¶1dissenting:
¶2I cannot concur in the decision arrived at in the majority opinion or the views therein expressed.
¶3The defendant was previously before this court on charges of a civil contempt of the probate court of Cook county, growing out of some of the transactions involved in this case and the writer concurred in the opinion which was handed down at that time. Defendant now comes before this court charged in an indictment by the grand jury with the crime of conspiracy to defraud. A different situation is here presented and, whether defendant is innocent or guilty, he is entitled to be tried according to the laws of the State in order to determine that fact. I am of the opinion that this was not done. Defendant did not plead guilty. Even if he were guilty, it must be remembered the Supreme Court has many times said that the laws of this State apply to the guilty as well as to the innocent and a conviction cannot be secured excepting under the laws which apply equally to all.
¶4Where a person is convicted by a jury, that conviction should be based upon the hearing of charges as contained in the indictment which should allege that defendant is guilty of violating a law and that someone was unlawfully injured as the result of the acts of the defendant. The jury should not be misled by erroneous instructions as to the law such as the record shows occurred in the trial of this cause.
¶5Sufficient prejudicial errors were committed which entitles the defendant to a reversal of said judgment and a remanding of the cause for a new trial.
¶6To substantiate my opinion I am setting forth the following:
¶7The indictment should have been quashed for the reason that the “Estate of James Thomas Kelly”— which the indictment asserts was defrauded — is not a person, corporation or a legal entity as the statute prescribes. The only persons who could have been defrauded were the possible beneficiaries, such as the heirs, devisees or legatees, or the State, who, if unknown to the grand jury, could be so alleged.
¶8In People v. Ernst, 306 Ill. 452, the court, at page 457, said:
“To constitute the crime of forgery of an instrument it is necessary for the prosecution to prove the forgery was committed with the intent to defraud some person named. (Fox v. People, 95 Ill. 71.) ”
¶9As was said in the case of Downey v. Grigsby, 251 Ill. 568, 572: “The ordinary meaning of the words ‘revert to my estate’ is, ‘return to the aggregate of all the property which I may leave at my death. ’ . . . The word ‘estate’ is not equivalent to ‘heirs.’ When a man makes a will the business in which he engages is the distribution of his estate, usually among his heirs and perhaps other persons. The estate is the subject matter with which he deals; the heirs are possible distributees.”
¶10On the death of a landowher intestate the title to the land vests at once' in his heirs-at-law under the statute of descent. The heirs hold title in their own right, subject only to the payment of the debts of their ancestor for the purposes as described by law, and may sell and convey their title without hindrance. Anderson v. Shepard, 285 Ill. 544.
¶11In the case of People v. Krittenbrink, 269 Ill. 244, the court said:
¶12“The ownership of the property was a necessary averment of the indictment and it was necessary to prove such ownership as alleged.” This would be equally true in an indictment for a conspiracy to forge or defraud.
¶13It is at once apparent that the “Estate of James Thomas Kelly” does not imply the same to be a person, corporation or an entity that may be the owner of the property or have an interest therein. The “Estate of James Thomas Kelly” could not take title to such property, it could not sue or be sued and it could not be charged with a crime. It could not be deceived and does not possess the capacity to sustain an injury of any kind. Such combination of words is merely a phrase or title to describe certain proceedings and does not designate the owners or beneficiaries of the properties involved. Consequently, the counts which charge the defendant with being guilty of defrauding the property instead of the owners thereof cannot stand.
¶14Count 13 of the indictment charges several offenses in one count, namely, “with intent to thereby prejudice, damage and defraud any persons, any body politic and any body corporate that would be lawfully entitled to receive said money and property.” This language is too vague and indefinite. No evidence is offered to show who these defrauded parties were. Even assuming that the estate of James Thomas Kelly is, as the majority opinion assumes, a sufficient entity, no evidence was introduced in the record to show that in fact there were “any persons, any body politic and any body corporate that would be lawfully entitled to receive said money and property. ’ ’ The jury was left to guess who these parties might be.
¶15I do not believe the State should have been permitted to offer over objection of defendant in its case in chief the testimony of the court reporter who read from his notes taken at the time Judge O’Connell of the probate court conducted the examination of the defendant in the contempt proceedings in that court. To have permitted this to have been done was in direct violation of section 9 of Article 2 of the Constitution-which guarantees the right to “meet the witnesses face to face.” The evidence shows that while the defendant was on the witness stand, the probate judge examined him at length. The court made statements of fact while examining the witness implying defendant ’s guilt or his attempt to conceal the facts. To have permitted that testimony to have been read by the court reporter to the jury in this criminal case was not only a violation of defendant’s constitutional rights, but the evidence itself was highly prejudicial and I think the court erred in so doing.
¶16Instruction No. 2 for the State purports to define the crime of forgery and in its description it recites the statute verbatim and tells the jury that “every person who shall utter, publish or pass,” etc., which manifestly was a very prejudicial instruction for the reason that all the counts in the indictment charging forgery were quashed. The defendant was not being tried for the violation of the statute on forgery. The jury would be very likely to take this instruction to mean that the defendant was guilty, without the necessity of proof. As was said in the case of People v. Corbishly, 327 Ill. 312, at page 338: “The vice of giving abstract propositions of law as instructions to a jury is, that the jury are too liable to arrive at the conclusion that the court thinks that the facts stated in such an instruction on which the proposition of law is based have been proved, while the law is that the jury should be required to make the proper finding on such facts.” .
¶17In the case of People v. Crane, 302 Ill. 217, at page 227, the court said: ‘1 Counsel for the State argue that it is not error to give an instruction in the language of the statute. This is sometimes true, but' where the statute defines more than one crime, as is the case in the section referred to, such rule cannot apply. The contemplation of the law is that the jury shall be instructed only concerning the crime of which the defendant stands charged, and it is not a sufficient answer to say that the instruction is in substantially the language of the statute. (People v. Jones, 263 Ill. 564.)”
¶18Instruction No. 11 is a mere recitation of the statute, which says: “All wills and testaments,” etc. The defense in this case was that the defendant intended to make a nuncupative will — a spoken will — disposing of personal property of the deceased; that the defendant was not contending that the will as filed came under section 2 of the act in regard to wills, but that it came under chapter 148, par. 17, Ill. State Bar Stats. 1935, which provides for nuncupative wills. The defense rightfully claims that in stating the law as it did in this instruction, the court entirely destroyed and eliminated a consideration of the defense urged by the defendant relating to nuncupative wills.
¶19Instruction No. 24 for the State minimized the testimony of the judges and others who testified as to the good reputation of the defendant in the community prior to the time of the indictment and attempted to minimize the probative force of such evidence. Said instruction reads in part as follows: “. . . that such evidence is permissible under the law, and is to be by the jury considered as a circumstance in this case. ’ ’ The record shows that this evidence was offered and not contradicted. The language used in this and similar instructions was by implication condemned in the case of People v. Munday, 280 Ill. 32, 64. The jury should have been told that it was to be considered as competent evidence and not as a circumstance in the case.
¶20Instruction 27 is a lengthy instruction relative to the testimony given by defendant at the trial and contains the following language:
“. . . and in determining the degree of credibility that shall be accorded to his testimony, the jury have a right to take into consideration the fact that he is interested in the result of the prosecution, as well as Ms demeanor and conduct upon the witness stand; and the jury may also take into consideration the fact, if such is the fact, that he has been corroborated or contradicted by credible evidence, or by facts and circumstances in evidence.”
¶21As the Supreme Court said of a similar instruction in the case of People v. Washington, 327 Ill. 152, at page 158: “It was error to give this instruction in
¶22this case, as it applies these rules to the testimony of plaintiff in error without applying them to the testimony of the other witnesses.”
¶23It is not a sufficient answer to these palpable errors to say that the defendant is guilty. A trial by jury is the method provided by law for determining such a question and the trial should be conducted according to the law which in this case, as shown by the record, was not done.
¶24In view of the errors committed at the trial, to which I have called attention, I feel impelled to dissent from the majority opimon. I believe that the judgment of conviction should be reversed and the cause should be remanded for a new trial.