People v. Brady , 272 Ill. 401 ( 1916 )

Mr. Chief Justice Farmer

delivered the opinion of the court:

The plaintiffs in error, Ulie A. Brady, Ernest Blanchard, George Meriwether and Charles Wilson, were indicted in the circuit court of Jasper county for the confidence game. The first count charged that the defendants obtained from Douglas Flake his money and property by means of the confidence game; the second count charged them with obtaining from Douglas Flake his property by means of the confidence game; and the third count charged them with obtaining, by means and by use of the confidence game, property of Douglas Flake. The court overruled a motion to quash the indictment and the defendants were tried. At the trial there was no evidence that the defendants obtained any money but there was testimony that' they obtained from Douglas Flake a stock of goods. The jury returned a verdict finding them guilty, and the court, after overruling a motion for a new trial and a motion in arrest of judgment, sentenced them to confinement in the State penitentiary at Chester.

The first point raised by plaintiffs in error (hereafter called defendants) is that the indictment is not good and that their motion to quash it should have been sustained because the indictment does not describe the property alleged to have been obtained. Sections 98 and 99 of the Criminal Code, under which the indictment was returned by the grand jury, are as follows:

“Sec. 98. Every person who shall obtain, or attempt to obtain, from any other person or persons, any money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten years.

“Sec. 99. In every indictment under the preceding section, it shall be deemed and held a sufficient description of the offense, to charge that the accused did, on, etc., unlawfully and feloniously obtain, or attempt to obtain, (as the case may be,) from A B (here insert the name of the person defrauded or attempted to be defrauded,) his money (of property, in case it be not money,) by means and by use of the confidence game.”

Those sections were adopted by the legislature in 1867 and their construction came before this court in 1868, in the case of Morton v. People, 47 Ill. 468. In that case the first count charged defendant with obtaining $30 in money, and the second with obtaining a United States legal tender treasury note for $10, one bank note for the payment of $10 and two bank notes for the payment of $5 each, by means of the confidence game. Neither count described or set out the acts by which the money was obtained, and it was urged the indictment was bad because it did not set out the elements constituting the crime, and that section 99 violated section 9 of article 13 of the constitution of 1848, which is substantially the same in our present constitution, and which gives the accused the right to demand the nature and cause of the accusation against him. The contentions of defendant as stated by the court were: “The accused cannot know from this indictment the exact charge against him and the outer lines within which the evidence must be confined, and cannot know what evidence he will be required to meet; nor could a conviction under this indictment be pleadable in bar of another indictment for the same offense; nor can the court see in it that a legally defined crime has been committed. They insist that the term ‘confidence game’ has no definition ‘in law or literature/ and that ‘no fifty men can be found who will define alike the confidence game.’ They further insist that the indictment should specify all the facts with such ceftainty that the offense may judicially appear to the court.” In discussing these questions the court quoted what was then section 277 of the Criminal Code and in substantially the same language as what is now paragraph 408 of the Criminal Code, (Hurd’s Stat. 1913, p. 876,) that every indictment shall be deemed sufficient which states the offense in the language of the statute creating it or so plainly that the nature of the offense may be easily understood by the jury, and the court held the indictment was for a statutory offense and was sufficient; that the offense was so set forth that the accused could be at no loss to know what he was charged with, so that he could prepare his defense, and that the conviction under the indictment could be pleaded in bar of another prosecution for the same offense. As to section 99 being in violation of the constitution the court said: “As to the constitutional objection, some of the cases referred to by the plaintiff in error may go to the extent claimed, but as we have a very scrupulous regard for the acts of a co-ordinate department of the government whose exclusive duty “it is to make laws, we cannot declare any enactment of that department null and void as being against the constitution unless we are fully convinced of the violation. We are not so convinced and therefore must uphold the law.” The construction placed upon paragraph 408 by the court in that case has been approved in many cases not involving the confidence game statute, but where said paragraph was involved, to sustain an indictment charging a statutory crime. Lyons v. People, 68 Ill. 271; McCutcheon v. People, 69 id. 601; Loehr v. People, 132 id. 504; West v. People, 137 id. 189; Honselman v. People, 168 id. 172; Cochran v. People, 175 id. 28; White v. People, 179 id. 356; People v. Covitz, 262 id. 514.

Upon the question of the sufficiency of an indictment in a confidence game case which did not set out the elements or acts constituting the crime, the Morton case has been followed and expressly approved in Maxwell v. People, 158 Ill. 248, Graham v. People, 181 id. 477, DuBois v. People, 200 id. 157, Hughes v. People, 223 id. 417, People v. Weil, 243 id. 208, and People v. Clark, 256 id. 14. In all but one of those cases the defendants were charged with obtaining money. In one of them the charge was for obtaining a check. In some of the indictments or counts in those cases the money was not described nor the amount stated, but whether it was necessary, in an indictment for obtaining money by means of the confidence game, to describe the money or state the amount of it does not appear to have been raised, or at least it was never directly passed upon until the decision in People v. Clark., supra. In that case the indictment charged the defendant with obtaining money by means of the confidence game but contained no description of the money and did not state the amount. The defendant in this court contended that if section 99 be held to authorize an indictment in the form therein prescribed it violated defendant’s constitutional right to demand the nature and cause of the accusation. The court followed and adhered to the Morton case and subsequent cases as to the sufficiency of an indictment for the confidence game which did not set out the acts employed by defendant, but said in those cases the question whether the legislature could declare an indictment sufficient which charged the obtaining of money, without words of description, by such criminal means as embezzlement, larceny and confidence game, was not involved. It was held the offense created by section 98 was complete by obtaining, by means of the confidence game, money, without regard to the amount or description.

The indictment here involved presents the question whether a charge in an indictment for obtaining property by means of the confidence game, without describing the property, is good. Section 98 creates and defines the crime of the confidence game, which, in substance, is the obtaining or attempting to obtain from another any money or property by means or by use of any false or bogus checks, “or by any other means, instrument or device, commonly called the confidence game.”' Section 6 of division 1.1, which is paragraph 408 of the Criminal Code in Hurd’s Statutes, provides that every indictment shall be sufficient which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of it may be understood by the jury. Section 99 provides that an indictment for the confidence game shall be sufficient which charges the obtaining or attempting to obtain from a person named, his money, or property in case it be not money, by means and by use of the confidence game. Section 98 does not define the acts that may constitute the confidence game, and section 99 declares that an indictment for that crime shall be sufficient which charges the offense in the language of the statute creating it. When the first judgment of conviction under the confidence game statute was before this court for review, it was urged that section 99 deprived the accused of his constitutional right to demand the nature and cause of the accusation and was therefore invalid, and that an indictment which failed to set out the elements or acts constituting the crime was not sufficient. As we have before stated, that contention was overruled, and the decision then made upon that question has been adhered to ever since.

We are unable to see why, if the legislature has power to declare an indictment good which simply charges the ac- ■ cused with obtaining money or property by means of the confidence game, without describing or setting out the acts, it may not also lawfully declare an indictment good which charges the obtaining of property without describing the property. It is difficult to understand why, if the former violates no constitutional right of the accused, the latter does, and we have held in an unbroken line of decisions, in declaring an indictment sufficient which does not set out or describe the acts of the accused, that section 99 is valid. In the Clark case we held that under the confidence game statute it is not necessary, where the charge is for obtaining money, that it be described or its value alleged in the indictment. Why, then, is it necessary, when the charge is obtaining property, that it should be described ? There are various kinds of money as well as various kinds of property. The crime does not consist in obtaining any particular kind of either money or property. It consists in obtaining money or property, without reference to its kind or value. The Clark case, as well as a great many other cases before cited, recognized the rule that an indictment is good which charges a statutory offense in the language of the statute creating it, subject to the qualification that the indictment must, by statutory description or other apt averment, so identify the offense as to meet the constitutional requirement, and it was there said: “While a statute can not dispense with a statement in the indictment of the essential elements of the crime charged against an accused person, still the legislature may provide that the property which is the subject of the crime may be described by words of general description.” That is precisely what the statute has done in cases of obtaining property by means of the confidence game. Section 98 states what is necessary to constitute the offense, and where that is so, an indictment charging the offense in the language of the statute is sufficient.

Viewed from a practical standpoint it appears to us that there is no valid reason for holding this indictment bad. We would certainly not sustain it if it violated, or if we understood it violated, any constitutional provision or right of the accused. We recognize it to be our duty to give full effect to all the constitutional and other rights of a defendant in a criminal case, but we also recognize it as our duty to sustain all legislative enactments unless satisfied, beyond a reasonable doubt, that they violate the fundamental law. (People v. McBride, 234 Ill. 146, and cases there cited.) The indictment here charges the accused obtained “the property” of Douglas Flake by means of the confidence game. That informed them “of the nature and cause of the accusation” and was sufficient. A bill of particulars will not aid a bad indictment, .and by the decisions of this court one is not required to be given under an indictment charging the confidence game in the language of the statute, either to enable the accused to know what he is charged with or that he may plead the judgment in bar of another prosecution for the same offense. (DuBois v. People, supra; People v. Weil, supra.) In some cases, however, courts, in their discretion, have at the request of the defendants required a bill of particulars to be furnished. That was done in this case. The bill of particulars is not preserved in the' record and no complaint is made of it. It will be presumed that it furnished more specifically a description of the acts of the accused and of the property alleged to have been obtained. It is, it appears to us, inconceivable that under such a charge the accused would not know what property of Flake they were charged with obtaining by means of the confidence game. In the very nature of things they knew of the transaction between them and Flake and the property obtained in the transaction. The crime did not depend upon the description or value of the property, but upon whether the accused obtained any property of Flake by means of the confidence game. This record shows they were not surprised or their proper defense interfered with, or that they were in any way injured because the property they were charged with obtaining was not described. There was but one transaction between the parties, and that was obtaining the stock of goods. Flake never met any of the parties, except Meriwether, before he met them in this transaction. Defendants were in no way prejudiced because the indictment did not aver the property was a stock of goods. Of course, it can be imagined that because there is real property and several kinds of personal property a defendant might not know which kind of property he was charged with obtaining, but it is hardly imaginable that when the person from whom he was charged ' with obtaining it is named, he would not know the kind or character of the property. Legislative acts should not be held invalid upon any such supposititious theory. In Cannady v. People, 17 Ill. 158, the indictment was for selling liquor without a license, and it was contended the indictment was insufficient because it failed to allege the name of the purchaser or that he was unknown. The contention was overruled, and in discussing it the court said: “These great niceties and strictness in pleading should only be countenanced and supported when it is apparent that the defendant may be surprised on the trial or unable to meet the charge or make preparation for his defense for want of greater certainty or particularity in the charge. Beyond this it tends more to the evasion than the investigation of the charge, and becomes rather a means of escaping punishment for crime than of defense against the accusation.” This language has been expressly approved in a number of subsequent cases. The object of the constitutional provision referred to is notice to the accused, and when the statute so individuates the offense that an indictment in its language is notice to the defendant of the nature and cause of the charge and what he is really to be tried for, it is sufficient. Cochran v. People, supra.

It is further contended the nature and cause of the accusation are not sufficiently stated in the indictment so as to enable the defendants to plead the judgment in bar of a subsequent prosecution for the same offense. Under the present practice, whether the indictment is for the same offense as that charged in a former indictment under which there has been a final judgment is not determined by an inspection and comparison of the indictments, under a plea setting up the former judgment in bar. The defense of former acquittal or conviction may be made under the plea of not guilty, and on the trial the party accused and the particular offense may be shown by parol testimony. Hankins v. People, 106 Ill. 628; Swalley v. People, 116 id. 247; Bartell v. United States, 227 U. S. 427; Morton v. People, supra.

Our conclusion upon this branch of the case is that the trial court did not err in overruling the motions to quash and in arrest.

It is also urged that the evidence is insufficient to sustain the verdict and judgment. The testimony is too voluminous to set out in full, and brief reference will be made only to the most material parts of it.

Douglas Flake testified he owned a stock of goods at Hidalgo, in Jasper county, Illinois, which he had recently traded for. He desired to sell it and had some correspondence with defendant Meriwether, whom he knew. On November 25, 1912, defendants Meriwether, Blanchard and Brady called at Flake’s store, in Hidalgo. Meriwether introduced Blanchard and Brady, both of whom resided in Decatur. They told Flake they had come to buy his stock of goods. Flake priced the stock at $4500 without an invoice, or eighty cents on the dollar of what it would invoice. After some talk they agreed on $4000 as the purchase price. Blanchard and Brady said they had recently bought a stock of goods and wére short of money. They proposed to trade property for the goods, but Flake refused to consider that proposition, as he wanted cash. They then proposed to give Flake their notes, which Flake said he would take if they were good, and that he would give them time if they would give him bankable notes. Brady said he owned 240 acres of land cornering with the corporate limits of Decatur, which was clear, and that he owned other property in Toledo, Charleston and Decatur, and said he was born and raised in Stewardson, Illinois, and formerly was in business there. He produced a recommendation signed by defendant Charles Wilson, of Stewardson. Four notes were written up for $1000 each, due in three, six, nine and twelve months, drawing five per cent interest, and signed by Blanchard and Brady. A bill of sale for the stock of goods was prepared but was not delivered. Flake was to go to Stewardson to investigate whether the notes were good, and if he found them good the bill of sale and stock of goods were to be delivered to the purchasers. Brady referred Flake to Wilson, and Flake said if he could get the cash for the notes the trade would be completed. That same night Flake and Meriwether left Hidalgo for Stewardson and Blanchard and Brady remained at Hidalgo. On arriving in Stewardson the next morning Flake and Meriwether saw Wilson between seven and eight o’clock in the back room of the bank Wilson was connected with, and Flake testified no one was present in the room but Wilson, Meriwether and himself. He showed the notes to Wilson and asked if they were good. Wilson said Brady was good for any amount he would contract for and that the notes were all right. Flake asked him if he would cash them, and he said he could not,—that money was close then. Flake said he wanted the money, and Wilson said he would cash them in twenty or thirty days at two per cent discount. Flake and Meriwether then left to return to Hidalgo. On their way Meriwether asked Flake if he could wire Blanchard and Brady, and said they had told him to do so if Flake found he could use the notes. Flake said that would be all right, and Meriwether wired the parties at Hidalgo. Flake and Meriwether arrived at Hidalgo that afternoon and found Blanchard and Brady had secured a car and loaded most of the stock for shipment to Mt. Auburn. Flake delivered them the bill of sale. In about twenty days, and again in about thirty days, Flake wrote Wilson but received no replies. Flake testified that in a week or so after he sold his stock of goods he went to Stewardson with Daniel Conners to see Wilson. Conners had a stock of hardware in Hidalgo, and Flake was talking to him about buying it and paying for it with the notes of Brady and Blanchard or some of them. Conners and Flake went together to see Wilson, and Conners asked him if the notes of Brady were good. Wilson said Brady was good for any amount he contracted for; that he had a recommendation from his bank, and that in a week or so he could probably cash the note's but at that time was short of funds. In July after the trade Flake again went to Stewardson to see Wilson about the notes, and Wilson said “he would see the boys and get the matter straightened up.” That was all witness could get out of him. • Flake made some effort to collect the notes but, was unable to do so. He traded two of them for an 8o-acre tract of land in Jasper county which was subject to a mortgage of $2500. Flake further testified he had a talk with Blanchard, Brady and Wilson about the payment of the notes in the fall of 1914, in Toledo, Illinois. Blanchard said he did not have anything and could not pay; that the other fellows got the money for which the goods were sold; that he (Blanchard) was simply used as a stool-pigeon. In his talk with Wilson he (Wilson) said he would see the boys on the road home that evening, talk the matter over with them and let Flake know in a few days what they were going to do, but Flake never heard from him.

A portion of a letter from Meriwether to Flake, dated December 17, 1912, was introduced in evidence. It was in reply to a letter written Meriwether by Flake, and from the part admitted in evidence it appears Meriwether was proposing to help Flake trade off the notes, for he says “this man” is ready to investigate the notes as soon as he found out that Flake would trade, “so you know we can get notes recommended and he is ready to trade.” Nothing came of that proposition however.

There is no dispute that Brady, in the presence of Blanchard and Meriwether, referred Flake to Wilson and the bank with which he was connected, for information whether the notes were good. There is a conflict as to whether Brady produced a written statement signed by Wilson stating that Brady was good for any amount he might contract for. Flake testified he did produce a recommendation, but he was not permitted to testify to the contents of it, but Mrs. Flake testified that he produced a recommendation stating Brady was financially responsible for any contract that he might make, and Flake also testified that in one of his interviews with Wilson, Wilson said Brady had such a recommendation. Blanchard, Brady and Meriwether denied that such recommendation was produced and shown Flake while negotiations for the trade were going on, and Wilson and Meriwether denied Wilson told Flake, in the bank, Brady had such a recommendation. Roley and Yakey, who claimed to have heard the talk between Flake and Wilson in the bank and who detailed what was said, or the substance of it, make no mention of such statement by Wilson. Wilson denies telling Flake in the bank that Brady was good and that he would take the notes at two per cent discount in twenty or thirty days, but says he told him he knew Brady well, had done a good deal of business with him and that Brady had always met his obligations, but that the amount was large and he would have to investigate further, as he did not know the principal, Blanchard, but at that time money was close and he was not buying notes. Meriwether, Roley and Yakey testified to substantially the same thing.

Daniel Conners testified that in January, 1913, he was talking with Flake about trading for the notes and he and Flake went to Stewardson to see Wilson. They saw him and inquired whether the notes were good and whether he would recommend them. They were the Blanchard and Brady notes given Flake, and Wilson said they were good notes but that he could not take them up for a few days. Wilson denied making such statement, which was also testified to by Flake.

Robert Holler testified he traded 80 acres of land subject to a $2500 incumbrance to Flake for two of the notes; that the day before he testified he talked with Blanchard about them, and Blanchard said Brady and Wilson got all he had and he could not pay the notes; that he had another conversation with Blanchard in the court room, and Blanchard said Wilson, the banker, was to take care of the notes and that he would see him; that Blanchard further said he was simply a stool-pigeon and that they got all he had. This was denied by Blanchard.

William A. Rogers, in rebuttal and by way of impeachment, testified that in January, 1913, he had a conversation with Wilson from Toledo, Illinois, over the telephone, in which he inquired of Wilson, at the Farmers’ and Merchants’ Bank in Stewardson, whether notes signed by Blanchard and Brady were good, and that Wilson said they were good, or gilt-edged, and he would pay cash for them. Wilson admitted having a conversation with Rogers about the financial responsibility of Blanchard and Brady but denied telling him their notes were gilt-edged. Defendants denied the Toledo conversation testified to by Flake.

We think the jury were entirely, warranted in concluding from -the testimony that the notes were worthless at the time they were given and that the parties who gave them then knew it. Blanchard testified that he did not claim he owned anything but a small stock of goods in Mt. Auburn. Brady testified that at the time the notes were given he owned real estate in Charleston, Villa Grove, Stewardson, Tuscola, Pana and Hunt, and that he owned some land in Johnson county, Illinois, 80 acres in Shelby county, and land in Tom Green county, Texas. He admitted much of it was incumbered and that the title to a considerable portion of it was not in him. At the time he testified he owned very little of it and did not claim to own much property. Blanchard, Brady and Meriwether admit Brady referred Flake to Wilson, at Stewardson, for information as to whether the notes signed by him were good. Flake refused to accept the notes without information that they were good and went to Stewardson to see Wilson, to whom he had been referred for information upon that subject. Flake’s testimony that Wilson said they were good and that he would cash them in twenty or thirty days is denied by Wilson and by Meriwether, who Flake admits was present, and by Roléy and Yakey, who Flake says were not present at the conversation when Wilson made that statement. Connery corroborates Flake that at the time they together called on Wilson when Conners was contemplating trading for the notes, Wilson said they were good but that he could not take them up for a few days. A circumstance to be considered in connection with all this conflicting evidence is, that immediately after talking with Wilson, Flake decided to accept the notes, turned the stock of goods over to the purchasers and authorized Meriwether to so wire them. Ordinarily one manifesting the caution about taking the notes that Flake manifested would not be expected to accept them and give up his property without favorable information as to their worth and value.

We cannot say that the jury were not warranted in concluding, from the evidence, that a part of the scheme to get the property for worthless notes was to induce Flake to see Wilson, who would, and did, recommend the notes as good. The importance, in connection with all the testimony, to be attached to the fact that after talking with Wilson, Flake accepted the notes signed by men he knew nothing about, and who were, in fact,'financially irresponsible, was a question for consideration by the jury. Where the evidence is so insufficient to sustain a verdict in a criminal case that the verdict would seem to be the result of passion or prejudice it will not be approved by a reviewing court, but. in criminal cases the jury are the judges of the weight and credibility of the testimony, and their verdict will not be disturbed by a court of review because the evidence is conflicting. Rogers v. People, 98 Ill. 581; Hanrahan v. People, 91 id. 142; People v. McCann, 247 id. 130.

We have examined the criticisms of three instructions given on behalf of the People and are of opinion no error was committed by the court in that respect.

We are also of opinion there is no valid objection to the rulings of the court in the admission and rejection of evidence. Upon that question the rulings of the court, we think, were more favorable to the defendants than the law required. The court might well have admitted the testimony of Rogers as to a precisely similar transaction between himself and all the defendants except Meriwether, (DuBois v. People, supra; People v. Weil, supra;) but his testimony was ruled out upon objection of defendants.

We find nothing in this record that would appear to us to justify a reversal of the judgment, and it is affirmed.

Judgment affirmed.