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the school house, and he soon after arrested them. Hubbell's pocket-book was found on Hall, and it contained $1.57 and a railroad ticket worth twenty-nine cents. Hall did not claim that the pocket-book belonged to him, but that Hubbell bad given it to him to keep while he was with the woman; but the jury evidently found from the evidence that he took it with the felonious intent of appropriating it to his own use, and the only question we think it necessary to consider is, whether, even conceding that the evidence shows that the taking was felonious, it is sufficient to sustain the conviction for robbery.

Section 246 of the Criminal Code defines robbery as follows: "Robbery is the felonious and violent taking of money, goods or other valuable thing from the person of another by force or intimidation.” The statute also provides that “private stealing from the person of another

shall be deemed larceny.” (Crim. Code, sec. 167.) On a charge of robbery, if it appears that one makes an assault on another, and against the will of the one assaulted takes froin his person his money, goods or other valuable thing by force or intimidation, the offense is shown. As distinguished from larceny from the person, the gist of the offense is the force or intimidation, and the taking from the person, against his will, a thing of value belonging to the person assaulted. (Burke v. People, 148 Ill. 70.) The only difference between private stealing from the person of another, and robbery, lies in the force or intimidation used. In regard to the force or violence with which the goods were taken, the principle is this: that the power of the owner to retain the possession of his goods was overcome by the robber, either by actual violence physically applied, or by putting him in such fear as to overpower his will, as, if a thing be feloniously taken from the person of another with such vio. lence as to occasion a substantial corporal injury, or if it be obtained by a violent struggle with the possessor; but where it appeared that the article was taken without

any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand of the wearer,-rather by sleight of hand and adroitness than by open violence, and without any struggle on his part,-it is merely larceny from the person. (3 Greenleaf on Evidence, sec. 229.) It may be different if the article is so attached to the person or clothing as to create resistance, and violence is used to overcome it. (Moore on Crim. Law, p. 439, sec. 419; 1 Russell on Crimes, 874, et seq.; 21 Am. & Eng. Ency. of Law, 418; 2 Bishop on New Crim. Law, secs. 1166, 1167.) When the force used is to prevent the resistance of or to overpower the person robbed, there such force makes the offense robbery. If one should rifle the pockets of a sleeping or an unconscious person, even to the unbuttoning of clothes and turning out of pockets, such offense would not be rob. bery. Brennon v. State, 25 Ind. 403.

Klein v. People, 113 Ill. 596, was different from the case at bar. In that case, Klein, with the evident intent of robbery, secured a lady's hand-bag by grabbing it and jerking it from her arm, where it was hanging, breaking the fastening and bruising her arm. In the case at bar there was no such force used, in kind or degree. Nor is it claimed there was any intimidation of Hubbell or putting him in fear; and upon the question of the alleged violent and forcible taking the evidence really amounts to no more than this: that Hall unbuttoned Hubbell's vest, possibly by pulling at it, and took the pocket-book from his inside vest pocket. Hubbell did not know what he was doing at the time, and made no resistance. We are disposed to agree with the views of counsel for plaintiff in error that the evidence showed no more force than the mere physical effort of taking the pocket-book from Hubbell's person and transferring it to Hall. If that is robbery, then no practical distinction between that crime and larceny from the person exists. The two crimes approach each other so closely that cases may arise where it may be doubtful upon which side of the line they should fall. Still, it is the duty of courts, as well as of juries, to resolve such doubts in favor of the accused.

We are of the opinion that the evidence was not sufficient to authorize a conviction for robbery. The judg. ment will be reversed and the cause remanded.

Reversed and remanded.

171 544 183 250 183 313

171 544 200 2145

THE CHICAGO AND ALTON RAILROAD COMPANY

V.

171

544 205 2584

THE PEOPLE ex rel. James W. Martin, County Collector.

Opinion filed February 14, 1898.

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1. TAXES-Pulid certificate of school tax lery is essential to the rulidity of the tax. A valid certificate of school tax levy by the school directors, or by the board of education in districts where such board has succeeded the directors, is essential to the validity of the tax. (People v. Smith, 149 Ill. 519, followed.)

2. SAME-certificate of school tax levy may be amended to show the fucts. A certificate of school tax levy signed by two persons as “directors" of the district may be amended, on application for judgment of sale for the delinquent tax, by changing the word “directors” to “board of education,” and by designating the parties signing, as “president" and "secretary,” respectively.

3. SAME-when amendment of certificate of lery will not vitalize school tax. Amending a certificate of school tax levy signed by two persons as "directors,” to read as signed by them as “president” and “secretary” of the board of education, does not operate to vitalize the tax, where there is nothing in the certificate or in the evidence to show that it was the certificate of the board of education, which consisted of six members and a president, or was authorized by it.

APPEAL from the County Court of Will county; the Hon. A. O. MARSHALL, Judge, presiding:

WILLIAM BROWN & MOONEY, for appellant.

WILLIAM D. HEISE, State's Attorney, for appellee.

Mr. JUSTICE WILKIN delivered the opinion of the court:

This is an appeal from a tax judgment, entered by the county court of Will county, for certain delinquent school taxes. The appellant filed objections to various items of the tax, but abides by the decision of the trial court on all except that relating to the tax levied for building purposes in districts 2 and 8, in Reed township.

One objection is, that the taxes were not levied by a board of directors or other authority having the legal power or right to do so. The statute (3 Starr & Curtis, p. 3706, par. 203,) provides that the directors shall ascertain, as near as practicable, how much money must be raised, and shall issue a certificate stating the amount, which certificate is to be first returned to the township treasurer and by him returned to the county clerk. A form of this certificate is given in the statute. The boards of education in districts in which they succeed the boards of directors have the same powers and are required to make the levy in the same manner.

(3 Starr & Curtis, p. 3692, par. 166, clause 1.)

At the trial a certificate of levy was introduced in evidence which was signed: “Alex. Kilpatrick, R. H. Hays, Directors District No. 2, Tp. 32, R. 9, Will Co., Ill.” The minute book or record of the board of education of that district was also introduced in evidence, and this showed an entry of proceedings had by the board on July 7, 1896, at a regular meeting, in the following words: “Motion carried that a levy be made of five per cent on the taxable property of district No. 2,—two per cent for educational purposes and three per cent for building and repairs.” Objection being made to the certificate when offered, the court permitted it to be amended by substituting for the word "directors" the words "board of education,” and by placing after the names aforesaid the designations, respectively, “President" and "Secretary,” making it read: "Alex. Kilpatrick, President, R. H. Hays, Secretary, Board of Education District No. 2," etc. As thus amended the certificate was permitted to go in, over the objection of the appellant.

District No. 2 was in charge of a board of education consisting of six members and a president, and so far as this amendment goes we think it was proper under section 191 of the Revenue act. But the difficulty is that this amendment did not cure the fatal defect, viz., that the certificate was not the certificate of the board, nor was it made to appear that it was authorized by the board. The certificate is jurisdictional. Without it the tax is void. (Ieber v. Ohio and Mississippi Railway Co. 108 Ill. 451.) The record of the board is very similar to the one in the case of People v. Smith, 149 Ill. 519, where this court said (p. 551): “It is to be observed, however, that there is in the proceedings of the board no order or direction that the certificate contemplated by said section of the statute be filed, or any attempt to authorize any person or persons to file the same.” The conclusion in that case was, that the levy there involved was void ab initio on that account, and that it could not be made valid by amendment. The later case of Spring Valley Coal Co. v. People, 157 Ill. 513, does not conflict with that decision, but is in harmony with it. The holding in the Smith case is conclusive here.

The same condition of affairs exists as to the levy in district No. 8. The certificate is signed in like man. ner and the record of the board is defective in the same particular.

It is unnecessary to discuss other questions raised in the record.

The appellant paid all other taxes except those levied for building purposes in the two districts above mentioned, and as these were illegally levied and no amendment could vitalize them it would be useless to remand the cause. The judgment is therefore reversed.

Judgment reversed.

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