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People v. Palmer

OCTOBER 28, 1971.




APPEAL from the Circuit Court of Rock Island County; the Hon. DAN H. McNEAL, Judge, presiding.


Defendant-Appellant, James Palmer, was indicted for the offense of forgery. After accepting defendant's plea of guilty the trial court held a hearing on defendant's application for probation, denied same and sentenced the defendant to a term of from one to seven years in the penitentiary. The only assignment of error on this appeal is defendant's argument that the sentence imposed was excessive and that the trial court erred in denying his application for probation.

The facts which make up this record represent the evidence presented at the hearing on defendant's application for probation.

The defendant was married before he graduated from high school. After graduation the defendant worked as a laborer for four years. He was then twenty-one years old and he and his wife had two children.

In the eighteen months between August 1953 and February 1955, the defendant was divorced, was convicted of forgery for which he served six months in jail and a three month parole, and was convicted again of uttering fictitious checks. For the latter conviction he served three years in the penitentiary and two years on parole.

Between 1958 and 1962 the defendant worked as a bakery route salesman and supervisor. Then the defendant moved to Kearney, Nebraska, where in November, 1962, C.L. Dungan, the branch manager of Businessmen's Insurance Company, hired the defendant as an insurance salesman. In two years the defendant had worked his way up to the position of manager and had three men working for him. At this point Dungan suffered a heart attack and was forced to retire from the insurance business for about two years.

During Dungan's retirement the defendant continued working for Businessmen's Insurance. In 1966, defendant married Ora Mason. Ora Mason had four children. Three of them were living with her when she married the defendant. Defendant's wife, his step-daughter and a neighbor all testified in defendant's behalf indicating that he was a good husband and step-father. According to his wife, defendant had some drinking problems at the time of their marriage but he had gotten over them shortly after their marriage.

At about the time of defendant's marriage in 1966, Dungan had recovered his health and opened another office in Peru, Illinois. Dungan offered the defendant a territory centering around the Quad Cities. Since Ora Mason welcomed a fresh start for herself and her children, the defendant accepted the offer and moved his family to Hampton, Illinois.

This cause arose in late 1967, about ten months after defendant and his family moved to Hampton, Illinois. The defendant had just contracted to purchase a house and a new car when his wife, who had been working, became ill and had to undergo emergency surgery.

At that point the defendant received a premium refund check for one of his customers, Mrs. Iva Dillingham. She told the defendant to apply the proceeds of the check ($114.35) to another policy on which premium payments would not be due for two years. Instead, the defendant endorsed her name and his own on the back of the check, cashed the check, and applied the proceeds to his own household expenses. The defendant intended to make good the check before the premium payment became due, but was not able to do so.

The defendant cashed this check at a bank where Mrs. Dillingham and he had checking accounts. Mrs. Dillingham did not find out about the defendant's failure to apply the refund to her premium until late 1969. At her request, the insurance company sent her a copy of the cancelled check showing that defendant had endorsed and cashed the check at the Bank of Silvis in October, 1967.

Meanwhile, during the early part of 1969, the defendant had overdrawn his checking account at the Bank of Silvis. The bank permitted the defendant to add the amount of the overdraft to a personal loan on which he was then paying the bank. In June of 1969, the defendant filed a Wage Earner plan in bankruptcy. The loan from the Bank of Silvis was one of the debts scheduled in that action.

Mrs. Dillingham took the photostat of the refund check and showed it to the President of the Bank of Silvis. The President testified, "* * * I refunded Mrs. Dillingham her money, to give me the check, we would see if we couldn't collect it."

The bank charged the check off to its "bad checks account" and took the check to the Sheriff of Rock Island County. When the defendant was advised that the bank had filed a criminal complaint, he and his ...

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