Zschocke v. People

Citations

• 62 Ill. 127

Syllabus

<p>Babceny—constable converting proceeds of sale. A constable, having an execution placed in his hands, levied upon and took possession of certain goods belonging to the judgment debtor and put them in possession of the judgment creditor. A short time afterward the constable took the goods away, with the consent of the judgment creditor, and sold them at private sale, receiving therefor the sum of $55, which he converted to his own use. In a prosecution against the constable, under an indictment charging him with having stolen divers United States notes and current bank bills for the payment of $55, and of that value, of divers issues and denominations, to the grand jury unknown, the personal goods and property of Matthias Eck, who was the judgment creditor, it was held the prosecution could not be maintained—not under Section VI of the Criminal Code, declaring the felonious conversion of money, goods, etc., by a bailee to be larceny, because in no sense could the constable be regarded as the bailee of the judgment creditor; the general property in the goods after the levy, until a sale according to law, being in the judgment debtor, and the money derived from a sale is not the property of the plaintiff in the execution until paid over to him, but until that time is in the custody of the law. Besides, the goods were not sold according to law, but at private sale—the officer, by such abuse of his authority, becoming a trespasser ab initio, and the judgment creditor could not, by ratifying such trespass, obtain a legal right to the fruits of the wrongful act of the officer.</p>