(125 Ill. 348)

FIESTER . PEOPLE.

(Supreme Court of Illinois. June 16, 1888.)

BURGLARY-EVIDENCE.

In a trial for burglary, the evidence showed that defendant had been in the saloon, which it was alleged he was attempting to enter, on Sunday morning, and obtained a drink. He went out, and, on returning the same morning, found the door closed, and was seen with his body leaning half over the top of a window, which had been left down, and, on being asked what he was doing, said he wanted whisky. Held not sufficient evidence to sustain a conviction.

Error to circuit court, Iroquois county; ALFRED SAMPLE, Judge. Payson & Raymond, for plaintiff in error. George Hunt, Atty. Gen., and R. W. Hilscher, State's Atty., for defendants in error.

SCOTT, J. At the November term, 1887, of the circuit court of Iroquois county, an indictment was presented in open court against John Fiester charging him with an attempt to commit burglary It is averred the accused at

tempted to break into the stcre-house of one George Laub with intent to steal the goods of the said Laub, kept in such building. On the trial, defendant was found guilty, and the punishment he should suffer was fixed, by the verdict of the jury, at one year in the penitentiary. A motion for a new trial was overruled, and the court pronounced judgment on the verdict. It is to reverse that judgment defendant brings the case to this court on error. Numerous errors are assigned on the record but, in the view taken, it will only be necessary to consider the sixth of the series, viz., the verdict of the jury is against the law and the evidence. The store-house it is alleged defendant attempted to break and enter was occupied by the prosecuting witness, Laub, as a saloon, in which he kept for sale the usual stock of liquors. It is situated in the midst of the village or little city Watseka. That which was done by accused was done on Sunday morning, about 11 o'clock, on a day in the month of May, and at an hour when it might be supposed persons were passing and repassing. The witness, Williams, had been in the saloon that morning, and he, with another person, had been scrubbing the room, and after they got through, before leaving, as they did shortly after finishing their work, they "left the top window down, to air it out." That was a window in the rear of the building. There was also a door in the rear end of the room, through which the evidence tends to show persons who desired to visit the saloon on Sunday entered. Defendant says he had been at the saloon, and entered by that door on that morning, and obtained some whisky. When Williams left the saloon he went out at the front door, but on his return, shortly thereafter, he went down the alley to the rear of the saloon. It was there he saw defendant "leaning through top of the window. His body was about half way over. The screen was torn off. *** I asked him what he was doing. He said he wanted whisky." This is the substance of all that is alleged by the prosecution against defendant. The accused was a witness in his own behalf, and the explanation he gives of his conduct is as follows: "Remember of being at the rear end of his saloon on the Sunday in question. Had been there before on that morning, and had been in the saloon. Albert Williams, Trammel, and two or three more were there. I got liquor there that morning. It was about an hour and a half after this that I went back the second time. Went back there for the purpose of getting a drink. I went back there, and looked through the key-hole. I thought they were in there, and that they were playing 'shenanagen' on me. I went to the window, and looked over. It was down at the top. When I was spoken to, I said, I want whisky.' I rapped on the door when I went there. I says, 'Are you in?' and nobody answered me. I thought they were in the room, and would not let me in. Had no other object or purpose there, only to see if some one was in there. I only wanted to see if somebody was there." While defendant's

conduct is not free from censure, the evidence is hardly sufficient to show he attempted to commit a burglary. The time, place, and all the circumstances are inconsistent with that theory of the case. The accused had purchased whisky at the saloon that morning, and had drank it, and, no doubt, he was much under its influence. It had inflamed his desire for more, and he returned with a view to obtain it. That is a reasonable explanation of his conduct. It may be true, as he relates in his testimony, he thought there were persons in the saloon, and that they would not open it to him. Conceding that to be all he did, of course it falls short of proving him guilty of the attempt to commit burglary, and the judgment is warranted neither by the law nor the evidence. The judgment will be reversed, and the cause remanded.

(125 III. 256)

THOMPSON et al. v. PEOPLE.

(Supreme Court of Illinois. June 16, 1888.)

1. RECEIVING STOLEN GOODS-VERDICT-VALUE of Goods.

Under Rev. St. Ill. c. 38, § 239, providing that the punishment for receiving stolen goods shall be imprisonment in the penitentiary not less than one nor more than ten years, or, if the goods do not exceed the value of $15, a fine not exceeding $1,000, and confinement in the county jail not exceeding one year, the jury must find the value of the property, or a conviction cannot be sustained.

2. INDICTMENT-JOINDER OF PARTIES And Offenses.

The joinder of two counts for burglary and larceny with a count for receiving stolen goods in an indictment against three, on which two defendants are found guilty of burglary, and one of receiving stolen goods, is not ground for arrest of judgment, where the bill of exceptions shows only the instructions given and refused, and the rulings thereon.

8. CRIMINAL LAW-APPEAL AND ERROR.

Instructions will not be reviewed where the evidence is not brought up with the

record.

Error to criminal court, Cook county; R. S. WILLIAMSON, Judge. Donahoe & David, for plaintiffs in error. George Hunt, Atty. Gen., for the People.

SCHOLFIELD, J. An indictment was returned by the grand jury of Cook county against John Thompson, E. M. Showles, and Harry Stillman. The indictment contained three counts. The first and third were for burglary and larceny, and the second was for receiving stolen goods. The defendants severally pleaded not guilty. On trial in the criminal court of Cook county, the jury returned the following verdict: "We, the jury, find the defendants John Thompson and Harry Stillman guilty of burglary in manner and form as charged in the indictment, and fix their punishment at imprisonment in the penitentiary for the term of eight years each. We, the jury, also find the defendant E. M. Showles guilty of receiving stolen property in manner and form as charged in the indictment, and fix his punishment at imprisonment in the penitentiary for the term of two years." Motion for new trial was made by the defendants, and allowed as to Stillman, but overruled as to the other defendants. They then moved in arrest of judgment, but the court overruled the motion, and entered judgment upon the verdict.

The judgment as to Showles cannot be sustained. Our statute provides that "every person who for his own gain * * * shall buy, receive, or aid in concealing stolen goods, * * * or property obtained by burglary, * * * knowing the same to have been so obtained, shall be imprisoned in the penitentiary not less than one nor more than ten years, or, if such goods or other property or thing does not exceed the value of $15, he shall be fined not exceeding $1,000, and confined in the county jail not exceeding one year." [Rev. St. Ill. c. 38, § 239.] It is therefore necessary, in such cases, that the Jury shall find the value of the property; otherwise it cannot be known that

they have rendered the proper verdict. Tobin v. People, 104 Ill. 565; Sawyer v. People, 3 Gilman, 53.

The question next presented is whether the judgment can be sustained as to Thompson. We are to assume, from this verdict, that these parties were not jointly guilty under either count. Does, then, the fact that they are guilty of distinct offenses, though it may be arising out of substantially the same transaction, nullify each conviction? The joinder of these counts for the purpose of stating in different ways a single offense occurring in the same transaction was allowable, and the indictment could not have been quashed for that reason. Lyons v. People, 68 Ill. 271; Tobin v. People, supra. The offense was several, and one might therefore have been found not guilty, and the other guilty. Baker v. People, 105 Ill. 452. The bill of exceptions before us shows only the instructions given and refused, and the rulings thereon. The presumption, therefore, is that the ruling of the court upon every point of practice not embraced in the motion to arrest, and the rulings upon instructions, was correct. Gill v. People, 42 Ill. 321; Earll v. People, 73 Ill. 329; Holmes v. People, 5 Gilman, 478. There was no plea in abatement; no motion that the parties be tried separately. We must suppose that the evidence sustained the verdict, and that no objection was urged that evidence was admitted which was applicable to the one, but which was not applicable to the other, defendant; for until the contrary be shown it will be presumed that the court decided correctly. Railroad Co. v. Miller, 62 Ill. 468. The rule, then, applicable here is thus stated by BULLER, J., in Young v. King, 3 Term R. 106: "On the face of an indictment, every count imports to be for a different offense, and is charged as at different times; and it does not appear on the record whether the offenses are or are not distinct. But if it appear, before the defendant has pleaded, or the jury are charged, that he is to be tried for separate offenses, it has been the practice of the judge to quash the indictment. * * * But these are only matters of prudence and discretion. If the judge who tries the prisoner does not discover it in time, I think he may put the prosecution to his election on which charge he will proceed; * * * but, if the case has gone to the length of a verdict, it is no objection in arrest of judgment. If it were, it would overturn every indictment which contains several counts. So, where the evidence affects several prisoners differently, I have, as was done by Mr. J. YATFS at Hereford, selected the evidence as applicable to each, and left their cases separately to the jury. * ** But all these are mere matters of discretion only, which judges exercise in order to give a fair trial; for, when a verdict is given, they are not the subject of any objection to the record."

Objections are urged to certain instructions given in behalf of the people. But it is impossible to say, unless the evidence were before us, whether these objections are tenable. An instruction is to be determined solely with reference to the issues, and the evidence before the court. It may lack in fullness and accuracy of definition; yet, if the respect wherein it thus lacks is impertinent to anything before the court, it will be unimportant. An instruction may be very inaccurate as an abstract definition, yet entirely accurate in its application to the question to be passed upon by the jury. And so, on the other hand, it may be entirely accurate as an abstract definition, yet misleading, and therefore erroneous, if applied to the question to be passed upon by the jury. Moreover, a case may be so clear, under the evidence, that we can see that no other verdict could have been rendered than that which was rendered by the jury; and in such case we always refuse to reverse for mere error in the instructions. The judgment is affirmed as to Thompson; but as to Showles the judgment is reversed, and the cause is remanded for a new trial.

(125 Ill. 426)

SINGER, NEMICK & Co. v. STEELE.
(Supreme Court of Illinois. June 16, 1888.)

1. ATTORNEY AND CLIENT-COMPENSATION-EXTRA SERVICES.

An attorney agreed to collect and remit certain notes for a fixed fee, which at the time were regarded good, but, before they all became due and collected, the makers failed, and the attorney was compelled to take an assignment of other demands as collateral security for the notes, which required additional labor and expense to collect. Held, that he was entitled to extra compensation therefor above the fee agreed on, whether done in person or by his law partner.

2. EQUITY-MASTERS IN CHANCERY-REPORTS-WAIVER OF OBJECTIONS.

Where the trial court determines the basis of a report, and sends the case to a master for an account, matters reported by him, and not excepted to in that court, will be taken as acquiesced in.

Appeal from appellate court, First district.

Bill for an account filed by Singer, Nimick & Co., a corporation, against its attorney, Henry T. Steele, in the superior court of Cook county. The case was heard in that court before H. M. SHEPARD, J., and appealed to the appellate court of the First district, and thence by plaintiffs to this court.

Gardner, McFadon & Gardner, for appellants.

Appellee, being appellants' employed attorney, cannot avoid liability for all collections made, or which might have been made, by turning the business over to another attorney, (Walker v. Stevens, 79 Ill. 193; Pearse v. Green, 1 Jac. & W. 135;) and for a stronger reason, when the business is intrusted to a law partner. Weeks, Attys. § 314.

John McGaffey, for appellee.

SCOTT, J. This appeal is from a judgment of affirmance by the appellate court of the decree rendered by the trial court in the case of Singer, Nimick & Co. against Henry T. Steele. The bill, as originally framed, prays for an account of all transactions of defendants in respect to the disposition made of certain notes taken from the Chicago Plow Manufacturing Company in exchange, or as collateral thereto, for complainants' claim against one N. S. Bouton, and of "all collections thereof made by him, or which, without his defaults, might have been received." The bill was afterwards amended, by leave of the court, by inserting in the place of "or which, without his defaults," as follows: "or which, without his willful defaults or neglect." It is seen the evidence was quite sufficient to warrant the interlocutory decree that was rendered. It proceeded on well-recognized equitable principles. The only questions that can arise as the case comes before this court are: (1) Whether defendant could rightfully charge additional compensation, under the circumstances, for the services of the person he employed to assist him about the business of complainants; and (2) whether any portion of complainant's claim was lost through the "willful default or neglect" of defendant. It seems the relation of client and attorney existed between the parties to this litigation; and that, while such relations existed, complainants placed in the hands of defendant for collection a claim of $15,720 against N. S. Bouton. That claim was compromised by defendant with the debtor by taking, in the settlement, lands valued at about $7,500; cash, $1,120; and notes of the Chicago Plow Manufacturing Company for $7,200, which notes were made payable to the order of defendant for the convenience of collection. These notes became due and payable at stated periods. That settlement of the claim was fully approved by complainants, and no complaint is made on that ground. It was agreed defendant should receive $500 for his services in making that settlement, and for his further services in collecting the notes as they should fall due, and remitting the proceeds. That sum defendant retained out of funds in his hands, with the approval of complainants. At the

time these notes were taken it was thought by all parties concerned the Chicago Plow Company was entirely solvent; but, before all the notes were paid, that company failed; and, in order to secure the notes in question, the company assigned certain claims it had against its customers to defendant and J. Blackburn Jones as collateral security for its unpaid notes to defendant for the benefit of complainants. It was for the services of Jones in trying to collect these collaterals that defendant charged additional compensation, and which was allowed to him by the decree of the court. In the decree in this respect it is not perceived there was any error. The $500 it was agreed should be paid to defendant was for his services in making settlement of complainants' claim against Bouton, and for collecting and remitting the notes of the plow company "as the paper falls due." As before remarked, it was then thought the plow company was solvent, and its notes in the hands of defendant would be paid in the manner agreed upon. It was not contemplated defendant would undertake the collection of collaterals assigned to him and his partner, Jones, without further compensation. That was not his contract. All he agreed to do in the future, for the $500 paid him, was to "collect and remit" the notes of the plow company as the same became due. So far as the notes were paid by the plow company in accordance with the agreement, defendant observes his contract in that respect. The collaterals assigned to defendant and his partner were upon persons residing in other states, and far distant from the residence of defendant; and it would be an unreasonable construction of his contract that he should go to such distant points to make collections of collaterals not contemplated by his agreement. Nor was he bound to go in person. It was entirely proper that he should employ any competent person to make, or endeavor to make, collection on the collaterals.

As respects the second question, it is sufficient to say it does not appear defendant failed to make collections, either on the notes taken from the plow company, or on the collaterals assigned to him and his partner, by "his willful defaults or neglect," or otherwise. Reasonable diligence was shown in efforts to collect the collaterals placed in his hands, and that is all the law requires. The cause was referred to the master in chancery to take an account in accordance with the directions given in the interlocutory decree. The master heard evidence, and stated an account between the parties; and, as no exceptions were taken to the report, the court decreed according to his findings, except as to the finding as to the allowance of extra compensation to defendant for legal services, a part of the amount having been reinitted by defendant. The practice is, where a party is dissatisfied with the finding of the master in chancery, he shall make distinct exceptions, so that the court can readily understand what matters are at issue between the parties; otherwise it will be understood he acquiesces in the conclusions and findings of the master. According to the well-settled practice, the court in this case first determined, by its interlocutory decree, the rights of the parties, and fixed the basis upon which the account should be taken, and then referred the cause to the master in chancery. On the coming in of his report, if either party was dissatisfied with its conclusions or findings, it was his privilege to file exceptions, specifically pointing out any errors thought to have been made by the master, which could be readily determined by the court. That was not done by complainants, and they will not now be heard to make objections to the master's report which they did not make and insist upon in the trial court. judgment of the appellate court will be affirmed.

The