People v. Amore

• Decision Date: 05 October 1938
• Docket Number: No. 24607.,24607.
• Citation: 16 N.E.2d 720,369 Ill. 245
• Parties: PEOPLE v. AMORE et al.
• Court: Illinois Supreme Court

369 Ill. 245

16 N.E.2d 720

PEOPLE

v.AMORE et al.

No. 24607.

Supreme Court of Illinois.

June 20, 1938.

Rehearing Denied Oct. 5, 1938.

Error to Appellate Court, First District, on Error to Criminal Court, Cook County; Rudolph F. DeSort, Judge.

Clement Amore and others were convicted of conspiracy to violate the election laws. To review judgment of the appellate court, 293 Ill.App. 505, 13 N.E.2d 105, affirming conviction, defendants bring error.

Affirmed.Thomas Marshall, of Chicago, for plaintiffs in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Blair L. Varnes, all of Chicago, of counsel), for the People.

ORR, Justice.

Edni Sulli, Dorothy Berger, Rose Amore, Nancy Delmonico, Kate Paldo, Barney Siegel, John Zittello, Sanders Caravello and Clement Amore, were found guilty of conspiracy to violate the election laws by a jury in the criminal court of Cook county. Written motions for a new trial and in arrest of judgment were made and overruled. Clement Amore, Siegel, Caravello, Zittello and Berger were sentenced to serve a term of not less than one nor more than five years in the Illinois penitentiary; Sulli, Delmonico, Paldo and Rose Amore were each ordered to pay a fine of $200. Their conviction was sustained by the Appellate Court and the cause is hereby writ of error for review.

The indictment in this case charged defendants with conspiracy and concluded with the phrase ‘contrary to law.’ Because conspiracy to violate election laws was not a crime at common law, defendants claim the indictment should have concluded ‘contrary to statute’ and thus is fatally defective. Sections 45 and 46 of the Criminal Code (Ill.Rev.Stat.1937, chap. 38, §§ 138, 139) do not explicitly embrace conspiracy to violate the provisions of the Primary Election statute. But every conspiracy to do an unlawful act or to do a lawful act for an illegal, fraudulent, malicious or corrupt purpose or for a purpose which has a tendency to prejudice the public in general is, at common law, an indictable offense. Smith v. People, 25 Ill. 17, 76 Am.Dec. 780;Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 73 N.E. 770;People v. Curran, 286 Ill. 302, 121 N.E. 637. If an act is an offense both against the common law and the statute, the prosecutor may proceed under either. Chicago, Wilmington & Vermilion Coal Co. v. People, supra; People v. Curran, supra. The indictment is not vulnerable to the attack made upon it.

Certain instructions given by the court are claimed to be repugnant and contradictory to each other. In the written motion for a new trial, specific grounds of alleged errors were enumerated, but no complaint was made nor any error charged relative to any instruction, either given or refused. A written motion for new trial, assigning specific reasons in support of it, limits the party making it to the grounds therein urged. All other errors are deemed waived and will not be considered on review. People v. Hatcher, 334 Ill. 526, 166 N.E. 74;People v. Fox, 346 Ill. 374, 178 N.E. 907. A contrary holding would deprive the trial court of an opportunity to correct its own errors, if any. For the same reason, the complaint that the judgments were discriminatory,-i. e., the acquittal of one, fines for four and penitentiary sentences for the other five on the same testimony,-can not be considered by this court.

The jury fixed the punishment of Dorothy Berger at imprisonment in the penitentiary, while the court sentenced her to the State Reformatory for Women. She claims that the verdict and sentence do not agree and are, therefore, void as to her, and further, that the verdict fixing her punishment in the penitentiary is void and no judgment can be based upon a void verdict. The legislature has provided that ‘any female person hereafter convicted of any offense punishable by imprisonment in the penitentiary and sentenced to imprisonment shall be committed, by the court in which the conviction is had, to the State Reformatory for Women.’ Ill.Rev.Stat.1937, chap. 23, § 251; see, also, chap. 38, § 803. It seems clear from this provision that the term ‘State Reformatory for Women’ as used therein means a prison of the class or grade of a penitentiary. We said in People v. Gawlick, 350 Ill. 359, 183 N.E. 217, 219, ‘Since the enactment of the statute providing for the State Reformatory for Women, * * * any female person convicted of an offense punishable by imprisonment in the penitentiary is required to be committed to the State Reformatory for Women.’ The objection is without merit.

The principal claim of defendants is that there was no evidence of anything done by them pursuant to a mutual agreement, no proof that they acted with unity of design and purpose and no credible evidence of their guilt. Their conviction rests principally upon the testimony of witnesses, Haythorne and Hill, students of the University of Chicago. They were watchers at the election in question, and were employed and paid by a detective agency representing a civic organization. They both testified that when a voter called for a ballot and asked for assistance, Dorothy Berger or Rose Amore went to the booth, marked the ballot, brought it out and handed it to the voter who deposited it in the ballot box; that no other official ever went with Dorothy or Rose to the voting booth on these occasions and that, in many cases, the voter was not asked to and did not make the requisite affidavit. Both testified that Clement Amore, husband of Rose, voted twice, once early in the morning and again about midafternoon, and Hill said that, prior to his voting the second time, Amore whispered something to the clerks before getting his ballot. Both witnesses identified Zittello and stated he came to them late in the afternoon saying he had a certain number of votes to get through, that it was getting late and asked if he could rush a few through in a hurry, remarking that the board was afraid to do anything because of these witnesses,...