Brown v. People , 218 Ill. 361 ( 1905 )

Mr. Justice Scott

delivered the opinion of the court:

The statute under which plaintiff in error was convicted, and which became effective July i, 1903, is section 81 1/2 of the Criminal Code, which reads as follows:

“Whoever, being the administrator of the estate of a decedent, or the executor of a last will, or guardian of any minor, conservator of any idiot, distracted person, drunkard, spendthrift or insane person, or trustee or other person acting in any fiduciary capacity, without good cause, fails or refuses, when legally required by the proper person or authority, to account for or pay over to such person or persons as may be lawfully entitled to receive the same, any money, choses in action, or other property which may have come into his hands, by virtue of his office, duty or trust, shall be deemed guilty of larceny.”

On January 4, 1904, demand was made upon him for the payment of money due from him, as administrator, to the widow of his intestate. He failed to comply with the demand for the reason that he did not have the money and could not get it.

It is apparent from the record in this cause that John G. Brown never had the power to pay this money at any time after this statute came into force, and it is insisted on his behalf that the statute, therefore, should not be construed so as to bring him within its terms. The real wrong which plaintiff in error did consisted in unlawfully loaning funds in his hands as administrator, to Hankins, one of the sureties on his administrator’s bond, on June 7, 1893, and he has been unable at all times since to pay the money which the jury found that he failed to turn over, for the reason that the loan to Hankins could not be fully collected, and for the further reason that plaintiff in error was insolvent and was unable to obtain the money from any source with which to make full payment to the distributees of the deceased. Certain payments were made on the note prior to January 1, 1898, by Hankins and were properly distributed by plaintiff in error to the heirs, but the moneys so paid and distributed- were aside from the sum which the jury found that the administrator had failed or refused to distribute.

We are of the opinion that the statute above set out can not be made to apply to this administrator under the facts disclosed by this record. It is true that he wrongfully loaned the money in 1893, and as a consequence thereof became unable to comply with the demand made under the law of 1903. The wrong he did was in lending the money to Han-kins ; but at the time he made the loan the law did not provide that he should be guilty of larceny if he failed to pay, upon demand, to the distributees, at the proper time, the money so wrongfully loaned. If, therefore, this statute be held to apply to him it would result in making his failure to pay over the money larceny, and subject him to punishment for that crime,—a failure which was the direct consequence of the wrongful act in question, which wrongful act was done long prior to the passage of the statute, the failure in question not being larceny by any law in force at the time the wrongful act was done. Such a construction, would make the statute obnoxious to section 14 of article 2 of the constitution of 1870, which forbids the passage of any ex post facto law. Johnson v. People, 173 Ill. 131.

The judgment of the criminal court of Cook county will be reversed but the cause will'not be remanded.

Judgment reversed.