Murphy v. People (19 Ill. App. 125, 1886)

Wilkin, J.

It is urged, first, that the indictment under which defendant was tried is fatally defective in not averring that defendant knew of his insolvency and in not averring fraudulent intent. “ Where the guilty knowledge is part of the definition of the offense it must be averred, but not otherwise.” Wharton on Criminal Law, Vol. 1, Sec. 297.

The intent is not an element of the crime and need not therefore be averred. The indictment charges the offense in the language of the statute, and under Sec. 408, C. 38, R. S., is sufficient.

We think there is a sufficient compliance with the constitutional requirement in the entitling of the act under which the indictment is drawn. The motion to quash the indictment was properly overruled. On the motion of defendant for change of venue many affidavits were filed pro and con. Some of these amount to no more than the statement of an opinion that the defendant can or can not have a fair and impartial trial. Others, however, affirm and deny the facts alleged in the petition. Sec. 22, C. 146, R. S., clothes the trial court with a discretionary power in passing upon such motions; he “ may grant or deny the petition, as shall appear to be according to the right of the case.” There is nothing in this case to show that the discretion has been abused and hence it is not for this court to interfere.

It was no doubt irregular for the presiding judge to absent himself from the c.ourt room, leaving a member of the bar upon the bench during the progress of the argument to the jury, hut we are not prepared to hold, in the absence of all evidence to show that the defendant was prejudiced thereby, that the ca-'e ought for this irregularity to be reversed. The case is distinguishable from that of Meredith v. The People, 84 Ill. 479. In that case the judge was engaged in the trial of other cases. The member of the bar called to preside at the criminal trial having no judicial powers whatever, there was no presiding judge, the judge of the court being incapable of presiding over the trial of- two cases at the same time. In this case the absence of the judge was but temporary, and there is no pretense that he was so engaged that he could not at any moment resume the bench and pass upon any question which might arise. The calling of a member of the bar to the bench was of no consequence; the judge, though temporarily off the bench, or even out of the court room, was still the presiding judge at the trial.

The ninth error is not well assigned; there is nothing to show that the court refused" to allow defendan M challenge of jurors, or that defendant challenged the panel. It is difficult to tell from the argument, whether the remarks of the judge during the impaneling of the jury are made the ground of exception because they were prejudicial to the defendant, or because they were offensive to counsel ;• but there’is certainly nothing in the record to show that the defendant was not fairly allowed all the challenges he chose to exercise.

It is insisted that there can be no conviction, under the statute, unless there is an entire 'loss of the deposit — viz., all must be lost.

The construction contended for is supported by no authority, is unreasonable, and would render the statute absolutely nugatory.

It would scarcely be insisted that the indictment must state the exact amount of the deposit.

It is unnecessary to prove the value laid in the indictment unless the precise sum forms the essence of the offense, or is stated as a matter of description. Wharton on Criminal Law, Vol. 1, 613.

The mathematical exactness insisted upon by the defendant in this case as to proof of the loss is never required. The extreme case put by counsel w