Bois v. People

• Citation: 200 Ill. 157,65 N.E. 658
• Parties: DU BOIS v. PEOPLE.
• Decision Date: 16 December 1902
• Court: Illinois Supreme Court

200 Ill. 157

65 N.E. 658

DU BOIS

v.PEOPLE.

Supreme Court of Illinois.

Dec. 16, 1902.

Error to criminal court, Cook county; Frank Baker, Judge.

Harry Du Bois was convicted of obtaining money by the confidence game, and brings error. Affirmed.

John E. Northup, for plaintiff in error.

Charles S. Deneen, State's Atty. (Edw. S. Elliott, Asst. State's Atty., of counsel), for the People.

WILKIN, J.

Harry Du Bois, alias Harry I. Harris, and Charles M. Fegenbush, alias Charles K. Thorne, were indicted by the grand jury of Cook county, at the November term, 1900, of the criminal court, for the crime of obtaining money by means and by use of the confidence game. Upon the trial at the May term, 1902, they were convicted and sentenced to the penitentiary at Joliet. Harry Du Bois, alias Harris, alone prosecutes this writ of error.

The testimony of the prosecuting witness, Mrs. Laura G. Fixen, shows that she resided in the city of Chicago, and knew both defendants. She first met Fegenbush, who called himself Thorne, early in the fall of 1900, at which time she answered an advertisement which he had caused to be published in the Sunday Tribune, and he called upon her. The advertisement was to the effect that any one who would invest money with him could double it or get large returns for it in a short time. When he called upon her, which was early in September, he read a letter to her which he said was from his brother, in Denver, Colo., to the effect that the brother knew certain firms there who were anxious to buy stock in a valuable mine, and Fegenbush told her that he knew where a large block of the stock was; that a man by the name of Harris had it, and that the Colorado parties had difficulty in locating him, but that he (Fegenbush) had located him, and would take her to the man, if she thought she wanted to buy the stock; that she could sell it to the Colorado parties,—and that he then read the names of the parties in Denver from the letter purporting to be from his brother. She told him she would go and see Harris, and they went together the same day. They found Harris about 29 Indiana avenue, in bed, with his head bundled up; claiming to be suffering from rheumatism, and seeming to be in great pain. He showed her the stock and said he wanted to sell it so he could go to Hot Springs. She obtained from him an option for 60,000 shares of stock, at 5 cents per share, in the Ward Consolidated Gold Mine Company of Colorado, to be paid for before September 20, 1900; else the agreement should be void. Fegenbush was present at the time of the signing of the option agreement, and, as soon as they left the house, Mrs. Fixen went to the telegraph office, and telegraphed the parties in Denver, whose names had been given her, asking what they would give for the stock. In about two hours she received replies, purporting to be signed by the firms telegraphed to, each making an offer for the stock, ranging from 10 to 20 cents per share for the entire block of 60,000 shares. Upon receiving these telegrams she went the next day to see Harris, thinking it was a good investment, and taking with her $3,000 in cash. She found him in bed, as before, and after some negotiations she took an assignment of the stock, and paid him the $3,000. She immediately took a train for Denver, and upon arriving there made inquiry for the parties whose names were signed to the dispatches received by her, and soon ascertained that there were no such persons or firms in the city,—in other words, that the dispatches were false and fictitious. She returned immediately to Chicago, and began to look for the defendants, but failed to find either of them. She then reported the case to the police, and the defendants were subsequently located in Washington City and arrested, but by some means successfully resisted the extradition papers. They were later found in the city of New York, arrested, and brought back to Chicago. They gave bond for their appearance, but their recognizance was forfeited; but they were finally brought to trial, with the result above mentioned

It is clear, not only from the testimony of Mrs. Fixen, but from that of the defendants themselves, that the whole scheme was a plot to obtain the money of Mrs. Fixen by fraudulently obtaining her confidence and inducing her to believe that the worthless shares of stock held by Harris were of great value. That the dispatches sent by her from Chicago to Denver, inquiring what the stock could be sold for, were answered by a confederate of the defendants, is perfectly clear. Fegenbush virtually admits it by saying, ‘I don't know that I had a confederate in Denver to answer these telegrams.’ In short, the evidence is overwhelming that the defendants, acting together, by false and fraudulent means, commonly known as the ‘confidence game,’ obtained the money of the prosecuting witness.

Counsel for plaintiff in error admits that the conduct of defendants was criminal, but seeks to show that the crime committed was that of obtaining money by false pretenses, and not a violation of the statute against obtaining money by means of the confidence game; the argument being that the ‘means, instrument or device’ used was not such as is contemplated by the use of those terms in the statute, and therefore the evidence fails to support the verdict. Section 98 of the Criminal Code (1 Starr & C. Ann. St. 1896, p. 1280) is as follows: ‘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.’ The words, ‘or by any other means, instrument or device,’ were intended by the legislature to embrace any other means, instrument, or device than false or bogus checks, which comes within the meaning of what is commonly called the ‘confidence game.’ Maxwell v. People, 158 Ill. 248, 41 N. E. 995. ‘Confidence game is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler.’ Webst. Int. Dict. This definition was quoted and adopted in Maxwell v. People, supra. The Century Dictionary and Cyclopedia (volume 2, p. 1183) defines ‘confidence game’ as ‘a kind of swindle practiced, usually in large cities, upon unwary strangers.’

In is further said by counsel for plaintiff in error ‘that the means, instrument, or device relied upon by the state as indicating guilt must be that which is actually given or parted with for the money or property of another, and therefore the proximate cause inducing such person to part with his money or property.’ This proposition is clearly unsound. The confidence game is most frequently practiced by the use of cards, dice, or other means, instrument, or device, in which game the victim gets nothing, but is simply swindled out of his money by a trick, as was the case in Maxwell v. People and Van Eyck v. People, 178 Ill. 199, 52 N. E. 852. The means used in this case were, to our minds, clearly within the inhibition of section 98. While the point was not raised in Morton v. People, 47 Ill. 468, the language of Chief Justice Breese, who rendered the opinion in that case, clearly sustains the view here expressed.

Two witnesses were introduced by the prosecution (Berlizheimer and Brewer), and allowed to testify, over the objection of counsel for the defendants, to certain transactions by Du Bois similar to the one practiced upon Mrs. Fixen, and that ruling is assigned for error. In so far as that testimony tended to show a willingness on the part of the defendant Du Bois to commit other offenses similar to the one...