, 1874-02-14
over money to his SUCCESSOR in Office IL Treas
urer Of the City of Chicago:

This indictment against David 4. Gage charges
that he, on the 18th Of December, 1878, WAS,
and during the term Of three ycara and more
prior thereto bud been, the Treasurer OF the City
Of Chicago; that, as such, he had been intrusted
By Law to receive, safely keep, aud disburse
large sums Of money, did SO receive the sum Of
$507, ,703.58; that said sum was fund estab-
lished by 1aw for public purposes, and that he
did not osbu1se said sum Of money; that, on
the 9Th day OF December, 1878, his term Of Office
rs Treasurer expired that on that day Daniel
O'Harx became, was and hns since bean, the
Treasurer Of said city, as the lawful
er; that the sum Of money aforesaid
was and still is owned and is tue property of
the City Of Chicago as portion Of its revenue !;
that. on the 5th day OF Janua,y, 1874, said
0'Hara, as such Treasurer, and as successor Of
said Gage, demanded OF and from him payment
Of said sum Of money. ho, the snid Gage, being
then and there required by law to pay over the
same to his successor in Office: aud that SAID
Gage did then and there unlawfully fail to pay
over and deliver to said O'Hara rs such Treas
urer, said sum Of S507, So. contrary to tue
statute, etc.
This indictment is founded upon Sec: ~,
Chapter so, Division Z. Of the Criminal Code,
which is as follows:
II my officer Or person who nowis. or hereafter may
be- created by collect disbutse, receive or saieS
keep any 1oney moneys, revenue OF zeEeIues be-
longing this State, to the scuooi-funa o tls osae
to the school-fund Of any county or township TO any
county in this State any canal, turnpike, OF rail-
the President and Directors of the state Bauk OF 10
any fund for tho improvement Of any pubic ROAD,
river creek or other wuter-coursa bordering on or
within this State or to any other fund being, OF
hereafter to be established by Law for public purposea,
md WHO sha full or retuss to pay osr ~ .c e
Ger or persons should receive for disbursement and
h:s not disbursed, or shall collect, OF shall re-
ceiye or shall receive for 1afa-keeping, belong
ing to hi. state, to any county OF this State,
or 10 Epy such fund rs aforesaid, when such
officer person shall be thereafter required BY law
md demand duly made by the successors
Of such officer person office, or By tha officer or
person to whom such moneys, warrants, bills. notes.
o. orders ought By law to b. PAD over or NJ Or
signed md acknowledged, II such demand be pracea-
ble-eyery such officer or peraon ahal On conviction
thereof be punished BY confinement in thu Panit'n-
tary for any term not less than ~ year,
thai, {l0> years. Proriied, that no person shall be
committed to the Penitentary under this section,
il it appear that R,c, failure refusal shall 10
c1sone1 by unavoidable loss accident. Every per-
san convicted under TIE provisions Of tais seS5on
from holding any Office OF honor OF profit IN tll1a
Stete.
The defendant, by his attorneys. mada mo-
tion to qnash the indictment, which was argued
and submitted to the Court on the 30th Of Jan
uary, 1874.
In considering the motion, will take up the
in she inverse order Of their prcsen-
tetion upon the argument.
FAILURE TO ALLEGE CRIMINAL INTENT.
/. It il insisted the Indictment is defective be-
CAUSE it does not alleEe criminal intont: So fur
as this point is involved, the language Of the in
dtctmant is, that the defendant un]awfuly failed
to pay over aud deliver to his SUCCESSOR in Office
tbs sum Of money therein stated. The common
law required all offense5 ABOVE mlsdemeanora to
L.. -
tent; and that this intent should be charged in
indictments for such crimes. For acts made
criminal by statute all that ia essential to clear
Of the o1ense, 30 TINT it may be easiiy
is still. no doubt, required; but by
the statute OF tlis State the technical terms
used at common law have been dispensed with:
Every indictment or accusation Of the Grand Jury
shall be deemed sufficiently technical a2d correct
which states the oensc IN the terms and language OF
this code or 50 plainly at the nature 91 tha osnso
nteR, Eec Of Division Is page 1891
POINT orERnuLED.
The onense charged against the defendant in
this case wns created By stntute (aesuming that
to him and is in force); and that offonse is the
failure or refusal ito pay over moneys to his
successor in Office which it is alleged he had
received as Treasurer Of the City Of Chicago,
and which WAS "a fund established by law for
public purposes" The charge N the indictment 2.
with much precision and certainty as the stat
ute requires 1t advises the defendant in clear
and nnm;stakable language OF the specific charge
against him, and SO plainly "that the nature Of
tie offeIse may be easily understood by the |
jury" and in such terms as rill enable him IS to
plead previous conviction acquittal If he |
shvuld be again arraigued for the same ofensc."
rh3 Supreme Court of this State has, in :. num-
Der Of cases, held the indictments good where |
40 criminal Or felonious intent was charged in !
The commission OF sets which were not felonies |
1T common law, hut we're made so BY statutes OF !
his State: Miller Y. The People, Scamnon, !
235; Quigley =. The People, 5 Scammon. Sol |
Connolly =. The People. Scammon, 476; Ellis |
The People. scannoa 498; Mobler =. The
People, % Illinois 26; Morton v. The People,
he learned council for the defendant, viz; l
Wharton, G. L., Sec. 2s7; Bishop, c. T., Secs. !
1872, 270, 429; Commonwealth Y. Stout, I Ben |
uouroe 247, holding that 81 Where tho criminal
ntent il wanting. the accused commits no Of
enas , tn 10 l1w tdhogsh ae e9nes completely viii
Icts, being entirely silent concerning the in-
ent, do not sustain the position that this in
lictment is bad, for the reason that it does not
llese that intent; for the statute
es and Stats cSasda as shG"p b. + e IS snDrss
>ourt) expressly dispenBes with the necessity
Il such averment, and requires only that the Of
enea should be stated in the terms sad language
# the code. When every fact necessary to con-
5itute the ohcnse is necessarily implied by fol-
owing the language Of the statute. then tho ill.,
ictment in that language is undoubtedly sufi-
lent, and was go held by tho Court Of Appeals
n Kentucky, in Ben Munroe, slpra, referred
0 by defendants council. But it is insisted
hat there is q distinction between an act which,
q its common or legal usage, implies criminal
Intention, and one that is in Itself innocent
lat, in tho one, all that is required is al
OF the commission of the act in |
he language OF the statute, and il the
ther, such additional arer1ncnts Us In connec-
ion with the act make upon the face Of the in-
ictment crime. This is answered by the
tatement that the statute itself makes the
pecldc oct charged against the defendant illegal
nd felonious, aud it is one which cannot be |
ommisted without the luoSledgo aud bad in
ant OF the person guilty OF it. In law and in
egal usage, therefore, it implies criminal In
Entlon. Where statement Of thn act itself !
ecessar1y includes knowledge of the illegality |
the act, no ayertnent OF knowledge or bad in
snt is necessary" l Wharton's G. L., Sec. 2s7
An authority cited by one Of the defendants !
ttorneys.
RECENT DECISIONS.
This question has very recently again been
attled and put beyond all doubt BY two de-
lslons OF the Supreme Court Of this State,
hich have not yet beeo reported except in the
ewspapers; In Mr. Cutchcn =. The People,
hich 1sns an indictment for selling Intoxicating
quors to 3 minor without a written order from
=