delivered the opinion of the Court.
By a motion for a new trial, and by instructions given for the appellee, the question is presented whether there is in the case any competent evidence of the cause of action upon which the appellee recovered; for, if there be no such evidence,the motion for a new trial should have been granted, and the instructions given upon the assumption that there was such evidence should not have been given.
The suit was by the appellee in trover against the appellant for money taken—as was said—by the appellant from the appellee.
The testimony to prove the taking of the money was by the attorney of the appellee, and is as follows:
“ On the 24th day of February, 1894, the defendant took from the person of the plaintiff the four $100 bills, the thirteen $50 bills, and the thirteen $20 bills described in the de< laration; the $ 100 bills were then and are now worth $100 each; the $50 bills were then and are now worth $50 each; the $20 bills were then and are now worth $20 each. The taking by the defendant was against the will of the plaintiff; the property was his and was in his possession, and no part of it has been returned to him by Captain Stuart, the defendant, or any one for him.”
The first question and answer on cross-examination utterly destroyed the whole of that narrative as evidence. It might as well have been left unsaid. That question and answer were: “ Mr. B ildwin, were you present when these bills were taken from the person of this man Harris ? Ho, sir.” The- plaintiff—appellee—had rested his case, and had the appellant then asked the court to instruct the jury to find for the defendant, the instruction should have been granted; McGeoch v. Hooker, 11 Ill. App. 649; for the testimony in chief is subject to all the criticism which this court in Earle v. Earles, 60 Ill. App. 360, and the Supreme Court in Fryrear v. Lawrence, 5 Gilm. 325, made upon the verifications there referred to.
Then, did the cross-examination supply the total want of evidence in chief ? All that we find which can be treated as tending that way is this : “ Will you state when you were told by Captain Stuart that he took them from his person ? Tes, sir. And where ? In the United States court room in Chicago, in the old Government building, at various times; once, on the 15th day of March, 1894. I had a stenographer report it, and now have that report in my hands.”
The attorney declined to permit the attorney of the appellant to look at that report.
The descriptions of the bills in the declaration, and in the quoted testimony in chief, are alike.
Flow, leaving out of consideration the gross improbability that the appellant followed that description in any conversation with the attorney, it is quite certain that he did not say that the bills were those described in the declaration.
The original declaration was filed March 23d, eight days, and the amended May 17th, two months and two days, after the time of the conversation.
It is not proved—there is no evidence tending to prove— that the appellant took from the appellee the bills described, conversion of which is the gist of this action.
The appellant insists upon the want of proof, and it is impossible to sanction the attempt to present as personal knowledge what was at best only hearsay, however authentic the source whence it came.
The judgment is reversed and the cause remanded.
Mb. Justice Watebman.Upon the trial of this case below, it appeared that the plaintiff, by means of post office orders by him forged, had obtained from the United States a large sum of money; that he has been convicted of such crime, and at the time of the trial below was in the penitentiary. When arrested- he was charged by the post office inspector, the defendant, with his crime and having by means of it obtained $3,100, and was asked to make restitution for the money he had by such means obtained; to which he replied that he had no money and could not make restitution. It substantially appears that he then had concealed upon his person the money thereafter taken from him by the United States marshal and the defendant, to recover which this action was brought.
The jury had a right to take into consideration his declaration that he had no money, in determining whether the money then on his person, and afterward taken from him, was his.
When searched by the United States marshal and the defendant there was found in the waistband of his pantaloons, stitched tightly between the two buttons to which his suspenders were attached, between four and five hundred dollars in money, and there was found on his right foot, underneath, between the stocking and his bare foot, money attached to the sole of the foot, and in his sock there were two or three small rubber bands, which were broken. The money was taken from his foot with some difficulty ■ without tearing it, as it was sticking to the foot. The bills that were on his foot were stuck together, the upper bill was worn through on the ball of his foot, where the ball of the foot would rest, and also on the heel. The bill next to his foot was worn through. There was also an offensive odor on the bills from the smell of his feet. The plaintiff stated that the money had been where it was found for some time.
In Bishop on Criminal Procedure, Yol. 1, Sec. 210, the rule as to the conduct of an officer in making an arrest is laid down as follows:
“ The officer * * * may take from the prisoner any articles of property which it is presumable may furnish evidence against him; but money, for example, should not be taken unless-it be in some way connected with the charge or proof against him, as he is thereby deprived of the means of making his defense.”
Section 231: “ The arresting officer should consider the nature of the accusation;-then if he finds on the prisoner’s person, or otherwise in'his possession, goods or money which he reasonably believes to be connected with the supposed crime, as its fruits, or as the instrument with which it was committed, or as supplying evidence relating to the transaction, he may take them and hold them, to be disposed of as the court shall direct.”
Manifestly, the prisoner being charged with the forgery of post office orders, and with having obtained by means thereof a large sum of money, it was the duty of the United States marshal and his assistants to take from the prisoner such money as they reasonably believed to be connected with the crime of which the prisoner was supposed to be guilty.
Whether the prisoner, the plaintiff, was, at the time of the commencement of this action, entitled to have the money so taken from him restored to him, is another question.
The contention of the plaintiff substantially is, that if one, by robbery or other crime, obtain a sum of money and deposit it in bank, he may immediately thereafter withdraw in other money the sum deposited, and that thereby the other money which thus comes into his possession becomes his, so that as against the person from whom he obtained the money he deposited, he may, in an action of trover, recover the money which he drew from the bank.
I do not think that the law goes to the extent claimed by the plaintiff. It is clear that in a court of equity a person having obtained property by criminal means will be held to hold the fruits of such offense as a trustee for the use and benefit of him from whom the property feloniously taken was obtained.
G-olightly v. Reynolds, 1 Lofft’s Reports, 89, was an action of trover brought for six silver table-spoons, 2 silver salts, 2 silver salt-spoons, one bank note of 20?., number 203, dated November 19, 1771, and 10 guineas in gold, all of which were the produce of a bank note of 50?. stolen by one Ferguson; the property for which trover was brought was found on Ferguson when taken up, and produced in evidence at the Old Bailey by the plaintiff, the prosecutor, at the trial of said Ferguson, who was convicted of the theft of the said bank note of 501. Lord Mansfield in deciding the case, said: “ I don’t see why trover is not good.
The statute puts an indictment in the same case as a writ of appeal. The statute says it shall be restored, but leaves the party to his own way of recovery; since this statute, it gives him a particular remedy, but does not take away his other remedy.” And there was judgment for the plaintiff.
In 1 Chitty’s Criminal Law, 820, the rule as to stolen property is thus declared : “ If the thing stolen has been converted into money, the owner may have the produce instead of the special chattel, for the case, though not within the words, is clearly within the equity of the statute.” Reference is here had to the statute of 21 Henry VIIL, providing for restitution of stolen goods. In the Queen v. The Corporation of the City of London, 96 Eng. Common Law, 509, it appeared that certain parties had been convicted of carrying awajr 500 pounds in weight of gold, and that certain Turkish bonds of the nominal value of 2,300?. were found in the possession of the convicted parties when apprehended, and that it was proved to the satisfaction of the court that one-sixth part of such bonds were bought with the proceeds of said felony. It was therefore ordered that such sixth part of the bonds should be given to the parties from whom the gold was stolen.
In Rex v. Rooney et ah, 7 Carrington & Payne, 515-32, E. C. L. 735, where a person, a week after the commission of the offense, was apprehended on the charge of robbing A of 25?. in notes and 9?. in gold, and on the prisoner was found the sum of 12?. in gold, but none of it identified, the judge ordered 5?. to be restored to the prisoner in order to enable him to make his defense, saying that as a week had elapsed between the time of the robbery and the time of the apprehension of the prisoner, Rooney, the court might presume that a portion of the money in his possession was obtained from other sources.
So in Harris case, Hoy, 3 28, the prisoner stole cattle and sold them in open market at Coventry; being apprehended by the sheriffs, they seized the money, and to the owner of the cattle was given restitution of the money. Croke, Judge, said this was usual at Hewgate.
So, too, in Hanbury case, cited in Holiday v. Hix, Croke, Elizabeth, 661, where a servant took gold from his master and changed it into silver, it was held that the master should have restitution of the silver.
In Rex v. Powell, 7 Carrington & Payne, 640, 32 E. C. L. 638, the prisoner ivas convicted of selling a bill of exchange for 100?. and a considerable sum of money in specie, the property of Louis Davis; the prisoner had left a horse with a person at Eedburn, in Hertfordshire, intending that it should be exchanged for another. There was no doubt that the horse ivas purchased with the prosecutor’s money, as the prisoner had no money of his own; the horse was therefore ordered to be delivered to the prosecutor from Avhom the 100?. had been stolen.
In the present case it is, in my opinion, a question of fact to be left to the jury to determine whether the money found upon the person and taken from, him was the fruit of the crime for Avhich he was arrested and has been convicted; and in determining this fact, evidence of the prisoner’s, pecuniary circumstances prior to the commission of the crime, the money he had in bank, as well as deposits made by him after the commission of the crime, or other property obtained by him subsequent to the crime, may be introduced, that thereby may be ascertained whether the property noiv claimed by him is the fruit of the money he feloniously obtained from the United States government or otherwise, and if the money so taken from the prisoner is found to be the fruit of that which he criminally obtained from the United States, then he can not recover in this action. By fruit of crime is not necessarily meant the very property stolen.