Heaps v. Dunham

• Decision Date: 13 September 1880
• Citation: 1880 WL 10071,95 Ill. 583
• Parties: ISRAEL G. HEAPSv.CHARLES DUNHAM et al.
• Court: Illinois Supreme Court

95 Ill. 583

1880 WL 10071 (Ill.)

ISRAEL G. HEAPS

v.CHARLES DUNHAM et al.

Supreme Court of Illinois.

Filed at Ottawa May 18, 1880.Rehearing denied Sept. 13, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Henry County; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Mr. GEORGE W. SHAW, Mr. LEVI NORTH, and Mr. C. C. WILSON, for the appellant.

Mr. E. C. MODERWELL, Mr. M. SHALLENBERGER, and Mr. THOMAS E. MILCHRIST, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Israel G. Heaps, in the circuit court of Henry county, against Charles Dunham, Levi Waterman, O. L. Newell, William C. Smith, Rachael Smith, Lavina Snell and John Sittler, to enjoin the sale and collection of certain notes which had been given by the complainant to Levi Waterman in settlement of a prosecution instituted against the complainant by Lavina Snell before a justice of the peace for bastardy, and, as is alleged, in settlement of a threatened prosecution for seduction and rape. The bill also prays that certain moneys which had been paid under and by virtue of the settlement, be refunded.

It appears from the evidence introduced on the hearing that on the 17th day of April, 1876, Lavina Snell, an unmarried woman, made complaint in writing, under oath, before one O. W. Newell, a justice of the peace of Henry county, in which it was charged that she was pregnant with a child, and that Israel G. Heaps was the father. A warrant was issued by the justice, and on the 18th day of the same month Heaps was arrested and taken before the justice to answer the charge preferred against him.

It also appears that the prosecution was represented by Charles Dunham, a lawyer, who appeared before the justice, while the defendant appeared without counsel. The defendant, as appears, was not put upon trial, but the most of the day after he arrived before the justice was consumed in negotiations between him and Mr. Dunham in reference to a settlement. During this interview he was informed that unless a settlement was made he would be prosecuted for rape and seduction, in addition to the charge of bastardy then pending. A settlement was finally made, by which Heaps agreed to pay $1050, as follows: $250 cash, which was paid to Dunham a few days after the arrangement, $200 was to be paid in six months, $200 in twelve, $200 in eighteen, and $200 in twenty-four months, for which Heaps executed his four promissory notes secured by a chattel mortgage, the notes being payable to Levi Waterman.

The substance of the charge contained in the bill is, that the defendants, Lavina Snell, Rachael Smith, William C. Smith, O. W. Newell and Charles Dunham, entered into a conspiracy to falsely charge complainant with bastardy, rape and seduction, for the purpose of extorting money from him, and that while he was under arrest the notes were fraudulently obtained from him in settlement of the three offences of which he was charged, in consequence whereof the notes are without consideration and void.

We have given the evidence in this case a careful examination, and in our judgment it fails to establish a conspiracy on the part of the defendants to extort money. A conspiracy may be regarded a combination of two persons or more, by a concerted action, to accomplish a criminal or unlawful purpose, or a purpose not in itself criminal, by unlawful or criminal means. Smith v. The People, 25 Ill. 17.

Dunham was employed as an attorney by Wm. C. Smith, who was stepfather of the prosecuting witness, to institute proceedings against the complainant. He seems to have acted in good faith. Before commencing the prosecution for bastardy, he took the precaution, after he was employed, to call upon the prosecuting witness in person and learn from her the facts in the case, whose statements to him, if true, were a sufficient warrant for his action in the case, and, so far as appears, he had no reason whatever to doubt the truth of her statements to him.

In regard to the conduct of Newell, the justice,--he seems to have taken no part in the matter outside of his official duty, except that at the request of Smith, he wrote a letter to Dunham, and went with Smith to Dunham's office at the time he was employed. After complainant was arrested and brought to Newell's office, he took no part whatever in the negotiations which led to the settlement, but, on the other hand, he left the office and went into the country to visit a patient and did not return until about noon. After dinner he again went to the country and did not finally return until the settlement was consummated between Dunham and complainant.

In regard to Smith,--he employed Dunham to prosecute the case, and agreed upon the amount that should be paid him for his services, but he had no conversation or negotiation whatever with complainant, nor does it appear that he was to receive any part of the money complainant agreed to pay.

Rebecca Smith, the mother of the prosecuting witness, had no connection with the transaction, and, so far as is shown by the evidence, she was to receive no part of the money agreed to be paid in the settlement.

In regard to the prosecuting witness Lavina Snell,--she had no knowledge in regard to the amount that was to be paid or the terms and conditions of the settlement until after it was completed. It nowhere appears that she took any part in the negotiations which led to the settlement, but the whole matter was managed by her stepfather, Smith, and Mr. Dunham who was employed by him. There is, therefore, no sufficient evidence in the record from which the conclusion can be reached that the defendants conspired together to extort money from complainant. The complainant may have been innocent of the charge of bastardy, seduction or rape, and yet, if the prosecuting witness informed Smith and Dunham that he was guilty, and they honestly believed the truth of her statements, and under such circumstances instituted the prosecution for bastardy which led to the settlement, there would be no ground for holding that the defendants were actuated by fraud or had formed a conspiracy which had for its object the extortion of money from complainant. There is an entire absence of proof to establish a combination, by concent of action, to accomplish an unlawful purpose.

Nor will the facts and circumstances under which the notes were executed warrant the belief that complainant was under such duress as would avoid the contract made.

After the warrant was served on complainant, the constable made a return thereon and left the office of the justice. Complainant was in no manner restrained of his liberty. As a matter of fact, he was not prevented from going when or where he might choose. But if the complainant might be regarded as in the legal custody of the officer who arrested him, and thus technically imprisoned, as the arrest was lawful, having been made...