Graham v. People

Decision Date19 October 1899
Citation181 Ill. 477,55 N.E. 179
PartiesGRAHAM v. PEOPLE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to circuit court, Perry county; M. W. Schaefer, Judge.

John Graham, alias James Wheeler, alias John Snearly, was convicted of attempting to obtain money by a confidence game, and he brings error. Reversed.William S. Forrest and Benjamin C. Bachrach, for plaintiff in error.

Edward C. Akin, Atty. Gen. (C. A. Hill, B. D. Monroe, and C. R. Hawkins, of counsel), for the State.

At the May term, 1898, of the Perry county circuit court, the grand jury returned into open court an indictment against plaintiff in error containing two counts. The first count presents that John Graham, alias Jim Wheeler, late of the county of Perry, and state of Illinois, on the 7th day of November, in the year of our Lord 1896, at and in the county aforesaid, unlawfully and feloniously did attempt to obtain from John A. Bowlin his money by means and by use of the confidence game, contrary,’ etc. The second count presents that ‘the said John Graham, alias Jim Wheeler, alias James Wheeler, alias John Snearly, late of the county of Perry, and state aforesaid, in the year of our Lord 1896, at and in the county aforesaid, unlawfully and feloniously did attempt to obtain from John A. Bowlin $1,500.00 good and lawful money of the United States, and of the value of $1,500.00, the property of the said John A. Bowlin, by means and by the use of the confidence game, contrary,’ etc. A motion was made to quash the indictment for reasons stated in the opinion of the court. This motion was overruled, and exception was taken by plaintiff in error. Plaintiff in error entered a plea of not guilty, and was tried before a jury, who found him guilty as charged in the indictment, and found his age to be 41 years. Motions for new trial and in arrest of judgment were made, and overruled, and exceptions were taken. Judgment was entered upon the verdict, and the plaintiff in error was sentenced to the penitentiary, to be there confined until discharged by due process of law.

The material facts developed by the testimony are as follows: On November 5, 1896, a stranger approached John A. Bowlin on the streets of Duquoin, in Perry county, introducing himself to Bowlin as Jim Wheeler, and informing Bowlin that he had come to Duquoin to see the latter to learn if he was related to Andrew Bowlin. John A. Bowlin stated that he had no relative by that name. Wheeler, or the man calling himself Wheeler, then proceeded to tell John A. Bowlin that he had had a partner by the name of Andrew Bowlin; that said Andrew Bowlin had recently died at a town in Central Illinois; that he was looking for some one who could fill his place; that he (Wheeler), and said Andrew Bowlin, and a certain Indian, who was stated to be then in the woods near Cairo, Ill., owned a valuable gold mine in Arizona; that they had taken from said mine a large quantity of gold, and started to Washington, D. C., for the purpose of disposing of the gold at the government mint, and securing a patent or title from the government to the land, upon which the mine was located; but that, upon their arrival in Illinois, Andrew Bowlin sickened and died; and that he (Wheeler) and the Indian were both ignorant, and uneducated, and in need of some one to assist them in their enterprise. Wheeler then produced from his pockets specimens of ore, which he stated were gold of great value, and had been taken from his mine in Arizona; and that the Indian near Cairo had in his possession a large bulk of the gold in the form of two gold bricks or bars. Bowlin then invited Wheeler to take dinner with him at the residence of his daughter, Mrs. Fishback, living in Duquoin, where they both went. There, in the presence of Mrs. Fishback, Wheeler repeated his story of the gold mine in Arizona, the death of his partner, the presence of the Indian with the gold bars in the woods near Cairo, and again displayed the specimens of gold ore taken from the mine. Wheeler then and there offered to give Bowlin an interest in the mine and gold bricks upon such terms as the Indian would agree to, if Bowlin would go on to Washington with him, and attend to the business of securing the patent, etc. It was then arranged that Bowlin should go with Wheeler that night, to wit, the night of November 5, 1896, to Cairo. Accordingly, they left Duquoin at 8 o'clock in the evening, arrived in Cairo, and stayed all night at the Halliday House, Wheeler requesting Bowlin to register his name as Jim Wheeler, claiming that he (Wheeler) could not read or write. Bowlin did so. The next morning-November 6, 1896-Bowlin and Wheeler took a buggy, and went out on the Mississippi river in the woods above Cairo, and found the Indian with the bricks, which the latter produced. Wheeler produced an instrument with which they bored the bricks, and took the borings, whereupon Wheeler and Bowlin returned to Cairo. When they arrived at Cairo, they went to a jewelry store. Wheeler alighted from the buggy,-Bowlin holding the horse,-and went into the store. He returned with a card, which, as he claimed, had been handed to him by the jeweler, and he handed the card to Bowlin to read. The card bore the name of a man, stated to be a government assayer, at the Halliday House. Together they went there, and found the man, claiming to be an assayer, and he tested, or pretended to test, the borings from the bricks, and pronounced them pure gold. Bowlin and Wheeler then returned to Duquoin on the evening of November 6th, and went out to Bowlin's home in the country, and remained during the night. The next morning they returned to Duquoin together, and went to the First National Bank, where Bowlin drew from the bank $1,500. Bowlin and Wheeler then returned to Cairo, and Bowlin took the money with him to the woods in Alexander county, and there delivered the same to Wheeler in exchange for the bricks, Bowlin to have one-third interest in the bricks, which were valued at about $35,000, and one-third interest in the mine, for the $1,500 paid and his services to be rendered in getting title to the land on which the mine was located. Bowlin and Wheeler then returned to Cairo, where Wheeler left Bowlin, in order, as he said, to take the Indian as far as New Orleans on his return to Arizona. Wheeler was to join Bowlin at Bowlin's home in a few days. Upon his return to Duquoin, Bowlin became uneasy, and told certain parties of his transaction with Wheeler, and had his bricks examined, and learned that he had been deceived. Bowlin then saw nothing more of Wheeler until November, 1897, when he went to Keokuk, Iowa, to see a man who had been arrested, charged with a similar offense. Arriving at Keokuk, he found the plaintiff in error in jail under the name of John Graham. Bowlin identified him as the same man whom he had known as Jim Wheeler, and who had obtained his money, as above stated, in 1896, just one year before. The present writ of error is sued out for the purpose of reviewing the judgment so entered by the circuit court.

MAGRUDER, J. (after stating the facts).

This prosecution is based upon section 98 of the Criminal Code, which reads 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 an 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 indictment was framed under section 99 of the Criminal Code, which is as follows: ‘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 (or property, in case it be not money), by means and by use of the confidence game.’ The motions made by the plaintiff in error to quash the indictment and in arrest of judgment were based upon two grounds. In the first place, it is alleged that the indictment is insufficient, as not expressly stating all the acts constituting the offense with which the prisoner is charged, and as thereby failing to inform the prisoner of the nature and cause of the accusation against him. We are of the opinion, however, that the indictment is not invalid for the reason thus urged against it. This court has held in a number of cases that, where an indictment charges that money was obtained by means and by use of the confidence game, such indictment sufficiently describes the offense defined in section 98 of the Criminal Code, because of the express provisions of section 99, above quoted, and also because of the general provision contained in section 6 of division 11 of the Criminal Code. Said section 6 provides that ‘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.’ Said section 6 then gives a form for the commencement of an indictment. Section 98 of division 1 and section 6 of division 11 of the Criminal Code justify the framing of the indictment in the present case in the language in which it is above set forth. Morton v. People, 47 Ill. 468;Maxwell v. People, 158 Ill. 248, 41 N. E. 995;Loehr v. People, 132 Ill. 504, 24 N. E. 68;Seacord v. People, 121 Ill. 623, 13 N. E. 194;West v. People, 137 Ill. 189, 27 N. E. 34, and 34 N. E. 254;Coffin v. U. S., 156 U. S. 432, 15 Sup. Ct. 394.

The second ground upon which the indictment is claimed to be invalid is that said section 99 is unconstitutional. The constitutionality of this act was considered in Morton v. People, 47 Ill. 468, and it was there held...

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