Towne v. People , 89 Ill. App. 258 ( 1900 )

Me. Presiding Justice Sears

delivered the opinion of the court.

The first question presented upon this record is the sufficiency of the various counts of the indictment. We will consider these counts in the reverse order of their numbering. The fifth, sixth and seventh counts are alike in substance, and each of them presents only that plaintiffs in error did “ unlawfully, malicious!y,wrongfully and wickedly conspire and agree together with the fraudulent and malicious intent, then and there wrongfully and wickedly to injure the business and property of the Lumberman’s Building and Loan Association, etc., contrary to the statute,” etc.

It is contended by counsel for the plaintiffs in error that these counts are insufficient in that they do not charge a conspiracy to do any act which is of itself unlawful, nor to do any lawful act by means which are unlawful. It is also contended that the charge of these counts is not set forth with- a degree of certainty sufficient to inform the one accused of the nature of the accusation. On the other hand, counsel for the people contend that the charge of these counts, being in the language of the statute, is therefore sufficient.

The statute in question provides as follows:

“ If any two or more persons conspire or agree together, * * * with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business or employment, or property of another, * * * or to d o any illegal act injurious to the public trade, health, morals, police or administration of public justice, * * * or to commit any felony, they shall be deemed guilty of a conspiracy,” etc.

The question presented is whether these three counts of the indictment which present in the language of the statute that plaintiffs in error did cpnspire to injure the property and business of the Lumberman’s Building and Loan Association, are sufficient without any allegation as to the nature of the injury which was the object of the conspiracy, and without any allegation as to the means by which such injury was to be effected. We are of opinion that these counts are insufficient.

The rule that it is sufficient to charge a statutory crime or offense in the language of the statute, is subject to qualification. Whether in any case it is enough that the indictment is merely framed in the words of the statute, must depend upon whether the words of the statute so far particularize the offense as by their use alone to notify the accused of the precise offense charged upon him. West v. People, 137 Ill. 189; Hunter v. People, 52 Ill. App. 367; Williams v. People, 67 Ill. App. 344; Bishop’s Stat. Crimes (2d Ed.), Sec. 447b, and 449; State v. Costello, 62 Conn. 128; Brown v. State, 76 Ind. 85; State v. Howard, 34 L. R. A. 178; U. S. v. Cruikshank, 92 U. S. 542.

The statute here is broad enough to cover a multitude of different forms of injury, any one of which might be the object of the agreement which is made an offense. As said in the Hunter case, supra, it would have been quite impracticable to set out in the statute all the various ways by which an injury to business or property might be effected, or the various forms of injury thus brought within the scope of the act. Therefore the offense is stated in general terms. It covers in the general provision any special injury to the business, etc., of another, which the offenders unlawfully conspire to do. But this general provision does not obviate the necessity of presenting in the indictment the special injury which was the object of the conspiracy charged. Suppose that the allegation had been that plaintiffs in error had conspired together with the malicious intent, etc., to commit a felony, without specializing the felony; how could the accused, if innocent of the charge, learn from the language of the indictment or statute the nature of the offense which it was sought to prove against him ? What felony? And in the indictment here, what injury?

In the West case, supra, the court said :

“Under every sort of constitution known among us, an indictment which does not substantially set down, at least in general terms, all the elements of the offense, everything which the law has made essential to the punishment it imposes, is void. And besides this, under most of our constitutions, the allegation must descend far enough into particulars and be sufficiently certain in its form of words to give the defendant reasonable notice of what is meant.”

Wharton gives the rule applying to such statutory offenses as follows:

“ On the general principles of common law pleading it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is tried for really is. It is no more allowable under a statutory charge to put the defendant on trial without specification of the offense, then it would be under a common law charge.” Wharton’s Crim. Pl. & Pr. (8th Ed.), Sec. 220.

Bishop announces the same rule in substance. 1 Bishop New Cr. Pr. (4th Ed.), Sec. 81 et seq., and 623 et seq.

Nor does the effect of section 408 of the Criminal Code operate against this rule. That section provides as follows: ■

“ Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury,” etc.

This provision has been construed by our Supreme Court as relating to matters of form and not to the substantial requirements of an indictment. McNair v. People, 89 Ill. 441; Johnson v. People, 113 Ill. 99; Prichard v. People, 149 Ill. 50; Cochran v. People, 175 Ill. 28; Williams v. People, 67 Ill. App. 344; Rank v. People, 80 Ill. App. 40.

In Johnson v. People, supra, the court said : It sometimes happens, however, that the language of a statute creating a new offense does not describe the act or acts constituting such offense. In that case the pleader is bound to set them forth specifically. Kibs v. People, 81 Ill. 599; and 1 Wharton on Crim. Law, Secs. 164, 872.

In Cochrane v. People, supra, the indictment charged that Cochrane did unlawfully, etc., administer and use on one Stella Eoberts, then and there being a woman pregnant with child, a certain instrument, the name of which is to the grand jurors unknown, with the intent then and there to produce an abortion, etc., the said Coehrane then and there well knowing that the said instrument would produce such miscarriage, etc., and by reason of such miscarriage, the said Eoberts then and there died, etc. The court held that the indictment was insufficient to sustain a conviction, saying:

“ Both counts attempt to charge that the offense was committed with an instrument. * * * Eo attempt whatever is made in either count to state how or in what manner the instrument was used, etc. * * * The only attempt to justify this departure from well understood rules of criminal pleading, is the contention that being a statutory offense, the indictment is sufficient as charging it in the terms and language of the statute, or so plainly that the nature of the offense might be easily understood by the jury, relying upon section 6 of division 11 of the Criminal Code. * * * It is not intended to announce any rule which will render nugatory the provision of section 6 of division 11 of the Criminal Code, wisely intended to simplify criminal pleadings and dispense with many technical and useless averments heretofore required in indictments; but we are not prepared to hold that a defendant indicted under a statute of this kind for a most serious offense is not fairly entitled to notice by statements in the indictment, as to the act or acts with which he is charged in the commission of the offense.”

Section 6 of division 11, above referred to, is the same provision of the act otherwise described as section 408 of the Criminal Code.

And in Williams v. People, supra, this court, speaking through Mr. Presiding Justice Boggs, said:

“ If the language of the statute sufficiently describes the actor acts constituting the offense, then no more is required than that the words of the statute be employed in the information or indictment; but when, as in the case at bar, the statute does not so describe such acts, then the indictment must set them forth.”

We are of opinion that the fifth, sixth and seventh counts of this indictment are, and each is, wholly insufficient to sustain the conviction.

The first three counts of the indictment are out of consideration, because in each of these counts it is charged in effect that plaintiffs in error conspired to represent to members of the association, for the purpose of inducing nine or more of them to join in a petition for a receiver, that the association was insolvent; that the annual 'statement and report of the assets of the association (setting the report out), showing conditions on December 31,1897, made by one Hooper, secretary of the association, and sworn to by him on January 12, 1898, etc., and filed with auditor, etc., of State of Illinois, was false and untrue; and charging further that the association was not then insolvent, and that the said report was not false and untrue, etc., which averments are not sustained by the evidence.

Without going into a needless discussion of the sufficiency of these three counts in substance or certainty of averment, it is enough to say that the evidence does not establish, or even tend to establish, the charge that plaintiffs in error conspired to make representations that the report as set forth in the indictment was false. The indictment undertook to describe the report of December 31,1897, and did describe it as sworn to by Hooper, secretary of the association, on January 12, 1898. Ho such report appears even to have been sworn to by the secretary upon that date. The report offered in evidence, as the report set forth in these counts of the indictment, was sworn to by Hooper, secretary, upon the 13th of January, 1898. The report set forth in these counts is further described as a report filed with the auditor of public accounts of the State of Illinois. The report offered in evidence was not filed in the office of the auditor until March 7, 1898, after the date of the offense as laid in some of the counts, and after the date of some of the acts by plaintiffs in error, shown as proving the alleged conspiracy. John Berg testified to acts of plaintiff in error Towne, upon March 5th; Becker to acts upon March 5th or 6th. It is not established by any evidence that plaintiffs in error conspired to make representations of any nature as to “ a report sworn to by the secretary of the association on the 12th day of January, 1898, and filed by him with the auditor of public accounts.”

These averments are of the means by which the injury charged as the object of the conspiracy was to have been committed. They are material averments and they are not proved. Therefore, these three counts, as well as the last three, are out of consideration as supporting this conviction. Limouze v. The People, 58 Ill. App. 314; Bromley v. The People, 150 Ill. 297.

We come then to a consideration of the fourth count of the indictment. The substance of that count is set forth in the statement of facts preceding this opinion. It presents in effect that the unlawful conspiracy was to falsely represent to certain members of the association that the association was insolvent, for the purpose of getting nine or more members to join in a petition praying for the appointment of a receiver for the association, and with the fraudulent and malicious intent to thus injure the business and property of the association; and the indictment presents that the association was not then and there insolvent, as plaintiffs in error well knew, etc.

We are of opinion that this count would be sufficient to sustain the conviction, if the evidence supported it, and in absence of error in procedure.

The gist of the offense, the unlawful conspiracy to injure the business and property of the association, the nature of the injury, the filing of a petition for the appointment of a receiver, and the means by which the injury was to be effected, the representing falsely to members that the association was insolvent, are all so plainly set forth by this count that the provisions of section 408 of the Griminal Code apply, if they ever apply to aid any indictment. The indictment by this count states the offense in the language of the statute so plainly that the nature of the offense may be easily understood by the jury, and with sufficient of particularity to put the accused upon fair and full notice of the precise nature of the charge he was to meet.

We have, then, to inquire as to the evidence and the rulings of the trial court upon matters of procedure.

Without discussing the evidence at length, it is sufficient, in view of the disposition that must be made of this cause, to say that we are not prepared to hold that the evidence ■is insufficient to sustain a conviction under the fourth count of the indictment, if there was no serious error in procedure.

Among the errors complained of is the admitting, over objection, of evidence of a former unlawful attempt to procure the appointment of a receiver for the property of another and different association. Testimony was admitted over the objection of plaintiffs in error, tending to show that in February, 1898, preceding the alleged offense, plaintiff in error Towne had prepared a petition seeking the appointment of a receiver for the property of another similar association, viz., The Masonic Mutual Savings and Loan Association, upon the ground set up in the petition that it was insolvent; and that in consideration of the payment of a sum of money by officers of that association, Towne had desisted from filing the petition. Plaintiff in error Mowatt, was in no way connected with the transaction. It is contended by counsel for the State that this evidence was competent to show intent. We are of opinion that the evidence was incompetent for any purpose, and that it was error to admit it. It is true that the rule which excludes, upon trial for one offense, evidence of other and distinct offenses, recognizes an exception in cases where it is necessary to show such other and distinct offenses for the purpose of proving knowledge or intent in the committing of the offense for which trial is had. Thus, it is frequently permitted in practice, and sanctioned, to show upon indictment for uttering forgeries and counterfeits that like acts have been committed by the accused, and for the purpose of establishing the guilty knowledge and intent in the instance under investigation. So, too, this exception to the general rule has been extended, though less .frequently, to other cases, such as arson, robbery and conspiracy. But the general rule is salutary, and departure from it is perilous, and hence courts are reluctant to extend the exception to the rule beyond well established lines. While the decisions of different jurisdictions vary somewhat as to the application of this exception to the rule, yet they are all in substantial accord upon the proposition that unless there be some apparent logical connection between the two offenses, either by reason of both being of the res gestes, or both being part of one system, or the one tending to show a scienter in the other, the general rule governs, and the exception to it does not apply. Commonwealth v. Jackson, 132 Mass. 16; Swan v. Commonwealth, 104 Pa. St. 218; People v. Sharp, 107 N. Y. 427; Snapp v. Commonwealth, 82 Ky. 173.

Our Supreme Court has taken very decided ground upon the question. Kribs v. People, 82 Ill. 425; Baker v. People, 105 Ill. 452; McDonald v. People, 126 Ill. 150; Farris v. People, 129 Ill. 521; Parkinson v. People, 135 Ill. 401.

And this court, in Jackson v. People, 18 Ill. App. 508, adhered to the safe application of the general rule.

The safety of the general rule and the danger of departure from it is well illustrated in this case. The transaction with the Masonic association had no connection whatever with the matter here in question. Plaintiffs in error are here charged with a conspiracy, and in the former transaction one of them only was concerned. The indictment gave them no notice whatever that the former transaction was to be investigated upon this trial. And yet a very large amount of evidence was admitted to establish the participation of plaintiff in error Towne, in that matter. It was not part of res gestes of the subject-matter of this trial. No system is shown of which it was a part. Nor are we prepared to hold that the participation of Towne in the former transaction tends to show a scienter on the part of Towne and Mo watt in entering into the unlawful agreement which is the gist of the offense here charged.

The Illinois cases relied upon by counsel for the State are: Dunn v. People, 40 Ill. 465; Thomas v. People, 59 Ill. 160; Ochs v. People, 124 Ill. 399; Williams v. People, 166 Ill. 132; Crane v. People, 168 Ill. 395; Schintz v. People, 178 Ill. 320; Orr v. People, 63 Ill. App. 305.

In the Dunn case the evidence in question was of a matter clearly connected with the transaction there involved, In the Thomas case the evidence ivas held competent not only to show guilty knowledge, but, as well, a part of a scheme or system, and it was clearly connected with the acts constituting the offense there charged. We are unable to find anything in the decision of the Ochs case which applies here. In the Williams case the evidence in question was admitted as showing other offenses which were part of one general scheme or system with the offense charged. And the court, in passing upon its admissibility, said:

“ It seems to be well settled that when the offered evidence tends to prove the charge in the indictment, the mere fact that it may tend to prove another crime does not make it inadmissible. If, however, the offered evidence only tends to prove that the accused committed another crime, and for that reason it is probable that he may have committed the crime alleged in the indictment, the admission of such evidence would be erroneous. * * * While there may be some doubt in regard to the ruling of the court on the admission of the evidence complained of, and while ive might be better satisfied with the verdict of the jury had the court excluded the evidence, yet the guilt of the plaintiff in error was so clearly established that we do not regard the ruling of the court on the admission of evidence as sufficient ground to cause a reversal of the judgment.”

In the Crane case the disputed evidence was of matters directly connected with the offense there charged, and the decision in that case has no bearing upon the question here presented. In the Sehintz case the court said of the evidence there in question:

“ The evidence would have been improper but for the fact that the Keck note and mortgage belonged to the Ertel estate. The offense charged was with reference to the property belonging to the estate of Frances Ertel. Any fact necessary to introduce or explain another which is in issue may be proven.”

In the Orr case, this court said :

“ It may be regarded as settled that any evidence which tends to prove the issue is competent, notwithstanding that it may be injurious to the defendant and may tend to prove distinct offenses against him.”

In the case here under consideration, the proof of the distinct offense did not tend to prove the issue, viz., an alleged conspiracy by plaintiffs in error. We find nothing in any of the Illinois decisions cited by counsel and above considered, which supports the contention that this evidence was competent. That it was prejudicial to plaintiffs in error is a probability too strong to be disregarded. We are. therefore, disposed to view the admission of the evidence as to the transaction between plaintiff in error Towne and the Masonic association as reversible error.

Another question of controlling importance, which is raised upon this record, is as to the punishment fixed by the verdict and judgment. The verdict fixed the punishment of plaintiff in error Towne “ at imprisonment in the penitentiary ” and a fine. He was sentenced, under the provisions of the indeterminate sentence act, to imprisonment in the penitentiary without fixing any definite period of imprisonment. It is contended by counsel for plaintiff in error Towne that in this there was error, and that the provisions of the indeterminate sentence act do not apply to the offense of which this plaintiff in error was found guilty. We are of opinion that the contention is sound. There is no decision, so far as we are aware, in which the precise point here involved has been considered and settled. But bv analogy, the decision in Lamkin v. The People, 94 Ill. 501, would seem to govern. In that case the controlling question was as to whether the offense was a felony or a misdemeanor. The offense charged there, as here, was conspiracy, and it was held that because the punishment of the offense was either by imprisonment in the penitentiary or by a fine, it was not within the terms of our statute defining a felony as an offense punishable with death or by imprisonment in the penitentiary. Applying to the question presented the same reasoning followed in the Lamkin case, we are led to the conclusion that the offense here being a misdemeanor, does not fall within the provision of section 498 of the Criminal Code. The language of the act is “ that every person * * * convicted of a felony or other crime punishable by imprisonment in the penitentiary,” etc. This would include a misdemeanor as well as a felony, provided the misdemeanor was one punishable by imprisonment in the penitentiary within the meaning of the act. But the Lamkin case decides that an offense punishable by either imprisonment in the penitentiary or by fine, is not an offense within the meaning of such language. We can not, without disregarding the decision in that case, hold that the provisions of the indeterminate sentence act include a misdemeanor punishable by either imprisonment in the penitentiary or by a fine alone. The construction adopted in the Lamkin case has been adhered to in Baits v. People, 123 Ill. 428, and in Herman v. People, 131 Ill. 594.

Question is also raised as to the ruling of the trial court in the matter of the application of plaintiffs in error, for a bill of particulars. In view of the disposition which must be made of this cause, it is not necessary to go into a consideration of the procedure of the trial court in relation to this motion. It is enough to say that under the rule of procedure in this State, plaintiffs in error would be entitled to such a bill of particulars upon motion. McDonald v. People, 126 Ill. 150.

Whether the court refused the rule moved for, whether the inspection of the books of the association was accepted in lieu of a bill of particulars, and whether the averments of the first three counts were agreed upon to be a bill of particulars, are all matters of no further importance in this case. For the same reason, we deem it unnecessary to discuss the motion for an election by the State between the counts of the indictment.

¡No other questions of procedure are presented which we regard it necessary to consider.

For the error in admitting the evidence above indicated and because the punishment fixed by the judgment is unwarranted under the statute, the judgment is reversed and the cause is remanded.