Cooke v. People

• Decision Date: 11 December 1907
• Citation: 82 N.E. 863,231 Ill. 9
• Parties: COOKE v. PEOPLE.
• Court: Illinois Supreme Court

231 Ill. 9

82 N.E. 863

COOKE

v.PEOPLE.

Supreme Court of Illinois.

Oct. 23, 1907.

Rehearing Denied Dec. 11, 1907.

Error to Branch Appellate Court, First District, on Error to Criminal Court, Cook County; Ben M. Smith, Judge.

John A. Cooke was convicted of conspiring to defraud a certain county and obtain its money by false pretenses. From a judgment of the Branch Appellate Court, First District, affirming a conviction in the criminal court, defendant brings error. Affirmed.

Daniel Donahue and James Hartnett, for plaintiff in error.

W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Hobart P. Young, of counsel), for the People.

HAND, C. J.

The grand jury of Cook county, at the April term, 1906, returned into the criminal court of said county an indictment charging the plaintiff in error with having formed a conspiracy with Charles H. Bradley, and with divers other persons whose names were to the grand jurors unknown, to cheat and defraud Cook county, and to obtain by means of false pretenses from said county a large sum of money. A motion to quash the indictment was overruled, whereupon a bill of particulars was filed by the state's attorney upon the motion of the plaintiff in error, and a plea of not guilty was entered, and a trial was had before the court and a jury, which resulted in the conviction of the plaintiff in error, and a judgment sentencing him to pay a fine of $2,000 and to be imprisoned in the penitentiary for an indeterminate period, which judgment was affirmed by the Branch Appellate Court for the First District, and a writ of error has been sued out from this court to review the record made in said cause.

It appears from the undisputed evidence that the plaintiff in error was elected clerk of the circuit court of Cook county, Ill., on November 3, 1896, and on December 7th of that year he duly qualified as such clerk and entered upon the discharge of the duties of said office, and continued to act as clerk of said court until December 5, 1904-a period of eight years, he having been re-elected in the year 1900; that Charles H. Bradley, who was named as a co-conspirator in the indictment, was appointed chief clerk of the circuit court of Cook county in the year 1884 by the then clerk of said court, and continued to act as chief clerk of said court up to the year 1896; that the plaintiff in error, upon his election to said office, appointed said Charles H. Bradley his chief clerk, which position Charles H. Bradley continued to hold until June 30, 1904, when he was succeeded as chief clerk of the circuit court by John E. Seinwerth, which position Seinwerth continued to occupy until the expiration of the term of office of the plaintiff in error as circuit clerk of said county; that the salary fixed by law for the circuit clerk of Cook county during the eight years that plaintiff in error held said position was the sum of $5,000 per annum; that shortly after plaintiff in error was elected circuit clerk he stated to Charles H. Bradley the office ought to pay him, as he was informed, from $10,000 to $15,000 per annum; that in 1897 plaintiff in error and Charles H. Bradley, and so long as Bradley remained chief clerk, and afterwards Seinwerth while he acted as chief clerk, systematically padded the pay rolls in the circuit clerk's office in said county from month to month, by placing on said pay rolls the names of real or fictitious persons who were not employed in the circuit clerk's office of Cook county, and by means of such padded pay rolls, during the eight years the plaintiff in error was circuit clerk of Cook county, he fraudulently obtained from the county treasury of said county the sum of $22,590.51; that the plaintiff in error and Bradley or Seinwerth would select from the city directory, or otherwise, a list of names, which, when the monthly pay roll of the circuit clerk's office was made up, would be placed thereon; that the pay roll of said office, with said fictitious names thereon, would then be filed in the comptroller'soffice of the county of Cook by Bradley or Seinwerth; that warrants would be issued to each individual whose name appeared upon the pay roll. Each employé in the office of the circuit clerk would receive, personally, his warrant from the comptroller, which, upon its being properly indorsed by him and presented, would be paid to him by the county treasurer. The warrants which were issued in the names of the fictitious persons would be received and receipted for by Bradley or Seinwerth. The payees' names would thereupon be indorsed upon said warrants by either Bradley or Seinwerth, and the warrants would be presented to the county treasurer and payment received thereon. When the money was collected upon said warrants, it would be turned over by Bradley or Seinwerth to the plaintiff in error, or at his dirrection be deposited to his individual account in the Chicago National Bank of Chicago. In one instance the original warrants issued to 14 fictitious persons, for sums aggregating $1,440, were received and receipted for by Bradley, and the payees' names indorsed thereon by him, and the warrants, thus indorsed, deposited by him to the credit of the private account of the plaintiff in error in said Chicago National Bank, and said warrants were collected by said bank of the county treasurer of Cook county, and plaintiff in error received credit for said amount in his private account in said bank. In another instance a slip with 10 fictitious names written thereon in the plaintiff in error's handwriting was introduced in evidence. These names went onto the monthly pay roll of the circuit clerk's office. Warrants were issued on such pay rolls by the comptroller in the names of said fictitious persons, and said warrants were receipted for by Bradley, and the payees' names indorsed thereon by him, and the amount thereof was collected by him from the county treasurer of Cook county, and deposited by him to the credit of the private account of the plaintiff in error in said Chicago National Bank. In many other instances the deposit slips filed by Bradley with the Chicago National Bank at the time he made deposits to the credit of the private account of the plaintiff in error in said bank showed that the plaintiff in error received credit in his private account in said bank for the precise amount received by Bradley upon warrants issued to fictitious persons named on the pay roll of the circuit clerk's office. After the cash received from the county treasurer was turned over by Bradley to the plaintiff in error, and after he had counted it, he would frequently add to it or retain a portion thereof, and then give the amount thus made up or thus remaining, with his private bank book, to Bradley, with directions to Bradley to deposit the amount thus paid to him to the private account of the plaintiff in error.

Numerous assignments of error, 42 in number, have been made upon this record, and numerous propositions have been elaborately discussed in the briefs filed by counsel for plaintiff in error in support of said assignments of error. The contentions thus made will be taken up in this opinion in their order and considered. It is first contended that the court erred (1) in declining to quash certain paragraphs of the original bill of particulars; (2) in permitting the state's attorney to file an additional bill of particulars; (3) in permitting the state's attorney to read the original bill of particulars and additional bill of particulars in his opening statement to the jury; and (4) in permitting the original bill of particulars and additional bill or particulars to be in the possession of the jury while they were considering their verdict.

The indictment contained two counts. The first was based upon the statute, and the second upon the common law, and each charged, in general terms, a conspiracy to cheat and defraud the county of Cook and to obtain its money by false pretenses. No specific overts acts were charged, and the original bill of particulars filed by the state's attorney upon the order of the court, at the request of the plaintiff in error, was a specification of the specific charges upon which the people would rely to sustain a conviction. In McDonald v. People, 126 Ill. 150, 18 N. E. 817,9 Am. St. Rep. 547, it was pointed out that the office of a bill of particulars is to give the accused, under a general conspiracy indictment like this, notice of the specific charge or charges he is required to meet on the trial, so that he might be prepared to make his defense. The original bill of particulars filed in this case pointed out to the defendant the specific charges which the people would seek to support by proof to show the guilt of the plaintiff in error upon the trial of said indictment, and the additional bill of partculars filed by the state's attorney by leave of court was only a further specification of the names of fictitious persons not stated in the original bill of particulars, which the people would seek to show the plaintiff in error and his co-conspirators had used as a means whereby to obtain the funds of Cook county. We think the original bill of particulars and the additional bill of particulars were in proper form, and that the court did not err in refusing to quash the original bill of particulars or any part thereof, or in permitting the additional bill of particulars to be filed.

We also think that the state's attorney had the same right to read in his opening statement said bills of particulars to the jury that he had to read to them the indictment, or to state to them the specific overt acts of the plaintiff in error and his co-conspirators which the people would rely upon to sustain a conviction, and that the court did not err in permitting the state's attorney to...