People v. Bimbo

• Decision Date: 16 December 1924
• Docket Number: No. 16308.,16308.
• Citation: People v. Bimbo , 314 Ill. 449, 145 N.E. 651 (Ill. 1924)
• Parties: PEOPLE v. BIMBO.
• Court: Illinois Supreme Court

314 Ill. 449

145 N.E. 651

PEOPLE

v.BIMBO.

No. 16308.

Supreme Court of Illinois.

Dec. 16, 1924.

Error to Criminal Court, Cook County; Hosea W. Wells, Judge.

Tiny Bimbo was convicted of obtaining money by means of confidence game, and he brings error.

Reversed and remanded.Miles J. Devine and William G. Anderson, both of Chicago, for plaintiff in error.

Edward J Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and George C. Dixon, of Dixon (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

HEARD, J.

Plaintiff in error, Tiny Bimbo, was indicted, tried, convicted, and sentenced to the penitentiary in the criminal court of Cook county upon a charge of obtaining $2,250, the property of Amelia Marks, by means and use of the confidence game, and the record is before this court upon writ of error.

The indictment as originally returned into court contained three counts, the first for larceny as bailee, the second for obtaining money by means of the confidence game, and the third for larceny. A nolle prosequi was entered as to the first and third counts of the indictment, and the conviction had upon the second.

Plaintiff in error and the prosecuting witness, Amelia Marks, are gypsies, each of them with large family and tribal connections, many of whom appeared upon the trial as witnesses. By reason of the imperfect knowledge of the English language of many of the witnesses and their peculiarities of speech, much incompetent evidence on both sides was heard by the jury.

Evidence was introduced on behalf of the people which tended to show that plaintiff in error obtained the confidence of Amelia Marks by proposing and arranging with her for a gypsy marriage ceremony between the daughter of plaintiff in error and the son of Mrs. Marks, and by exhibiting to her $2,250 of his money and proposing to her that this sum, together with $2,250 of her money, should be placed in the bank in the names of the young couple to give them a start in life, and that he thereby obtained from her $2,250 ostensibly for such purpose, but that, in fact it was not the intention of plaintiff in error that such marriage should take place, and that such money should be so deposited, but that the whole matter was simply a swindling scheme on his part to secure for himself Mrs. Marks' money. There was also evidence introduced by the people which tended to show that the crime committed was robbery, and other evidence that the crime committed was larceny as bailee. On the other hand, each particular piece of incriminating evidence was denied by plaintiff in error and his witnesses, and evidence introduced on behalf of plaintiff in error tended to show that the prosecution in this case was a ‘frame-up’ on the part of the complaining witness and her witnesses to prevent the prosecution of the son of the complaining witness upon a charge of rape upon the daughter of plaintiff in error, which charge the evidence shows had been brought before complaint in this case had been made. Much evidence was introduced on both sides tending to prove the respective contentions, and it was a serious question of fact for the jury to determine from the evidence which side was telling the truth. Where there is a serious conflict in the evidence, as there is in this case, the record, to sustain a conviction, must show that substantial and prejudicial error has not been committed upon the trial.

[1][2] It is contended by plaintiff in error that the verdict of the jury was superinduced largely by the inflammatory remarks of the assistant state's attorney in his address to the jury. In his closing address to the jury the assistant state's attorney said:

‘It is said it takes a thief to catch a thief, and it can now be said it takes a framer and fixer to help a framer and fixer. I apply this to the worthy gentleman who has just spoken (meaning Miles J. Devine). I do not apply this to his colleague, who is a very likeable fellow but sometimes keeps very sorrowful company.

‘Mr. Devine: ‘I object to that remark, your honor; I object.

‘The Court: Yes, you have a right to object. There is no such evidence in this case.’

The assistant state's attorney also said:

‘I do say it looks funny when the boy takes the witness stand in the morning and testifies that he was the second son and that Steve was his older brother by one year, that he followed next, and that there was another child born who died at a very early age, and that Rosie came next; and next Tiny Bimbo comes and takes the stand and with the adroitness of his counsel, who knew all about framing and who did frame.

‘Mr. Devine: I object. Nobody is going to say that to me.

‘The Court: There is no evidence of that. There is no evidence he talked with Mr. Devine.

‘Mr. Romano: I say when we reconvened Bimbo takes the stand and accounts for Rosie's age.

‘Mr. Devine: I take an exception.

‘The Court: Your exception is well taken. You are entitled to an exception. The jury are instructed to disregard that statement.

‘Mr. Romano: That hits you a little bit, doesn't it?

‘Mr. Devine: I take exception to that remark. By your dirty, scurrilous remarks I will get a new trial, if there is a verdict.’

The assistant state's attorney also said:

‘This man (meaning Tiny Bimbo, plai...