It is important that the guilty be punished but it is far more important that barriers erected by the law and designed for the protection of the innocent should not be broken down by this court even for the purpose of affirming the conviction of a person who appears to be guilty. While the conduct of Goldman does not comport with innocence, this court should not, upon the consideration of incompetent evidence, conclude that he is guilty and then hold that the errors committed by admitting the incompetent evidence do not justify a reversal. This is a court of review and not a court of first instance. The question for us to determine is not whether Goldman is guilty of wrongdoing but whether he has been tried according to law. The constitution guarantees that a man accused of crime shall be entitled to a trial by a jury, and this means a trial on competent and relevant evidence. The law does not provide one method for trying innocent persons and another for trying guilty persons. (People v. Garines, 314 Ill. 413; People v.Newman, 261 id. II.) The question before us is not what we may think of the guilt of Goldman, but what would the jury have done if the case had been submitted to it without the admission of the immaterial and *Page 93 incompetent evidence. The rule that a judgment will not be reversed where the evidence establishes the defendant's guilt does not justify a total disregard of the rights of the accused. If in every case where a crime has been committed and where the evidence strongly indicates the guilt of the accused we disregard the salutary rules adopted to prevent the conviction of innocent persons in order to affirm the conviction, our decisions will depend not upon the question whether prejudicial error has intervened and whether the prisoner has enjoyed the fair and impartial trial guaranteed by the law, but upon our own conclusions with reference to the sufficiency of the evidence to show guilt.
By the first count of the indictment as it stood after the election of the State's attorney at the conclusion of the evidence, plaintiff in error was charged with converting to his own use, with intent to steal the same, a $50 Victory bond received by him as bailee from the partnership named. Inasmuch as there is no evidence in the record showing that plaintiff in error received from the partnership in any capacity a $50 Victory bond, it is clear that the verdict cannot rest upon this count. The only evidence concerning a $50 Victory bond is, that about a month before the dissolution of the partnership one of the partners received such a bond from one of its clients in payment of an account, and that the same bond, nearly three years later, was pledged by Goldman, together with other bonds, to secure a loan from a Chicago bank. No person testifies when or how or under what circumstances this bond came into Goldman's hands. Furthermore, the amount named in the verdict indicates that the finding of guilty was returned under the charge contained in the second count of the indictment.
The second count of the indictment charges that there came into the possession of Goldman, as receiver, $9521 in cash, one $500 bond, one $100 bond and one $50 bond, of the property of W.C. Kirby, W.H. Cullen, Jacob Auer and Charles A. Honecker, co-partners; that he failed to *Page 94 comply with an order of the circuit court entered May 14, 1923, directing him to account for said funds and turn the same over to the Chicago Title and Trust Company, appointed in his stead as receiver of the partnership estate, by reason of which he is guilty of stealing the funds of said co-partners, Kirby, Cullen, Auer and Honecker.
To support the second count of the indictment the State produced the following evidence: A statement of the account of the estate of Kirby, Cullen, Auer Honecker showing receipts amounting to $23,904.44 and disbursements amounting to $28,850.43, furnished by the employees in Goldman's office to the attorney for W.C. Kirby; a statement by an auditor who audited the accounts in the 298 estates of which Goldman was receiver, showing the amount in each estate for which Goldman was accountable, showing the amount due in the Kirby, Cullen, Auer Honecker estate to be $4441.56, and showing the total amount for which Goldman was accountable in all of the 298 estates to be $205,372.30; proof of admissions made by Goldman in a citation proceeding before the circuit court regarding his acts and doings as receiver in all these estates, to the effect that he had on deposit in the banks of Chicago approximately $40,000; proof of an admission by Goldman in the citation proceeding that he had pledged one of the $500 Hamilton Club bonds with a law firm in Chicago as security for a loan of $500; proof that he had purposely employed an incompetent book-keeper, and that he had instructed her to alter certain accounts in the books so that the books would not show certain disbursements made by him in estates other than the Kirby, Cullen, Auer Honecker estate; a loose-leaf ledger which purported to show Goldman's active receivership accounts; proof that Goldman had employed certain of the county employees in the court house to use their influence to secure his appointment as receiver; proof that Goldman had borrowed various sums of money with which to make bank deposits when called *Page 95 upon by the circuit court to make a showing with respect to his acts and doings as receiver in the several estates; proof of an admission by Goldman in the citation proceedings that he was in financial difficulty; and proof of an admission made at his office that he needed $100,000 to square his receivership accounts.
It was shown on cross-examination that the statement furnished to Kirby's attorney was incorrect. It showed disbursement to Jacob Auer of $12,263.39, whereas the amount paid to Auer was $1226.39. It failed to show a disbursement to Kirby's attorney of $1000. There is no proof in the record that Goldman personally examined this report after it was made up or that he had any knowledge of its contents. The statement was received in evidence but was not read to the jury. Notwithstanding this, it was taken by the jury when they retired to consider their verdict.
The auditor's statement was based upon an audit made by him of books and papers scattered about the city of Chicago by persons acting under orders issued by the judge of the circuit court to whom had been assigned the cases pending in which Goldman had been appointed receiver. The court entered an order removing Goldman as receiver and appointing in his stead the Chicago Title and Trust Company and directing Goldman to deliver to his successor all property of every kind and description that he held as receiver, and all books, records and papers of every kind and character in his possession and control as such receiver, and that he within ten days file with the clerk of the court a full and complete account, under oath, of his acts and doings and receipts and disbursements while acting as receiver, together with all vouchers showing disbursements. According to the proof in this record, which is undisputed, the court summoned Goldman's secretary before it, examined her at length, and told her at the conclusion that she was to take charge of all of Goldman's books and documents, that she was no longer in Goldman's employ but was *Page 96 an employee of the court, that she was to forbid Goldman access to any of his papers or books, that she should change the lock of Goldman's office, have duplicate keys made for the new lock, and that she was to keep one key and deliver the other to him. She brought to the court from Goldman's office some check stubs, a journal and a ledger. The day following the entry of the order removing Goldman as receiver his offices were raided and four men removed from his office all records, documents, papers and books pertaining to all of the estates of which Goldman had been appointed receiver by the circuit court. These men spent several days selecting the property they wanted. There were two van-loads of documents and papers removed from Goldman's office to the Chicago Title and Trust Company building. During a part of the time that Goldman's offices were being ransacked he was in jail. Why, when or by whom he was put in jail does not appear from the record. When the auditor examined the books from which he made his report he found some of them in the trial judge's chambers, some in the jury room connected therewith, some in the office of the secretary to the chief justice of the circuit court, and the greater portion of them at the offices of the Chicago Title and Trust Company. At the last mentioned place he found a loose-leaf ledger. This had been taken apart and its leaves were floating around the offices of the trust company and were being used by at least four different employees. The auditor carried some of these papers from one building to another and took some of them to his own office. None of the papers and books were identified as Goldman's. No witness testified that the books used by the auditor were the books taken from Goldman's office or that they were in the same condition as those taken from Goldman's office. There is no proof that Goldman knew the contents of any of these books, or that they were made in the regular course of his business as receiver, or that any of them were books of original entry. *Page 97 Goldman's book-keeper testified that when the raid was made she was at least a month behind in the posting of his books, but that she had memoranda in the office from which she expected to make her entries; that the first entry made by her in the Kirby, Cullen, Auer Honecker account was June 20, 1921, and that she knew nothing about who made the entries prior to that time and did not know whether they were true; that at the time she began to work for Goldman his books were not up to date and that she posted them from the check book stubs; that as far as she knew, all receipts in the Kirby, Cullen, Auer Honecker estate were shown on the books at the time of the raid but that there were a number of disbursements which did not appear on the books. The auditor testified that he gave Goldman credit for checks showing disbursements only when the estate in which the disbursement was made was noted on the check, but if the check was not so identified no credit was given; that there were many unidentified checks found among the papers being audited by him but that he did not total them; that the books showed that the disbursements in some of the estates exceeded by a large amount the receipts in those estates but that he did not give Goldman any credit for discrepancies in his favor; that Goldman turned over to the Chicago Title and Trust Company, in compliance with the order of the circuit court, $75,000, but that he did not give Goldman credit for this amount because it was not identified with any particular estate; that he found Goldman liable to account in the Kirby, Cullen, Auer Honecker estate for $4441.56; that he did not give Goldman credit in this estate for a check to Kirby's attorney for $1000, which it is admitted was paid to the attorney at Kirby's direction, because he did not find a canceled check showing payment. It was also shown that Goldman had paid to Honecker and to Auer each $500 more than the amount with which he was credited in the audit. The auditor testified that the ledger *Page 98 was not complete when he examined it and that he did not find a disbursement sheet in all the cases he attempted to audit. The proof shows the leaves of this ledger floated around the offices of the trust company for a month and there is no proof that all of them were ever docked.
There are so many reasons apparent why the statement of the auditor was not admissible in this case that it seems unnecessary to state any of them. The proof in this record shows clearly and without contradiction that the balance shown by the audit to be due in the Kirby, Cullen, Auer Honecker estate is not correct. Under no rule of the law of evidence with which I am familiar is it possible to justify the admission of evidence of embezzlements in the other estates. It is elementary that evidence of an embezzlement wholly disconnected with the one charged is not admissible, for the reason that it does not tend to establish the fact in controversy. (People v. Ensor, 310 Ill. 483; People v.Spaulding, 309 id. 292; Kribs v. People, 82 id. 425.) Nor can this unreliable mass of figures be held admissible on the theory advanced by the trial court and approved by the opinion of the majority of this court. Goldman was being tried for failing to pay over to his successor the balance remaining due the partnership estate. If the proof established the charge it was immaterial that he had the money to square the account. It would not have been competent for him to show that he had money on hand to meet the defalcation, and under no theory could the prosecution, as a part of its case in chief, show that he did not have on hand the embezzled funds. Furthermore, all of this evidence was inadmissible under the ruling of this court inPeople v. Castree, 311 Ill. 392. Substantially all of the evidence used by the prosecution was obtained in direct violation of sections 6 and 10 of our bill of rights and of the fourth and fifth amendments to the Federal constitution.
It was error to permit the State to prove that Goldman had his book-keeper change the accounts in estates other *Page 99 than the one out of which the charge on trial arose, and that he had an arrangement with employees in the county building by which he secured appointments as receiver. Neither of these facts tended in any way to prove that he had embezzled funds from the Kirby, Cullen, Auer Honecker estate.
It was error to permit the jury to take with them on their retirement papers which had not been read in evidence. (People v. Clark, 301 Ill. 428.) The constitutional provision that the accused shall have the right to meet the witnesses face to face means that all evidence in a criminal case must be produced in the presence of the accused. To permit the jury to take papers from the bar of the court and to read them for the first time while they are considering their verdict is to permit them to receive evidence after the cause has been submitted to them for decision and amounts to a denial to the accused of the right to appear and defend against such evidence and to be represented by counsel. It is very important for the accused and his counsel to be able to see exactly what impression is being made upon the jury by any portion of the evidence given on his trial, for the reason that it might be within his power to then introduce other evidence which might tend to disabuse the jury of a wrong impression, or the counsel by fair and legitimate argument might be able to convince the jury of the right view to be taken of such evidence.
I do not consider a receiver amenable to the provisions of section 81 1/2 of the Criminal Code, under which this prosecution is brought. While the act mentions administrators, executors, guardians, conservators and trustees, who exercise official functions somewhat similar to those exercised by receivers, yet receivers are not mentioned in the act. I find no place in the statutes of this State where the legislature has used any of these terms in referring to a receiver, and it is an unusual and strained construction of statutory language to hold that this act includes receivers. *Page 100 Statutes creating and defining crimes are not to be extended by intendment because the court thinks the legislature should have made them more comprehensive. (United States v. Weitzel,246 U.S. 533, 38 Sup. Ct. 381; State v. Hubbard, 58 Kan. 797,51 P. 290.) If the legislature intended to include receivers it would have said so, and would not have used the phrase "or other person acting in any fiduciary capacity" to describe a receiver. Unless there is something in the statute or its context which shows that the rule should not be applied, the well-recognized doctrine of ejusdem generis requires that the court, in the construction of statutes, hold general words following an enumeration of particular cases to apply only to cases of the same kind as those expressly mentioned. (People v.Melville, 265 Ill. 176; City of Clinton v. Wilson, 257 id. 580;Shirk v. People 121 id. 61.) Because the possession of property by a receiver is the possession of the court, (Richards v.People, 81 Ill. 551,) and because the relation of the receiver to the parties to whom he may in the end be liable to account is entirely different from that between an executor and the legatees under a will or a guardian and his ward, I think there is nothing in the context to warrant the conclusion that the legislature intended to include a receiver by following the specific words with these general words.