Maxwell v. People

• Citation: 41 N.E. 995,158 Ill. 248
• Parties: MAXWELL v. PEOPLE.
• Decision Date: 16 October 1895
• Court: Supreme Court of Illinois

158 Ill. 248

41 N.E. 995

MAXWELL

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 16, 1895.

Error to circuit court, Jackson county; Joseph P. Robarts, Judge.

Indictment of Thomas Maxwell for obtaining money by means of the confidence game. Defendant was convicted, and he brings error. Affirmed.J. F. Taylor, for plaintiff in error.

M. T. Moloney, Atty. Gen., and John M. Herbert, State's Atty. (T. J. Scofield and M. L. Newell, of counsel), for the People.

The first instruction given for the prosecution was as follows: ‘(1) If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Thomas Maxwell, by false representation and encouragement, induced the prosecuting witness, Simon P. Rudesill, to part with fifteen dollars of his money by a trick at cards, or any other device or trick, in manner and form as charged in the indictment, then the defendant is guilty as charged in the indictment, and you should find the defendant guilty.’

This is an indictment against plaintiff in error and one Anderson for obtaining money from one Simon P. Rudesill by means of the confidence game. The two counts of the indictment are as follows: ‘The grand jurors, chosen, selected, and sworn in and for the county of Jackson, in the name and by the authority of the peopel of the state of Illinois, upon their oaths present that Thomas Maxwell and William Anderson, late of the county of Jackson and state of Illinois, on the third day of November, in the year of our Lord one thousand eight hundred and ninety-three, at and within the county aforesaid, did then and there unlawfully, willfully, and feloniously obtain from one Simon P. Rudesill fifteen dollars of his money, of the value of fifteen dollars, by means and by use of the confidence game, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Illinois. And the grand jurors aforesaid, chosen, selected, and sworn in and for the county of Jackson aforesaid, in the name and by the authority of the people of the state aforesaid, upon their oaths aforesaid, do further present that the said Thomas Maxwell and William Anderson, late of the county of Jackson and state aforesaid, on the 3d day of November, in the year of our Lord one thousand eight hundred and ninety-three, at and within the county aforesaid, did then and there unlawfully and feloniously obtain from one Simon P. Rudesill three United States legal tender treasury notes for the payment of fifteen dollars, the personal property then and there of the said Simon P. Rudesill, by means and by use then and there of the confidence game, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the state of Illinois.’ Anderson pleaded guilty. Plaintiff in error pleaded not guilty. The only testimony introduced by the state was that of the prosecuting witness, Simon P. Rudesill. The accused introduced no evidence. At the close of Rudesill's testimony, the defendant demurred to the evidence, and moved to exclude it from the jury. The motion was overruled, and defendant excepted. Seven instructions were given on behalf of the people, and seven on behalf of the defendant. The jury returned a verdict of guilty, fixing the punishment at imprisonment in the penitentiary for five years, and finding the age of the defendant to be 26 years. Motions for new trial and in arrest of judgment were made and overruled, to which rulings exceptions were taken. Judgment was rendered and sentence pronounced in accordance with the verdict. The case is brought here by writ of error from that court.

The facts are substantially as follows: Rudesill, a farmer, 25 years old, while on his way, with his wife and child, from Cape Girardeau, Missouri, to Hamilton county, Illinois, was detained at Carbondale, Jackson county, waiting for a train to go north on the Illinois Central Railroad, on November 3, 1893. While he was walking on the platform of the depot, he was accosted by Maxwell, the plaintiff in error, who asked him if he was traveling, and was told that he was going north to Ashley, and from there to Dahlgren. Maxwell then asked him if he would throw some bills along the road for him,-bills for clothing and a lottery. He told Rudesill that he would pay him for his trouble, saying that he could take the bills, and, when the train stopped, distribute them on the platform. Rudesill agreed to do so, and Maxwell said he would go and get the bills, and be back soon. Rudesill then went back into the ladies' waiting room, where his wife and baby were. ‘Pretty soon Maxwell came back, and took me in a little closet, and showed me the secret. He had some cards, four or five or six, about three inches long, and about an inch and a half wide, blank on one side. One had writing on it, ‘500’ in figures, and below it was ‘Fifty cents.’ Maxwell said that was fifty cents a draw. ‘You draw one of the cards, and you get fifty cents' worth, or two dollars' worth, or two dollars and a half's worth.’ He showed me a card that had a ‘O’ on it, that began to spell ‘Clothing,’ and said: ‘Do you see that dot in the middle of the ‘C’?' I said I did, and he said that was the card to draw, and doubled them over in his hand. I took out the card, and it had the ‘C’ on it with a dot in it. Just then William Anderson came in, and Maxwell said something about his not being concerned in it. Anderson said he had a right to be there. Maxwell said: ‘Well, I can show it to him, too.’ And he showed him the cards, and told him to draw. Anderson drew, and missed it. Anderson said: ‘I will bet you twenty dollars you can't draw it.’ Maxwell said: ‘I will bet you thirty dollars; I have got a check here for thirty dollars, and I will bet you thirty dollars that I can.’ Anderson said he did not want any checks,-he wanted cash; and he went down in his pocket, and got the money. I said: ‘Mr. Maxwell, I can let you have it.’ And he said, ‘All right,’ and took the money, and put it up. Anderson took the cards, and handed them to Maxwell to draw. Maxwell said: ‘You can draw it.’ I thought all I had to do was to draw that card with a dot in the ‘C.’ I could see it plain, but, when I drew it, somehow I missed; I drew the wrong card. Maxwell said: ‘Now, you d_____ fool, see what you have done. Go back in the room, and sit there for thirty minutes, and I will go and get the money at the bank.’ He did not come back. He did not present the check to me. He reached in his pocket as though he was going to bring it out. I did not see any note, check, or anything of the kind. I told him I would let him have fifteen dollars; I let him have fifteen dollars, and he was to give it back to me. I do not mean to state that he offered me any sort of instrument for this money. Maxwell never offered me any bogus check or note, or bogus draft. It was just a trick with cards, with a dot in the ‘C.” Then Rudesill went out on the platform, and made some inquiries as to Maxwell. The police, who had suspicions of Maxwell, informed him that Maxwell and Anderson had just jumped on a freight train on the Illinois Central, and had gone south. Rudesill asked the policeman to telegraph south, and have them arrested, which was done. Anderson was the partner and confederate of Maxwell.

MAGRUDER, J. (after stating the facts).

1. Objection is made to the indictment upon the ground that it does not embrace in its averments every criminal fact that is material to the punishment sought to be inflicted. It is insisted, in other words, that the indictment should specify all the facts with such certainty that the offense may judicially appear to the court. We do not regard the indictment as bad, for the reason thus stated. Section 98 of division 1 of the Criminal Code, under which the indictment was found, 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.’ 1 Starr & C. St. p. 782, c. 38, par. 743. There are two statutory provisions which justify the framing of such an indictment under said section 98 as is set out in the record in this case. The first is section 6 of division 11 of the Criminal Code, which provides that ‘every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which stated the offense in the terms and language of the statute creatingthe offense, or so plainly that the...