Shirk v. People

Mr. Justice Mulkey delivered the opinion of the Court: At the December term, 1886, of the circuit court of Stephenson county, Daniel F. Shirk was tried and convicted of the crime of uttering and publishing an alleged fictitious instrument in writing, for the payment of money, his punishment being fixed at two years confinement in the penitentiary. By the present writ of error we are asked to review that conviction. The indictment is founded on the 107th section of the Criminal Code, which, so far as it is supposed to have any application to this case, is as follows: “Whoever shall make, pass, utter or publish, with an intention to defraud any other person, any fictitious bill, note or check, purporting to be the bill, note or check, or other instrument of writing for the payment of money or property, of some *' * * individual, when in fact there shall be no such * * * individual in existence, the said person, knowing the said bill, note, check, or instrument of writing for the payment of money or property, to be fictitious, shall be imprisoned in the penitentiary not less than one nor more than twenty years.” The count in the indictment upon which the defendant was convicted, charges, that on the 20th of July, 1885, in Stephenson county, in the State of Illinois, Daniel F. Shirk feloniously did utter, publish and pass, as true and genuine, a certain false and fictitious instrument of writing for the payment of money, to one Harvey F. Perkins, he being then and there the H. F. Perkins in the instrument mentioned, which instrument then and there purported to have been signed by one Morton Walldecker, when in fact there was no such individual in existence, said Shirk then and there knowing said instrument to be false and fictitious, with intent thereby then and there to defraud said Harvey F. Perkins, which instrument is of the following tenor: “Harvey F. Perkins’ Marble and Granite Works, Lena, III. Adline, July 17, ’85. “I have this day bought of H. F. Perkins, marble gravestone, of the following size: .....feet,.....inches long, by.....inches wide,.....inches thick, to be in style and finish of No.....of his drawings or photographs. One..... one marble monument of the following size: Limestone base, 1-0 x 2-2 x 2-2; marble base, 0-10 x 1-7 x 1—7; die, 2—2 x 1—2 x 1-2; 0-5 x 1-1J x 1—Ij-; 0-1 x 1—6 x 1-6 ; plinth; column ; cap; urn, 1—5 x v-9 x v-9; final, statuary, to be in style and finish of No.....of his drawings or photographs, with the exception of.................. To be inscribed as follows: .......................................... “To be delivered and set in Foreston freight office, Ogle Co., 111., on or about the 5th day of November, 1885, or as soon as convenient thereafter, for which I agree to pay the sum of $165 on delivery of said monument. “Dated at Adline, this 17th day of July, 188 . Morton Walldecker. “P. O. address: Adline, County of Ogle, State of Illinois. ” The principal question presented for determination is, "whether, assuming the instrument set out in the indictment to be fictitious, is it such a one as falls within the category of instruments contemplated by the section of the statute above cited. If it does not, of course the conviction can not be sustained, and it will therefore be unnecessary to consider other questions discussed in the briefs. It is clear that the instrument is neither a bill, note, nor a check, according to either the popular or technical signification of those terms, and this is practically conceded by counsel for the State; but the contention is, that it is embraced within the general designation, “other instrument in writing. ” This phrase seems to have been first introduced into our statute relating to negotiable instruments, in 1827, and it has from that time till the present, been the settled construction of this court, that in that connection it extends only to such instruments in writing as contain an absolute or unconditional promise to pay money or property to the payee therein named, or his assignee. This construction is fully recognized and approved in the late case of Canadian Bank v. McCrea et al. 106 Ill. 281. In the section upon which the indictment is fOund'ed, the enumeration is, “fictitious bills, notes, checks, or other instrument in writing. ” In the act relating to negotiable instruments, it is, “all promissory notes, bonds, due-bills, and other instruments in writing." Considering the expression, “other instrument in writing, ” as it occurs in the Criminal Code, is taken from the act on negotiable instruments, and that it follows, in both acts, a specific enumeration of the same kind or class of 'instruments, there is certainly much force in the claim that its construction should be the same in both acts. This conclusion is certainly much strengthened by the fact that it is in strict conformity with the well recognized rule of construction, that “if general words (as is the case here) follow an enumeration of particular cases, such general words are held to apply only to eases of the same kind as those which are expressly mentioned. ” Potter’s Dwarris, 247, 248 ; In re Swigert, 119 Ill. 83. Applying this principle to the present case, it is very clear the expression, “or other instrument in writing, ” would only include such instruments as are of the same class or kind as. those mentioned, which would include, money bonds, due-bills, and all other instruments in writing containing an absolute, unconditional promise or obligation to pay a sum of money or personal property. If this is not the test, where is the line to be drawn? It certainly could not have been intended to-include all written contracts, which, if genuine, one or the-other of the contracting parties would, upon certain contingencies, be required to pay money or property under,—such, for instance, as a contract for the purchase of a horse, to be paid for on delivery at a future day. The instrument or contract, in question does not, in principle, differ from the ease suggested. It is, in form, a contract in writing for the purchase-by Walldecker, from Perkins, of a marble monument, to be delivered on a future day, and paid for on delivery. • By the terms of the instrument it was wholly uncertain whether the-money would ever become payable. That depended altogether upon whether the monument was put up and tendered at the time and place specified in the instrument. If the statute was intended to extend to a fictitious contract like this, then it would apply to every executory contract where either of the parties bound himself to the other, though upon a mere contingency, for the payment of money or personal property. This can not be a proper construction of -the statute. If such was the intention of the legislature, the language used certainly fails to express it. Contracts like the one under consideration, are seldom, .if ever, the subject of sale or transfer, like bills, notes, checks, etc., hence it was not thought necessary to protect society from the sale of fictitious contracts which impose a merely contingent obligation to pay money or property. We are clearly of opinion that the indictment under- which: the defendant was convicted is fatally defective, and that; the court therefore erred in overruling defendant’s motion to> quash it. For the reasons stated, the judgment of the court below is reversed, and the cause remanded, with directions to quash the indictment and discharge the defendant. Judgment reversed»