People v. Weil

• Decision Date: 02 February 1910
• Citation: 243 Ill. 208,90 N.E. 731
• Parties: PEOPLE v. WEIL.
• Court: Illinois Supreme Court

243 Ill. 208

90 N.E. 731

PEOPLE

v.WEIL.

Supreme Court of Illinois.

Dec. 16, 1909.

Rehearing Denied Feb. 2, 1910.

Error to Criminal Court, Cook County; Theodore Brentano, Judge.

Joseph Weil was convicted of obtaining money by means of the confidence game, and brings error. Affirmed.Stedman, Soelke & Shutan, for plaintiff in error.

W. H. Stead, Atty. Gen., John E. W. Wayman, State's Atty., and Joel C. Fitch (Robert E. Crowe and Frederick Burnham, of counsel), for the People.

At the March term, 1909, the grand jury of Cook county returned into the criminal court of Cook county against the plaintiff in error an indictment containing two counts. The first count charged the plaintiff in error with having obtained from Thomas E. Brabenec the sum of $30 by false pretenses, in violation of section 96 of the CriminalCode (Hurd's Rev. St. 1908, c. 38); and the second count charged plaintiff in error with obtaining a like amount from said Thomas E. Brabenec by means of the confidence game, in violation of section 98 of the Criminal Code. After a motion to quash the indictment, and each count thereof, had been overruled, a plea of not guilty was entered, and upon a trial a verdict was returned finding the plaintiff in error guilty under the second count of the indictment, and upon which verdict, after overruling a motion for a new trial, the court sentenced the plaintiff in error to the penitentiary, and he has sued out this writ of error to review said judgment of conviction.

The undisputed evidence shows that Thomas E. Brabenec was in the employ of the Clinton Wire Cloth Company as cashier, whose place of business was at No. 30 River street, in the city of Chicago; that at about 6 o'clock on the evening of December 5, 1907, the plaintiff in error went to the business place of said Clinton Wire Cloth Company in company with a man whose name he said was Moore; that the business place of the Clinton Wire Cloth Company was closed for the day and Thomas E. Brabenec was in the office alone; that the plaintiff in error knocked on the office door; that Brabenec went to the door, where he found the plaintiff in error, who was a well-dressed man and presented a favorable appearance, and admitted the plaintiff in error and Moore to his office, whereupon the plaintiff in error said to Brabenec his name was Watson, and he inquired for Mr. E. F. Schmidt, the former cashier of the Clinton Wire Cloth Company, who, he said, was his friend; that on being informed by Brabenec that Mr. Schmidt had severed his connection with the Clinton Wire Cloth Company and was not in its employ, plaintiff in error said he was in the employ of the American Wire Fence Company, of the city of Chicago, and that while he was crossing the Rush street bridge he had just lost his pocketbook; that after some conversation between the parties the plaintiff in error asked Brabenec if he could not let him have some money—a few dollars. Brabenec asked him how much he wanted, and he said about $10. Brabenec went to the safe, where he had $35 which he had drawn as wages, took out the package containing the money and took a $10 bill from the package and laid it on the counter. The plaintiff in error thereupon picked up a card and wrote an I. O. U. thereon for $10 and signed it ‘J. R. W., 184 La Salle St.,’ and said he would send the money over by the office boy the next morning. As Brabenec laid out the $10, the plaintiff in error said, ‘Can you let me have $20?’ and changed the I. O. U. to $20, and when Brabenec laid out $20 he said, ‘Make it $30,’ and changed the I. O. U. to $30, and took from his pocket a watch which he removed from his fob, and said, ‘I will leave this watch with you for security,’ and picked up the $30. Brabenec placed the watch and the I. O. U. and the balance of his money in the safe, and the plaintiff in error left the office. The plaintiff in error did not send over the money, as he had agreed to, on the next morning, and it turned out on investigation that his name was not Watson, that he did not know Mr. Schmidt, that he was not in the employ of the American Wire Fence Company, that the watch which he gave Brabenec was worth at wholesale $1.60, and that the scheme he worked on Brabenec he had, a short time before he obtained Brabenec' money, worked on Frank T. Dicey, of whom he obtained $10.

HAND, J. (after stating the facts as above).

The first contention of the plaintiff in error is that the court erred on overruling his motion to quash the indictment and each count thereof. The verdict of guilty on the second count was equivalent to a verdict of not guilty on the first count. People v. Whitson, 74 Ill. 20;Keedy v. People, 84 Ill. 569;Thomas as v. People, 113 Ill. 531. By the verdict the first count was eliminated from the case, and error cannot be assigned upon any of the rulings of the court with reference to that count, and the second count was in the language of the statute and was a good count. Graham v. People, 181 Ill. 477, 55 N. E. 179,47 L. R. A. 731. The court did not err, therefore, in overruling the motion to quash.

It is next urged that the court erred in overruling the motion of the plaintiff in error for a bill of particulars under the second count of the indictment. Whether or not the state's attorney should have been ruled to furnish the plaintiff in error a bill of particulars under the second count of the indictment was a matter which rested in the sound legal discretion of the trial court. The second count of the indictment was sufficiently specific to notify plaintiff in error of the criminal offense with which he was charged, and the court did not err in overruling his motion for a bill of particulars. Morton v. People, 47 Ill. 468;Du Bois v. People, 200 Ill. 157, 65 N. E. 658,93 Am. St. Rep. 183;Gallagher v. People, 211 Ill. 158, 71 N. E. 842.

It is also contended that the court erred in declining to require the state's attorney, at the close of the people's case, to elect upon what count of the indictment he would ask for a conviction, and in permitting the state's attorney to call witnesses whose names were not upon the back of the indictment. If two or more offenses are properly joined in an indictment under separate counts and grow out of the same transaction, the state's attorney will not be required to make an election for which offense charged in the indictment he will ask a conviction. The right to requirethe state's attorney to elect for which offense he will ask the jury to convict, when more than one offense is charged in different counts of an indictment, is confined to cases where the offenses charged in the different counts of the indictment are actually distinct from each other and do not arise out of the same transaction. Goodhue v. People, 94 Ill. 37;Andrews v. People, 117 Ill. 195, 7 N. E. 265;Herman v. People, 131 Ill. 594, 22 N. E. 471,9 L. R. A. 182. And it is within the sound legal discretion of the court to allow a witness to be called whose name is not indorsed on the back of the indictment (Logg v. People, 92 Ill. 598), and the exercise of that discretion will not be reviewed by this court unless it appears that the defendant has been taken by surprise (Gifford v. People, 148 Ill. 173, 35 N. E. 754), and the burden is upon the defendant to show that he was surprised. Here it appeared the counsel for the plaintiff in error was notified orally before the trial was commenced, in the presence of the plaintiff in error, by the state's attorney, that the witnesses whose testimony was objected to and whose names were not upon the back of the indictment would be called and examined as witnesses upon the trial. While the practice, generally, is to give such notice in writing, we think it clear no surprise was worked upon the plaintiff in error, and that the court did not err in permitting certain witnesses to be called by the state's attorney and to testify upon the trial, although their names did not appear upon the back of the indictment.

It is further contended that the court erred in ruling upon the admission and rejection of the evidence. The most of the objections urged to the rulings of the court in this particular are hypercritical and need not be considered, and the specific objection that the court permitted proof of other offenses cannot be sustained, as it was proper to prove plaintiff in error had obtained the...