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between him and the bank seems to us utterly untenable. It is true, there is no privity before the presentment of the check; but by that very act they are brought in privity and the check-holder's right to sue the bank completed.”
Knill had a right to draw his check in the reasonable expectation that he would have funds, at the time of presentment, adequate to meet it, and he did have sufficient funds to his credit at the time of presentment. By giving the check be assumed the obligation that the funds should be there. Of course, he might have withdrawn his deposit before presentment, or have declined to make a further deposit to meet the check, and have thus committed a fraud upon appellant; but if he had done so it would have been his fraud, and not that of appellee, and appellee would have been in nowise responsible for it. It does not aid appellee that Knill might have committed a fraud in that way, so that appellant is no worse off than it would have been if he alone had committed the fraud. Its duty was to stand indifferent, and perform its obligation. When it accepted his account it did so with an agreement with the whole world that whoever should become the owner of his check should, upon presentation thereof, become the owner and entitled to receive the amount specified in the check,-not as a matter of favor but as a matter of right,--provided Knill at the time had the amount on deposit. This agreement was for the benefit of such checkholder, and we think no special contract could be made to abrogate it, without the consent of the check-holder. Appellant, in taking the check, bad a right to rely upon the contract implied by the law, and was entitled to enforce it.
The judgments of the Appellate Court and circuit court are reversed and the cause is remanded to the circuit court.
Reversed and remanded.
WILLIAM W. CLARK
JACOB J. KERN, State's Attorney.
Opinion filed February 14, 1898.
APPEALS AND ERRORS—when appeal does not involve a constitutional question. An appeal calling for the construction of statutes enacted to give effect to a constitutional provision does not involve a constitutional question, where the validity of the statutes is admitted, and no claim is made that the adoption of any particular construction of the constitutional provision will affect the decision of the questions raised.
APPEAL from the Superior Court of Cook county; the Hon. JAMES GOGGIN, Judge, presiding.
BRECKENRIDGE & RASMUSSEN, for appellant.
E. S. BOTTUM, for appellee.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:
William W. Clark, appellant, brought this qui tam action in debt for the use of himself and the county superintendent of schools of Cook county, against Jacob J. Kern, State's attorney of said county, appellee, under section 5, article 14, of the School law, alleging that appellee had collected fines, penalties and forfeitures to the amount of $39,808.47, and refused to pay the same over to the county superintendent of schools after demand, and seeking to recover double the amount of the fines, penal ties and forfeitures so collected and retained. The court sustained a general demurrer to the declaration, and appellant electing to stand by his declaration, judgment for costs was entered against him and he appealed directly to this court. Appellee has entered his motion to dismiss the appeal for want of jurisdiction.
The only ground alleged as a basis for the jurisdiction of this court and the direct appeal from the Superior Court is, that the suit involves a construction of section 25, article 6, of the constitution, which is as follows: "The judges of the Superior and circuit courts, and the State's attorney, in said county, shall receive the same salaries, payable out of the State treasury, as is or may be paid from said treasury to the circuit judges and State's attorneys of the State, and such further compensation, to be paid by the county of Cook, as is or may be provided by law. Such compensation shall not be changed during their continuance in office.”
Under the authority of this provision the legislature has enacted statutes relating to the compensation of State's attorneys of the State and of Cook county, and under those statutes the questions involved in this case have arisen. It is not claimed that those statutes conflict in any manner with this provision of the constitution, but their validity is admitted, and the contention of appellant is, that a proper construction of them authorizes the payment to the State's attorney of Cook county of an amount, either by way of fees or salary, sufficient to make his compensation $7000 per annum, and requires him to pay over to the county superintendent of schools the fines, penalties and forfeitures in excess of that sum. It is also contended that in such construction of the statutes one of them is a re-enactment of a law which, with some modifications, has been in force since 1845, and is to be regarded as of the date of its first enactment. There is no suggestion that any particular construction of the constitutional provision can affect the questions so proposed to be considered, one way or the other. It is plain that the assertion that the constitution is in some way in question in the case has no foundation. The case involves nothing but the construction of statutes the validity of which is not questioned, and the construction of the constitution is in no way involved.
The motion to dismiss the appeal is sustained and the appeal is dismissed.
Opinion filed February 14, 1898.
1. CRIMINAL LAW-robbery, and larceny from the person, distinguished. The gist of robbery, as distinguished from larceny from the person, consists in the force or intimidation used in taking from the person assaulted, against his will, an article of value.
2. SAME-degree of force necessary to constitute the crime of robbery. The degree of force necessary to constitute robbery must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied, or by putting him in such fear as to overpower his will.
3. SAME—what cridence not sufficient to sustain conviction for robbery. Evidence that the accused unbuttoned the vest of the prosecuting witness and took his pocket-book from the inside pocket, and that the prosecuting witness was drunk and did not realize what the accused was doing, and that he made no resistance, is not sufficient to sustain a conviction for robbery.
4. SAME-doubts should be resolreil in favor of accused. Where, under the facts, it is doubtful whether the accused is guilty of robbery, or larceny from the person, it is the duty of the court and the jury to resolve that doubt in favor of the lesser offense.
WRIT OF ERROR to the Circuit Court of Knox county; the Hon. G. W. THOMPSON, Judge, presiding.
C. C. CRAIG, C. D. HENDRYX, and ARMOR MORELAND, for plaintiff in error.
E.C. AKIN, Attorney General, and EUGENE W. WELCH, State's Attorney, (D. C. HAGLE, and C. A. Hill, of coun. sel,) for the People.
Mr. JUSTICE CARTER delivered the opinion of the court:
The plaintiff in error, Hall, was convicted in the court below of the crime of robbery. Hubbell, the prosecuting witness, was the only witness to the alleged forcible taking of the pocket-book and money from his person.
The evidence tended to show that on May 4, 1897, Hubbell went to Galesburg to attend a meeting of the Grand Army, and during the day patronized a number of saloons and became intoxicated. Hubbell did not know where he first met Hall, but the evidence tended to prove that it was after night-fall. Hubbell was in a saloon and inquired of one Stewart if he knew any one there from Galva, and Stewart then called up Hall, who had just come in, because, as he said, he knew he was from Galva. Hubbell treated to beer. The parties left the saloon, and Hubbell and Hall, after walking the streets for a while, Hubbell being in a drunken condition and holding on to Hall, met a negro woman, and the three went into the yard of a school building. Hubbell testified that the last thing he remembered was that he was sitting on the ground against the building and that Hall tore open his vest, which was buttoned, and took out his pocket-book, which was in his inside vest pocket, and which had some money in it,- he did not know how much,--and a railroad ticket; that he, Hubbell, made no resistance; that he did not say very much about it,--did not realize what Hall was doing at the time; that he did not remember whether a woman was with him in the school yard or not; that he did not remember the places he had visited, but remembered coming to Galesburg and visiting the saloons and being with Hall in the evening. Creen, a deputy sheriff, testified that he saw Hubbell and Hall together between 9 and 9:30 o'clock in the evening, on the street; that he saw them stop and talk and meet a negro woman and a negro man, and heard Hall ask Hubbell how much money he had; that he did not hear Hubbell's reply, but heard Hall say, “You're all right, old man; come along;" that the negro man soon left them, and Hubbell, Hall and the woman went to the school yard; that witness went to the jail, and when he returned Hubbell was sitting down, with his back to the building, and Hall and the woman were coming away; that they passed witness at the corner of