delivered the opinion of the Court:
This was an indictment in the Circuit Court of Horgan county, preferred by the grand jury against John Collins and John Smith and two other persons to the jurors unknown, and indorsed “ Indictment for robbery, a true bill.” There were three counts in the indictment, and a motion made by the prisoners’ counsel to quash each count and to quash the indictment.
This motion was overruled, and, a plea of not guilty having been entered, Collins and Smith were tried by a jury, who rendered the following verdict: “We find the défendants guilty in manner and form as charged in the indictment, and fix the period of their confinement in the penitentiary to five years.”
A motion for a new trial was overruled and exception taken. A motion was also made in arrest of judgment, which the court denied and rendered judgment on the verdict.
The cause is brought here by writ of error, and numerous errors are assigned, the most important of which will be noticed, and first, as to the motion to quash each count of the indictment.
As an indictment for robbery each count was defective, neither of them containing the essential element of an indictment for that offense as defined by our Criminal Code. Bobbery is there defined as the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or ‘mtimidation. Scates’ Comp. 383.
Bo force or intimidation is charged in either count, con-, sequently the indictment was defective as an indictment for robbery. The question then arises, if defective as an indictment for robbery, could the prisoners be required to answer it as an indictment for a kindred offense, that of larceny.
The first two counts contain, each of them, all the averments necessary to constitute a good indictment for larceny, and as such the prisoners could be compelled to plead to it. It is for the court to decide what offense, if any, is alleged in an indictment pending before it, the merits of which are properly brought to its consideration by motion to quash or by demurrer. If the State’s attorney or the foreman of the grand jury, by mistake, indorses a bill as being for one description of offense, while in the body of the bill a different offense is described in legal phrase, the court would be bound to sustain the matter of the bill regardless of the indorsement on it. If not so, many a-rogue would go “unwhipt of justice.” The first and second counts are good counts in an indictment for larceny. The third count is defective, in not alleging the property therein described to be of any value.
As to the merits, the proof of a larceny from the person of the prosecutor by the prisoners with others unknown, was circumstantial in a great degree, but of a character so strong as to warrant the jury in finding them guilty. The stealing was effected by one of the many modes adepts in “ the confidence game ” are so ready to invent and put in practice. Their ingenuity is wonderful, and their sagacity in selecting their victims, not less so, and such is the prevalence of the crime, juries will not require the strongest kind of testimony on which to hang a verdict of guilty, and yet they will be satisfied, beyond a reasonable doubt, by such evidence as is submitted, of the guilt of a party charged with larceny committed as this seems to have been.
It is true, the treasury notes stolen from the prosecutor were not actually found in the possession of the prisoners, but enough was shown to satisfy any reasonable jury that they had, in their flight, dropped them where they were found. All the ^circumstances conspire to fix the guilt upon them, and the jury were justified in finding as they did.
The objection that these notes were not goods and chattels, is not well taken. If they were money in the legal and constitutional use and acceptation of that term, they were also personal property, and as such they were goods and chattels. Chicago & Aurora Railroad Co. v. Thompson, 19 Ill. 578. The statute declares that larceny may be committed by feloniously taking and carrying away any bond, bill, note, etc., of value to the owner. These notes were proved to be of the value stated in the first and second counts of the indictment.
Exceptions were also taken to the instructions given for the people, numbered one, two and three.
The first instruction is as follows: “ Eobbery is the felonious and violent taking of the money, goods or chattels or other valuable thing from the person of another, by force or intimidation.”
This, being in the precise language of the statute, is certainly unobjectionable as a proposition of law, but had no application to the case on trial, that being for larceny.
The second instruction is this: “ If the jury find, from the evidence in the case, beyond a reasonable doubt, that defendants did, on or about, etc., at the county, etc., feloniously and violently steal, take and carry away from the person of Eobert Brookshire, any one of the notes described in the first or second counts of the indictment by force or intimidation, and if they further find from the evidence, beyond a reasonable doubt, that said note or notes was the personal goods of the said Eobert Brookshire, then the jury should find the defendants guilty.”
This instruction is clearly objectionable as the element of the value of the goods is omitted. The indictment being for larceny, proof of value was indispensable.
The third instruction is this: “ If the jury believe, from the evidence in the case, beyond a reasonable doubt, that the defendants, and two other persons unknown to the jury, did feloniously and violently steal, take and carry away from the person of Robert Brookshire, at the county, etc., one hundred dollars in lawful money of the United States, or any part of, said one hundred dollars, and that said lawful money was the personal property of the said Brookshire, then they should find the defendants guilty in manner and form as charged in the third count of the indictment.”
Holding, as the court did, the third count to be good, then the instruction was proper, for as that does not allege the property stolen to be of any value, it was not necessary to direct the attention of the jury to the value. But the count being in our judgment not a good count in larceny, the instruction was improper.
It is further objected that the court refused on the application of the prisoner, to give the twelfth, the thirteenth and fourteenth instructions.
The twelfth is as follows : “ Although the people are not bound to prove the treasury notes, or any one of them, in the indictment mentioned and described, are of the particular value or values ascribed to them in the indictment, yet the people are bound to prove, by evidence presented to the jury, that said treasury notes or some or one of them described or mentioned in the indictment had some value, and if the people have not furnished such evidence of any such value to the jury, then the jury cannot infer such value, and must acquit the defendants.”
That this instruction was properly refused, will be apparent from a few considerations. The property alleged to have been stolen was United States treasury notes, declared to be legal tender in the payment of debts, and equivalent to coined money. Their value is fixed by law, and, therefore, the mere production of them in evidence, if genuine, authorized the jury to infer their value. If they had not a fixed value then such proof would have been necessary.
The thirteenth instruction asks the court to inform the jury they must be satisfied of the genuineness of the notes before they can find a verdict of guilty.
This, we think, the court should have told the jury. If they were forged and counterfeited, and had no intrinsic or artificial value, they would not be the subject of larceny. 1 Starkie on Ev. 829, note. Slight evidence on this point would suffice.
The fourteenth instruction was properly refused, as United States treasury notes in the possession of a person may safely be alleged to be that person’s goods and chattels.
As another ground for a new trial, the verdict of the jury was alleged to be defective in not finding the value of the property stolen. This is a substantial objection, and should have prevailed, and it was also good ground for arresting the judgment. Highland v. The People, 1 Scam. 392; Sawyer v. The People, 3 Gilm. 53.
For refusing to quash the third count of the indictment, and giving the plaintiff’s instructions, and refusing the twelfth and thirteenth instructions asked by the prisoners, and in refusing to set aside the verdict and grant a new trial, and refusing to arrest the judgment on account of the defective verdict, the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Judgment reversed.