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she had never received any rents or profits from said real estate except $45 paid to her by plaintiff in error December 21, 1908, and that the amount of rents collected by plaintiff in error was unknown to her. The prayer of the bill was for a discovery of all the rents and profits so received by plaintiff in error and for an accounting for the rents and profits collected by him during said time from said property, which she averred was owned by them as tenants in common in fee simple. Plaintiff in error filed a special demurrer, alleging as a special cause of demurrer that the recovery of the rents received by him on said property prior to the date of five years before the filing of said bill was barred by the five year Statute of Limitations. The court sustained a demurrer to that part of the bill which sought to recover rent collected more than five years before the commencing of the suit and overruled it as to the remainder of the bill. Plaintiff in error then filed an answer to the remainder of the bill, to which answer exceptions were interposed and overruled, and the court rendered a decree on the bill and answer in favor of defendant in error for $5857.09. From that decree defendant in error appealed to the Appellate Court. At the October term, 1916, of that court the decree of the circuit court was reversed and the cause remanded, the remanding order being in this language: "That this cause be remanded to the circuit court for such other and further proceedings as to law and justice shall appertain." A petition for certiorari was granted, and plaintiff in error has assigned errors in this

court.

Neither party is questioning the jurisdiction of this court to entertain this writ of error. Notwithstanding that fact the case is one of which the court has no jurisdiction, and it is our duty to dismiss it of our own motion. (City of Virginia v. Gipps Brewing Co. 136 Ill. 616.) The judgment sought to be reviewed in this case is not a ment, as has been repeatedly held by this court.

final judg

People v.

Brown, 272 Ill. 146; People v. Board of Education, 275 id. 195; Riley v. Lamson, 253 id. 258; Hagemann v. Hagemann, 188 id. 363; Trustees of Schools v. Potter, 108 id. 433; Fanning v. Rogerson, 142 id. 478.

The petition for a writ of certiorari was improperly granted in this case, and the writ of error must therefore be dismissed. Writ of error dismissed.

(No. 11485.-Judgment reversed.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. JOHN STOYAN, Plaintiff in Error.

Opinion filed October 23, 1917.

I. CRIMINAL LAW-indictment must allege all facts necessary to constitute the crime charged. An indictment or information must allege all the facts necessary to constitute the crime with which a defendant is charged, and if it does not set forth such facts with sufficient certainty it will not support a conviction.

2. SAME―when insertion of wrong name in indictment cannot be presumed a clerical error. In an indictment charging that the defendant, John Stoyan, made an assault with a deadly weapon “in and upon one John Stoyan with intent then and there to inflict upon the person of said Thomas Korshak a bodily injury," it cannot be presumed that the insertion of the name of John Stoyan was a clerical error but it must be assumed that he was another and different person than the defendant, although bearing the same name.

3. SAME-intent is the gravamen of the crime of assault with a deadly weapon. The intent is the gravamen of the crime of assault with a deadly weapon, and it must be both alleged and proved that the assault was made with the intent to inflict a bodily injury upon the person assaulted.

4. SAME-allegation of an assault upon one with intent to inflict bodily injury upon another is not sufficient. An allegation that the defendant made an assault upon one person with intent to inflict bodily injury upon another is not sufficient to charge the defendant with the commission of the crime of assault with a deadly weapon.

5. APPEALS AND ERRORS—when a constitutional question is presented though not raised in the trial court. Where a constitutional

question does not arise until after the entry of judgment, so that there is no opportunity to present it in the trial court, it may be presented in the Supreme Court on writ of error.

CARTER, C. J., dissenting.

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. JOHN A. SWANSON, Judge, presiding.

THOMAS E. SWANSON, CHARLES P. R. MACAULAY, and ARNOLD M. EHRLICH, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and C. W. MIDDLEKAUFF, (GEO. C. BLISS, of counsel,) for the People.

Mr. JUSTICE COOKE delivered the opinion of the court:

Plaintiff in error, John Stoyan, on a plea of guilty to an information filed in the municipal court of Chicago, was sentenced to serve one year in the Illinois State reformatory and adjudged to pay a fine of one dollar and costs. He has sued out this writ of error to have the record of the municipal court reviewed.

The information charged that the plaintiff in error, on April 27, 1917, in the county of Cook, "did then and there with a certain instrument commonly called a revolver, said revolver being a dangerous and deadly weapon, without any considerable provocation whatever and under circumstances showing an abandoned and malignant heart, unlawfully, willfully and maliciously make an assault in and upon one John Stoyan with intent then and there to inflict upon the person of said Thomas Korshak a bodily injury, contrary to the statute in such case made and provided and against the peace and dignity of the People of the State of Illinois." One of the contentions made is that the information does not charge the crime of assault with a deadly weapon, for which offense plaintiff in error was sentenced. By the Criminal Code this offense is defined to be an assault

with a deadly weapon, instrument or other thing with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears or where the circumstances of the assault show an abandoned or malignant heart. It is fundamental that an indictment or information must allege all the facts necessary to constitute the crime with which a defendant is charged. An indictment or information that does not set forth such facts with sufficient certainty will not support a conviction. The information in this case charges that plaintiff in error made an assault upon John Stoyan with intent to inflict bodily injury upon the person of Thomas Korshak. It cannot be presumed that the insertion of the name of John Stoyan was a clerical error, but it must be assumed that he was another and different person than the plaintiff in error although bearing the same name. The intent is the gravamen of this offense and must be specifically charged. In a prosecution for this offense it must be both alleged and proved that the assault was made with the intent to inflict a bodily injury upon the person assaulted. It is not sufficient to charge that plaintiff in error had made an assault upon John Stoyan in order to constitute this offense, but it is also necessary that it be charged that at the time he intended to inflict a bodily injury upon him. The allegation that plaintiff in error made an assault upon Stoyan with intent to inflict bodily injury upon the person of Korshak is not sufficient to charge plaintiff in error with the commission of the crime of assault with a deadly weapon. (State v. Mulhall, 199 Mo. 202.) Whether the information is sufficient to charge a simple assault is not urged on the part of the People.

Plaintiff in error contends that the Reformatory act of 1891, under which he was sentenced upon his plea of guilty, is unconstitutional, and the only question raised or discussed on the part of the People is that this court has no jurisdiction, and that the cause should be transferred to the Ap

pellate Court for the reason that the constitutional question was not raised in the court below. The constitutional question did not arise until the entry of judgment, and plaintiff in error therefore had no opportunity to raise the question in the trial court. The constitutional question is fairly raised, but as the information is wholly insufficient it will not be necessary to pass upon it.

The judgment of the municipal court is reversed.

Judgment reversed.

Mr. CHIEF JUSTICE CARTER, dissenting.

(No. 11008.-Reversed in part and remanded.)

THE PEOPLE ex rel. James E. Payne, County Collector, Appellant, vs. G. C. GRAHAM et al. Appellees.

Opinion filed October 23, 1917.

1. DRAINAGE-Farm Drainage act does not make filing of annual reports by commissioners a condition precedent to levying assessment. The Farm Drainage act has not made the filing and recording of the reports of the commissioners and the treasurer each year, or in the year immediately preceding an assessment, a condition precedent to the levy of an additional assessment.

2. SAME when drainage record sufficiently shows a deficiency. Where the last levy recorded in the drainage record was just enough to cover the deficiency then shown by the record and no subsequent levy is shown on the record for several years there is a sufficient showing of a deficiency to warrant the levy of an additional assessment.

3. SAME-notice of meeting to hear objections is jurisdictional. The notice to land owners of the meeting to hear objections, as required by the Farm Drainage act, is jurisdictional, and without it the judgment of confirmation of a drainage assessment is void.

4. SAME-findings of commissioners as to jurisdictional facts may be impeached orally. On an application for judgment for delinquent drainage assessments the findings of the commissioners as to jurisdictional facts are only prima facie evidence and may be impeached orally, as no presumptions are indulged in favor of the jurisdiction of such tribunals.

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