BAKEE, GEOEGE W. WALL, THOMAS S. CASEY.

* In cases of appeals from or writs of error to any of the Appellate Courts, which may be reported in this volume, where the names of the judges of those courts are not given in the report, it will be understood the judges constituting the court in that particular District named were as above stated.

Digitized by the Internet Archive

in 2012 with funding from

State of Indiana through the Indiana State Library

http://archive.org/details/reportsofcasesatv101illi

TABLE OF CASES

REPORTED IN THIS VOLUME.

A PAGE.

Aldrich et al. v. The People 16

Allen etal. ads. Humphreys etal. 490 v. Le Moyne et al. (Prac- tice) 655

Allman et al. v. Taylor et al 185

Anderson et al. v. Irwin 411

Appleton ads. The People ex rel.

(Practice) 652

Auditor Public Accounts ads. Chicago Life Ins. Co 82

B

Berman v. The People 322

Board of Education of City of

Quincy ads. The People ex rel. 308

Bolden et al. v. Sherman 483

Booker v. Venice and Carondelet

By. Co 333

Breit et al. v. Yeaton et al 242

Brix v. Ott 70

Bross ads. City of Cairo 475

Brown et al. ads. Stark et al ,395

Burkett ads. First National Bank

of Flora 391

Burley ads. Laing, Admr 591

Byars et al. v. Spencer et al 429

C

Cairo, City of, v. Bross 475

Chicago, Danville and Vincennes

K. K. Co. v. Town of St. Anne

et al 151

Chicago and Iowa K. R. Co. et al.

v. Mallory et al 583

Chicago Life Ins. Co. v. Auditor

Public Accounts 82

PAGE.

Comrs. Highways ads. Wrought

Iron Bridge Co 518

Conlan ads. Pennsylvania Co . . . 93

Crane et al. v. Lord 41

Crawford et al. v. Richeson et al. 351

D

Darling et al. v. McDonald 370

Darst et al. ads. City of Peoria . . 609 Dennison, Receiver, ads. Smith

et al 531

Dennison, Receiver, ads. Smith

et al. Admrs. (Practice) 657

Devine v. Edwards 138

Doane v. Walker 628

Drury et al. ads. Lequatte et al. 77 Dulaney v. Payne et al 325

E

Edwards ads. Devine 138

Ellsworth v. Harmon 274

F

Field et al. v. Herrick et al. . . . 110 Fifth National Bank v. Village of

\ Hyde Park 595

First National Bank of Flora v.

Burkett 391

Fritz ads. Thrifts 457

G

Gage v. McLaughlin 155

Galbraith v. Plasters 444

Gay et al. ads. Wright et al 233

Geraghty et al. ads. Keegan .... 26 Gerlach, Sheriff, ads. Schuck ... 338 Germania Ins. Co. ads. Scammon 621

VIII

TABLE OF CASES REPORTED.

PAGE.	PAGE.
Gleeson, The People ex rel. v.		Lequatte et al. v. Drury et al. . .	77
Meech	200	Loewenthal v. McCormick et al. .	143
Goodrich et al. v. Kogers et al. .	523	Longress, The People ex rel. v.
Gross, Clerk, etc. ads. The Peo-		Board of Education of City of
ple ex rel	343	Quincy ;	308
		Lord ads. Crane et al	41
II	Lyle v. Jacques et al	644
Hall, Admr. ads. Wernse et al. .	423
Harmon ads. Ellsworth	274	M
Hartman et al. v. Schultz et al. .	437	Mallory et al. ads. Chicago and
Hathaway et al. ads. S trail ch		Iowa R. R. Co. et al	583
et al	11	McCormick et al. ads. Loewen-
Hawley v. Simmons et al. (Prac-		thal	143
tice)	654	McDonald ads. Darling et al. . . .	370
Herrick et al. ads. Field et al. . .	110	McLaughlin ads. Gage	155
Hirschman v. The People	508	McLean ads. Rhode et al	467
Hughes, The People ex rel. v.		Meech ads. The People ex rel. . .	200
Appleton	652	Miner et al. ads. Jackson	550
Humphreys et al. v. Allen et al.	490
Hyde Park, Village of, ads. Fifth		K
National Bank	595	Noble et al. ads. Winslow et al. .	194
I Irwin ads. Anderson et al		Norris v. The People	408
411	O
		Oldershaw et al. v. Knowles ....	117
J		Ott ads. Brix	70
Jackson v. Miner et al	550
Jacques et al. ads. Lvle	644	P
Jewell et al. v. Rock River Paper		Payne et al. ads. Dulaney	325
Co. et al	57	Pennsylvania Co. v. Conlan	93
Johnson, People ex rel. ads.		People ads. Aldrich et al	16
Pres. Theological Seminar v. . .	578	ads. Berman	322
		ads. Hirschman	568
K		ads. Norris	408
Kankakee and Seneca R. R. Co.		v. Stahl	346
v. Straut (Practice)	653	ads. Tobin	121
Karnes ads. St. Louir, Alton and		ads. Williams et al	382
Terre Haute R. R. Co	402	ads. Wright	126
Keegan v. Geraghty et al	26	ex rel. ads. Pres. Theo-
Kerfoot, The People ex rel. v.		logical Seminary	578
Gross, Clerk, etc	343	ex rel. ads. Wiggins Ferry
Knowles ads. Oldershaw et al..	117	Co	446
Jj		tice)	652
Laing, Admr. v. Burley	591	ex rel. v. Board of Edu-
Le Moyne et al. ads. Allen, (Prac-		cation of City of Quincy	308
tice)	655	ex rel. v. Gross, Clerk, etc.	343

TABLE OF CASES REPORTED.

IX

PAGE.	PAGE.
People ex rel. v. Meech	200	St. Anne, Town of, et al. ads.
Peoria, City of, v. Darst et al. . .	609	Chicago, Danville and Vin-
Peoria Grape Sugar Co. ads.		cennes R. R. Co. et al	151
Truesdale et al	561	St. Louis, Alton and Terre Haute
Pittsburg, Ft. Wayne and Chicago K. K. Co. v. Keich		R. R. Co. v. Karnes	402
157	Strauch et al. v. Hathawav et al.	11
Plasters ads. Galbraith	444	Straut ads. Kankakee and Seneca
Plummer v. White	474 206	R. R. Co. (Practice) Stum ads. Simmons	653
Pratt et al. ads. Stevens	454
Pres. Theological Seminary v.
The People ex rel	578	T
		Tavlor et al. ads. Allman et al.	185
R		Thistlewood ads. Winter	450
Reich ads. Pittsburg, Ft. Wayne		Thrifts v. Fritz	457
and Chicago R. R. Co	157	Tobin v. The People	121
Rhode et al. v. McLean	467	Truesdale et al. v. Peoria Grape
Richeson et al. ads. Crawford		Sugar Co	561
et al	351	V
Ritter v. Schenk et al	387	Venice and Carondelet Rv. Co.
Robbins v. Robbins	416	ads. Booker	333
Rock River Paper Co. et al. ads.
Jewell et al	57 523	W Walker ads. Doane
Rogers et al. ads. Goodrich et al.	628
		Walsh et al. v. Wright	178
S		Washington Ice Co. v. Shortall . .	46
Scammon v. Germania Ins. Co . .	621	Weber, The People ex rel. ads.
Schenk et al. ads. Ritter	387	Wiggins Ferry Co	446
Schuck v. Gerlach, Sheriff	338	Weidenger v. Spruance	278
Schultz et al. ads. Hartman et al.	437	Wernse et al. v. Hall, Admr	423
Sherman ads. Bolden et al	483	White ads. Plummer	474
Shortall ads. Washington Ice Co.	46	Wiggins Ferry Co. v. The People
Simmons et al. ads. Hawley		ex rel	446
(Practice)	654	Williams et al. v. The People . . .	382
v. Stum	454	Winslow et al. v. Noble et al. . . .	194
Smith et al. v. Dennison, Re-		Winter v. Thistlewood	450
ceiver	531	Wright et al. v. Gay et al	233
Smith et al. Admrs. v. Dennison,		v. The People	126
Receiver (Practice)	657	ads. Walsh et al	178
Spencer et al. ads. Byars et al.	429	Wrought Iron Bridge Co. v. Com-
Spruance ads. Weidenger	278	missioners of Highways	518
Stahl ads. The People	346
Stark et al. v. Brown et al	395	Y
Stevens v. Pratt et al	206	Yeaton et al. ads. Breit et al. . . .	242

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ILLINOIS

George Strauch et al.

v. Edwin Hathaway et al.

Filed at Ottawa November 10, 1881.

1. Acknowledgment — evidence to impeach. In the absence of evi- dence of fraud, conspiracy or overreaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and when the certificate of acknowledgment of a deed is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated.

2. As between the former owner of land and an innocent purchaser under a deed of trust, before the title of the latter can be defeated by im- peaching the truthfulness of the certificate of acknowledgment to the trust deed, the evidence must be clear and conclusive, excluding every reasonable doubt.

•

Appeal from the Circuit Court of Carroll county; the Hon. John V. Eustace, Judge, presiding.

Messrs. Hunter & Hoffman, for the appellants :

The law makes the certificate of acknowledgment of a deed evidence of the execution of the deed. It imports verity, and can not be overcome except by clear and undoubted evidence of its fraudulent character. Spurgin v. Traub et al.

12 Strauch et al. v. Hathaway et al. [Nov.

Brief for the Appellees.

65 111. 170 ; Sisters of Loretto v. Catholic Bishop, 86 id. 171 ; McPherson v. Sanborn et al. 88 id. 150; Tunison v. Cham- berlin et al. 88 id. 378 ; Myers v. Parks, 95 id. 408.

After the lapse of several years, proof on the part of a wife will not be allowed to avoid such deed as against an innocent purchaser without notice, by showing that she never in fact acknowledged the deed. Kerr v. Russell, 69 111. Q66; Choteau v. Jones, 11 id. 800; Peck v. Arehart, 95 id. 113 ; Hunter v. Stonebumer, 92 id. 75 ; Pratt v. Stone, 80 id. 440.

Mr. James Shaw, for the appellees :

1. The husband alone can not waive the homestead. The wife must join with him to make his waiver effective ; and where possession is retained, the homestead can only be alienated when the wife not only signs the conveyance, but also properly acknowledges it. Kev. Stat. 1874, p. 497, sec. 4 ; Richards et ux. v. Greene, 73 111. 54 ; Moore v. Titman, 33 id. 358; Eldridge v. Pierce et al. 90 id. 474; Black v. Lush, 69 id. 70; Marshall^. Poor, 35 id. 106.

2. The husband and wife may join in suit to assert the right of homestead. Eyster v. Hathaway et al. 50 111. 521.

3. A false certificate is a fraud on the wife. A certificate may be impeached like a record, or a fine and recovery. They always could be impeached for fraud. 73 111. 337.

4. The homestead right may be asserted at any time, when it has not been abandoned, or conveyed according to statute. Wing v. Cropper, 35 111. 256 ; Young v. Graff, 28 id. 20 ; Allen v. Hawley, QQ id. 164; West v. Krebaum, 88 id. 263 ; Asher v. Mitchell, 92 id. 480 ; Moore v. Dixon, 35 id. 208.

5. The certificate of acknowledgment may be shown to be false. A clear preponderance of testimony will be sufficient in showing this. Marston et al. v. Brittenham, 76 111. 611 ; Lowell v. Wren, 80 id. 238 ; McPherson v. Sanborn et al, 88

1881.] Strauch et al. v. Hathaway et al. 13

Opinion of the Court.

id. 150; Blackmail v. Hawks, 89 id. 512; Myers v. Parks, 95 id. 408.

Mr. Justice Mulkey delivered the opinion of the Court :

On the 26th of February, 1876, Edwin Hathaway bor- rowed of Caroline Marks $3000, to secure which he and his wife, Flora A. Hathaway, executed a deed of trust to Henry A. Miles, as trustee, in the usual form, upon their homestead premises, which the proofs show do not exceed in value $1000. Default having been made in payment, the premises were sold under the trust deed, and George Strauch became the purchaser. Hathaway and wife having refused, after demand, to surrender possession of the premises to Strauch, the latter instituted an" action of forcible detainer to recover their possession, whereupon appellees filed the present bill against appellants in the Carroll county circuit court, by which they seek to set aside the sale under the trust deed, to enjoin the forcible detainer proceeding, and to have their homestead set off and assigned to them. The relief sought by the bill is asked on the alleged ground the deed of trust contained no waiver of the homestead by Mrs. Hathaway. The circuit court found the equities with appellees, and ren- dered a decree in conformity with the prayer of the bill, and appellants bring the record here for review. *

It is admitted that the deed of trust was signed by the wife as well as the husband, and the certificate of the magistrate is in due form, and shows a release and waiver of the home- stead by them both. All the witnesses who claim to know anything about the transaction, testify to the fact that Mrs. Hathaway went with her husband to the premises of the jus- tice at the time the acknowledgment was taken, and it is admitted that he acknowledged it ; but it is claimed that the husband alone went into the house where the justice kept his office, leaving his wife in the carriage which had con- veyed them there, in company with Mr. and Mrs. Holt, all

14 Strauch et al. v. Hathaway et al. [Nov.

Opinion of the Court.

four of whom testify to this fact. On the other hand, as has already been stated, the certificate of the magistrate shows a release and waiver of the homestead by them both. The magistrate also testifies to the taking of her acknowl- edgment at the same time he took the husband's, and that the same was taken at his office, in his house. In addition to this, Mrs. Bell, who was present at the time spoken of by the other witnesses, testifies that Mrs. Hathaway was in the office of the justice at the time of the acknowledgment of the deed by her husband, though she does not pretend to remember the details of what occurred while there.

In view of the fact that more than four years elapsed be- tween the taking of the testimony and the occurrences to which it relates, it is not at all surprising that there should be discrepancies in the recollection of witnesses as to what actually did occur, — that these differences in the recollec- tion of persons of unquestioned integrity, with respect to events which have transpired a number of years past, is but a part of the common experience of every one who notes the current events of life. This being so, it shows how much more reliable and trustworthy, as a muniment of title, is the solemn official record of a fact, made at the time of its occur- rence, than the mere recollection of witnesses, however honest, with respect to such fact, especially where years have passed since it transpired.

In the present case, no apparent motive is shown for the execution of a false certificate, and there is nothing in the whole record tending to show any combination, fraud, or con- spiracy on the part of the justice or others connected with the transaction. Under such circumstances, nothing but the most clear and satisfactory evidence would warrant us in declaring the certificate of the justice a forgery, and thereby defeating the title of the purchaser at the trustee's sale, who in good faith paid his money for the premises, relying upon the genuineness and truthfulness of the certificate. If landed

18S1.] Strauch et al. v. Hathaway et al. 15

Opinion of the Court.

titles could be set aside and defeated upon a mere conflict of verbal testimony, like that presented in the present case, without any evidence tending to establish fraud or conspiracy, no one could know, with any degree of assurance, when he would be safe in buying a title of any kind, and the general confidence in titles of record would soon be destroyed.

Mr. Wharton, in discussing this subject in his work upon Evidence, says: ''The true view is, that the certificate of acknowledgment is prima facie proof of the facts it contains, if within the officer's range, but is open to rebuttal between the parties by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the officer to certify, if he has jurisdiction. " 2 Wharton on Evidence, sec. 1052.

This court has not gone to the full extent of the latter proposition. While we hold the certificate shall not be deemed conclusive in any case so as to cut off all inquiry, yet where there is no evidence of fraud, conspiracy or over- reaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and the certificate of acknowledgment is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated. Monroe v. Poorman et al. 62 111. 523 ; McPherson v. Sanborn et al. 88 id. 150 ; Russell v. Baptist Theological Union, 73 id. 337.

Where the controversy is between the former owner and an innocent purchaser, as in the present case, before the title of the latter can be thus impeached the evidence should be clear and conclusive, excluding every reasonable doubt. The evidence in this case is not of that character. The utmost that can be claimed, even leaving the certificate itself out of the question, is that there is simply a preponderance of testi- mony in favor of appellees, in so far as numbers of wit- nesses go to make up preponderance, which is not always a

16 Aldrich et al. v. The People. [Nov.

Syllabus.

safeguard in determining the weight of evidence. But, under the circumstances of this case, we regard the certificate of the officer as entitled to more weight than all the witnesses put together.

The decree of the circuit court will be reversed, and the bill dismissed.

Decree reversed.

Charles Aldrich et al.

v.

The People of the State of Illinois.

Filed at Ottawa November 10, 1881.

1. Criminal law — receiving stolen goods and concealing same for gain, etc. — proof necessary . In order to convict, under sec. 239 of the Criminal Code, for receiving'and aiding in concealing stolen goods for gain, or to prevent the owner from recovering the same, etc., it is essential, first, to show that the property alleged to have been received or concealed was in fact stolen; sec- ondly, that the accused received the goods knowing them to have been stolen, guilty knowledge being an essential ingredient of the crime; and lastly, that the accused, for his own gain, or to prevent the owner from recovering the same, bought, received, or aided in concealing the stolen goods.

2. Where the owner authorizes or licenses another to receive stolen goods, and such other person receives the goods from the thief knowing them to have been stolen, with a felonious intent, he will be guilty of a felony in receiving the property, notwithstanding the license.

3. Same — receiving stolen property — must be with criminal intent. Where a defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purpose of restoring them to the owner without fee or reward, or the expectation of any pecuniary compensation, and in fact immediately after obtaining their possession restores all he receives to the owner, and is not acting in concert or connection with the party stealing to make a profit out of the transaction, lie will not be guilty, under the statute.

Writ of Error to the Criminal Court of Cook county ; the Hon. Elliott Anthony, Judge, presiding.

IS SI.] Aldrich et al. v. The People. 17

Brief for the Plaintiffs in Error.

Mr. John Lyle King, for the plaintiffs in error, after stat- ing and reviewing the evidence in detail, and in its various bearings upon the- question of guilt, among various points made the following :

1. The statute makes the receiving of stolen goods by a party for his own gain, or to prevent the owner from obtain- ing their possession, the distinctive and sole criminal element of guilt in receivers of stolen property. Without such guilty intent the crime can not be committed.

2. The restoration of the goods to the owner was the express object of the scheme of Aldrich and Isaacs, and every step taken by them for getting the property was in that direction, and there is no evidence they were at any time seeking their own gain in the transaction.

3. The shortage in the goods restored is not attributable to the plaintiffs in error. Aldrich's sole possession of the property, and his sole personal knowledge of it, were con- fined to the five or ten minutes interval of its carriage from the cigar store to the Clifton House, and then in unopened packages, and with the belief and ambition of re- storing the property intact. The shortage is no doubt attrib- utable to the thieves, who confess to having retained a portion.

4. The fact, also, that $100 of the money given to Aldrich to procure a restoration of the goods from the burglars, which was not used, was returned to the owner of the goods, shows very clearly that Aldrich did not seek or act for his own gain. If actuated by a criminal motive he would have reported its payment to the burglars.

5. On the very night of the robbery Isaacs held the chance, for his own gain, of preventing the owner from repossessing his property, by buying it himself upon his own terms, if he had so desired.

2—101 III.

18 Aldrich et al. v. The People. [Nov.

Brief for the People. Opinion of the Court.

Mr. Luther Laflin Mills, State's Attorney, for the People, in his printed argument, contended that Isaacs, the pawn- broker, and Aldrich, formerly in the police service, had learned and knew of the robbery, and knew the thieves, and concealed their names until the agent of the owner of the goods advanced money to be paid the thieves for a restora-. tion, and thereby aided in the concealment of the goods until the thieves were paid for them, and were guilty, under the statute.

That the fact of an agency for the owner existed, does not exonerate the plaintiffs in error where they aided in conceal- ing the goods for their own gain, or to prevent the owner from recovering the same until he paid money therefor, coun- sel cited 1 Wharton's Crim. Law, sec. 896, et seq., and People v. Wiley, 3 Hill, 194.

Mr. Chief Justice Craig delivered the opinion of the Court :

This was an indictment in the Criminal Court of Cook county, against Charles Aldrich and Emanuel Isaacs, for larceny. In two of the counts it was charged, in the indict- ment, that for their own gain, and to prevent the owners from again possessing their property, the defendants did buy, receive and aid in concealing the goods of certain named persons, lately before feloniously stolen, the defendants well knowing they were stolen. The jury before whom the cause was tried returned a verdict of guilty of receiving stolen property, and found the property to be of the value of $6000. The court overruled a motion for a new trial, and rendered judgment on the verdict, and the defendants sued out this writ of error.

In order to obtain a clear understanding of the questions presented by the record, a brief statement of the facts seems necessary. On Friday night, November 26, 1880, four persons, Mike Bauer, Nick Bauer, Herman Schrceder and Mathew Ash, stole a trunk from the Clifton House, in

1881.] Aldrich et al. v. The People. 19

Opinion of the Court.

Chicago, belonging to J. H. Morrow, which contained jewelry belonging to Eaton & .Faas, and Ernest Thoma, of New York, of the value of from $7000 to $8000. Morrow had the goods for sale as agent of the owners. On the night the trunk was stolen, one of the thieves, Mike Bauer, told the defendant Isaacs, who was a pawnbroker in Chicago, that he had a quantity of jewelry for sale, and offered to sell to the defend- ant^ but he declined to buy. Bauer desired the defendant to see the goods, which he promised to do at a future day. On the following Sunday, Isaacs, in company with Bauer, went to a room where the latter had the goods concealed, and looked them over, and was offered the property for $600 or $700. Isaacs declined to buy, but told him not to be in a hurry, he would talk to him the next day. On Saturday night before this occurred, defendant Aldrich, a policeman, and one Levi, were at Isaacs' place, and the robbery having been men- tioned, Isaacs remarked that he could have had the goods for a small sum of money. After obtaining this information from Isaacs, Aldrich and Levi conceived the scheme to recover the property and return it to the owners through Isaacs. On Monday a meeting was had between Aldrich and Morrow, at the Union National Bank, in the presence of Pinkerton, where Aldrich was employed as special police- man, which resulted in an arrangement that Aldrich should obtain the goods belonging to Thoma for $700, or less if he could, without disclosing the name of the person with whom he should deal, and without reward to himself, save only the reputation which he anticipated would follow the transaction, as a detective of stolen property. On the following Wednes- day Morrow paid over to Aldrich $700, on the guaranty of the vice-president of the Union National Bank that the goods or money should be returned. On the same day Aldrich paid over to Levi $600 of the money, to be paid to the party who had the goods, through Isaacs, who alone knew such party. Out of the money thus received by Levi he paid over $450

20 Aldrich et al. v. The People. [Nov.

Opinion of the Court.

to Isaacs. The $450 Isaacs paid to Bauer, who had the goods, as he testified ; but Bauer says he only received of Isaacs $300. However that may be, upon the payment of the money to Bauer, on Wednesday evening, he took the goods, and, in company with Isaacs, carried them to a cigar store and barber shop on State street. Then Isaacs notified Levi where the goods could be found, and he notified Aldrich, who went to the place designated, found the goods, and within ten minutes carried them in unopened packages, precisely as he had found them, to the Clifton Hotel, and delivered them to Morrow. Bauer represented to Isaacs that the packages returned contained all the goods which had been stolen, those belonging to Eaton & Eaas, and also those belonging to Thoma, and Isaacs and Aldrich both understood this to be the case, but upon a subsequent examination it is claimed there was a shortage of some $1300.

These are, in brief, the substantial facts, as we understand the testimony.

In the argument a number of questions have been presented in regard to the admission and exclusion of evidence, but we have concluded to base our decision on the merits of the case, and hence it will not be necessary to notice these questions.

The indictment in this case was found, and the conviction had, under section 239, chap. 38, of the Criminal Code, Eev. Stat. 1874, p. 388, which declares : "Every person who, for his own gain, or to prevent the owner from again possessing his property, shall buy, receive or aid in concealing stolen goods, or anything the stealing of which is declared to be larceny, or projDerty obtained by robbery or burglary, know- ing the same to have been so obtained, shall be imprisoned in the penitentiary," etc. On an indictment under this sec- tion of the statute for receiving stolen goods, the first thing to be proven is, that the property alleged to have been received was stolen. In this case, however, there is no controversy over that question. It is conceded that the goods in question

1SS1.] Aldrich et al. v. The People. 21

Opinion of the Court. '

were stolen. Indeed, several of the thieves who stole the property were introduced as witnesses, and testified to the larceny of the goods. After the larceny has been proven it becomes necessary to establish the fact that those accused of the crime received the stolen goods knowing them to have been stolen. Guilty knowledge on the part of the defendant is essential to the constitution of the offence. Wharton, vol. 2, sec. 1889.

The intent, as in larceny, is the chief ingredient of the offence. Thus, where A authorizes or licenses B to receive property lost or stolen, and B receives the property from the thief knowing it to be stolen, with a felonious intent, he is guilty of a felony in receiving the property, notwithstand- ing the license. Wharton, sec. 1891.

Under our statute there is another essential fact to be proven, — that is, that the defendant, for his own gain, or to prevent the owner from again possessing his property, bought, received or aided in concealing stolen goods. There is no doubt, from the evidence in this case, in regard to the fact that the defendants knew the goods were stolen. Their knowl- edge is a conceded fact. It is also an undisputed fact that the stolen goods, in passing from the custody of the thieves to Morrow, the agent of the owners, passed through the hands, first, of defendant Isaacs, and, second, through the hands of defendant Aldrich. The question in the case is then narrowed down to this : Whether defendants received the goods for their own gain, or to prevent the owner from again possessing his property. This, in our judgment, is the turning point upon which the decision of the case must hinge. In the disposition of the question we will consider the case, first, as to the defendant Aldrich, and second, as to the defendant Isaacs, as the facts relating to each defendant are somewhat different.

It is not claimed that Aldrich undertook to secure the return of the goods for any fee or reward whatever, or that

22 Aldrich et al. v. The People. [Nov.

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he expected to make any money out of the transaction. On the contrary, it was proven by the prosecution that all he wanted was the reputation of recovering the goods. Upon this point Morrow testified: "Prior to the time the goods were returned, Aldrich said he didn't expect to make a cent out of the transaction ; said this on Monday ; he never asked for any compensation, or made offer, bargain or proposition for compensation ; he said all he wanted was the glory of beating the' other fellows in getting the goods." The city authorities and Pinkerton were after the goods. He never asked a dollar. It is true he retained in his possession $100 of the money which Morrow gave to him, but this was not kept for his own benefit, but for the benefit of Morrow. Upon this point the same witness testified : "On Wednesday night he said he had got all the goods, instead of a part, and that he had saved me $100." How could he save for Morrow $100 if the money was retained for his services ? This could not be the case, as he had paid over to Levi all he received of Morrow, except this $100.

It is apparent, from the evidence, that no agreement was ever made under which Aldrich was paid anything for his services, — that he expected nothing and received nothing for the services he rendered in securing the return of the goods. How can it then be said that he received the goods for his own gain ? Nor did he receive the goods to prevent the owner from again possessing his property, but, on the other hand, he received them for the very purpose of restoring them to the owner, which he did within ten minutes from the time they came into his possession.

We will now consider the testimony as to the defendant Isaacs. He was a pawnbroker, and on the night the goods were stolen he was approached by one of the thieves, and requested to buy the goods. This he refused to do, but having obtained information as to the custody of the goods, he undertook, afterwards, to assist Aldrich in the consummation

1881,] Aldrich et al. v. The People. 23

Opinion of the Court.

f

of his scheme to obtain the goods and restore them to the owner. There was no contract or agreement under which he was to receive any pay for what he might do in the premises. All that he did was done as a favor to help Aldrich, who wanted the credit of getting the goods returned. Levi, who held $600 to be paid for the return of the goods, handed Isaacs $450, and retained the balance until it could be ascer- tained that all the goods were returned. This sum Isaacs testified he paid over to Bauer, but Bauer swears that Isaacs only paid him $300, promising to pay the balance the next day. This is the only evidence contained in the record tend- ing to show money in the hands of Isaacs as compensation for what he did in the transaction. We do not regard the evidence sufficient. Conceding that the credibility of the two men is equal, which is quite as favorable a view on the side of the prosecution as they could ask, it would leave the matter standing one oath against another, which, under the circumstances of this case, could not be regarded as estab- lishing the fact beyond a reasonable doubt.

Again, if Isaacs had been endeavoring to make money out of the transaction, it is strange he did not avail of the oppor- tunity to buy all the goods for the $600 for himself, and say nothing to the detectives in regard to the matter. This would have been the course he doubtless would have adopted had he undertaken to get the goods for his own gain. The fact that he did not take this course is a circumstance tend- ing to corroborate his evidence that all he did was without pay or reward. If, then, Isaacs received no compensation, and had no arrangement under which he was to be paid for what he might do, we perceive no ground upon which it can be determined that he received the goods for his own gain, or that he received them to prevent the owner from again pos- sessing his property, within the meaning of the statute.

It may, however, be said, that as the goods passed through defendants' hands they should be held liable for the shortage

24 Aldrich et al. v. The People. [Nov.

Opinion of the Court.

of $1300, and in this way they received the goods for their own gain. If they retained the goods that were missing there might be force in the position, but from the evidence that was impossible. Isaacs only saw the property on two occasions : first on Sunday, when he looked it over in the presence of Bauer, who does not pretend that Isaacs offered to take any part of the goods ; again on Wednesday evening, when the goods were carried by Bauer from Fourth avenue, in packages, to the cigar store. While Isaacs was in company with Bauer, at the time, it does not appear that he in any manner handled the goods. As to Aldrich, his only posses- sion of the property was during the ten minutes which it took him to carry the goods from the cigar store to the hotel, when the property was in packages, and unopened. We can see no ground upon which it can, from the evidence, be claimed that either of the defendants can be held liable for the shortage in the goods. The more reasonable view is, that the missing articles were taken by the thieves and appro- priated to their own use while they had the goods in posses- sion.

It is, however, urged, that the fact that the property could have been returned soon after the larceny for $500, and the fact that Aldrich, in his first interview with Morrow, in sub- stance said it would require $1400 to obtain the property, the long pendency of the negotiations as to the amount to be paid, and the fact that $200 more was paid to Aldrich than was demanded by the thieves, are facts which prove the motive of gain. As we understand the evidence, the defend- ants could not at any time have obtained possession of the prop- erty so it could be returned, without paying the thieves the amount of money demanded by them. The defendants can not, therefore, be blamed for the delay, as they acted as soon as Morrow furnished the money to be paid to the thieves. It is true, Aldrich, in his first interview with Morrow, expressed the opinion that $1400 would