Dreyer v. Illinois

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By an indictment returned in the criminal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having failed to turn over to his successor in office, as treasurer of the West Chicago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40,-said commissioners constituting a board of public park commissioners appointed by the governor and confirmed by the senate of Illinois, and, as such, having the supervision of the public parks and boulevards in the town of West Chicago, and authority under the law to collect and disburse moneys, bonds, etc., for their maintenance.

The indictment was based on § 215 of the Criminal Code of Illinois, which is as follows:

'If any state, county, town, municipal, or other officer or person who now is or hereafter may be authorized by law to collect, receive, safely keep, or disburse any money, revenue, bonds, mortgages, coupons, bank bills, notes, warrants, or dues, or other funds or securities belonging to the state or any county, township, incorporated city, town, or village, or any state institution, or any canal, turnpike, railroad, school, or college fund, or the fund of any public improvement that now is or may hereafter be authorized by law to be made, or any other fund now in being or that may hereafter be established by law for public purposes, or belonging to any insurance or other company or person required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need not be made when, from the absence or fault of the offender, the same cannot conveniently be made: And provided, That no person shall be committed to the penitentiary under this section unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident. Every person convicted under the provisions of this section shall forever thereafter be ineligible and disqualified from holding any office of honor or profit in this state.' Hurd's Rev. Stat. 1901, § 215, p. 630.

A trial was commenced on the 29th day of August, 1899, and a jury was impaneled and evidence heard. The jury, not having agreed upon a verdict, were discharged.

A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court.

On motion of the state the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court.

There was a second trial, which resulted in the defendant being found 'guilty of failure to pay over money to his successor in office, in manner and form as charged in the indictment,' the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confinement in the penitentiary.

The defendant, upon written grounds filed, moved for a new trial, and also moved in arrest of judgment. Both motions were overruled, and it was ordered and adjudged that the defendant be sentenced to the penitentiary 'for the crime of failure to pay over money to his successor in office, whereof he stands convicted.'

The judgment of the trial court having been affirmed by the supreme court of Illinois, the case is here upon writ of error allowed by the chief justice of that court.

Messrs. Alfred S. Austrian, T. A. Moran and Levy Mayer for plaintiff in error.

Messrs. H. J. Hamlin and Charles S. Deneen for defendant in error.

Mr. Justice Harlan, after stating the facts as above reported, delivered the opinion of the court: