People v. Brady

• Decision Date: 18 April 1916
• Docket Number: No. 9597.,9597.
• Citation: 112 N.E. 126,272 Ill. 401
• Parties: PEOPLE v. BRADY et al.
• Court: Illinois Supreme Court

272 Ill. 401

112 N.E. 126

PEOPLE

v.BRADY et al.

No. 9597.

Supreme Court of Illinois.

Feb. 16, 1916.

Rehearing Denied April 18, 1916.

Error to Circuit Court, Jasper County; J. C. McBride, Judge.

Ulie A. Brady and others were convicted of obtaining money and property by means of the confidence game, and they bring error. Affirmed.

Cartwright, Dunn, and Cooke, JJ., dissenting.Whitaker, Ward & Pugh, of Shelbyville, Andrews & Real, of Mattoon, and J. L. Walden, of Decatur, for plaintiffs in error.

P. J. Lucey, Atty. Gen., Charles D. Fithian, State's Atty., of Newton, and Eugene P. Morris, of Watseka (Francis E. Hinckley, of Chicago, of counsel), for the People.

FARMER, C. J.

The plaintiffs in error, Ulie A. Brady, Ernest Blanchard, George Meriwether, and Charles Wilson, were indicted in the circuit court of Jasper county for the confidence game. The first count charged that the defendants obtained from Douglas Flake his money and property by means of the confidence game; the second count charged them with obtaining from Douglas Flake his property by means of the confidence game; and the third count charged them with obtaining, by means and by use of the confidence game, property of Douglas Flake. The court overruled a motion to quash the indictment and the defendants were tried. At the trial there was no evidence that the defendants obtained any money, but there was testimony that they obtained from Douglas Flake a stock of goods. The jury returned a verdict finding them guilty, and the court, after overruling a motion for a new trial and a motion in arrest of judgment, sentenced them to confinement in the state penitentiary at Chester.

The first point raised by plaintiffs in error (hereafter called defendants) is that the indictment is not good and that their motion to quash it should have been sustained because the indictment does not describe the property alleged to have been obtained. Sections 98 and 99 of the Criminal Code, under which the indictment was returned by the grand jury, are as follows:

‘Sec. 98. 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.

‘Sec. 99. 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.’

[2] Those sections were adopted by the Legislature in 1867, and their construction came before this court in 1868, in the case of Morton v. People, 47 Ill. 468. In that case the first count charged defendant with obtaining $30 in money, and the second with obtaining a United States legal tender treasury note for $10, one bank note for the payment of $10, and two bank notes for the payment of $5 each, by means of the confidence game. Neither count described nor set out the acts by which the money was obtained, and it was urged the indictment was bad because it did not set out the elements constituting the crime, and that section 99 violated section 9 of article 13 of the Constitution of 1848, which is substantially the same in our present Constitution, and which gives the accused the right to demand the nature and cause of the accusation against him. The contentions of defendant as stated by the court were:

‘The accused cannot know, from this indictment, the exact charge against him, and the outer lines within which the evidence must be confined, and cannot know what evidence he will be required to meet; nor could a conviction under this indictment be pleadable in bar of another indictment for the same offense; nor can the court see in it that a legally defined crime has been committed. They insist that the term ‘confidence game’ has no definition ‘in law or literature,’ and that ‘no fifty men can be found who will define alike the confidence game.’ They further insist that the indictment should specify all the facts with such certainty that the offense may judicially appear to the court.'

In discussing these questions the court quoted what was then section 277 of the Criminal Code and in substantially the same language as what is now paragraph 408 of the Criminal Code (Hurd's Stat. 1913, p. 876) that every indictment shall be deemed sufficient which states the offense in the language of the statute creating it or so plainly that the nature of the offense may be easily understood by the jury, and the court held the indictment was for a statutory offense and was sufficient; that the offense was so set forth that the accused could be at no loss to know what he was charged with, so that he could prepare his defense; and that the conviction under the indictment could be pleaded in bar of another prosecution for the same offense. As to section 99 being in violation of the Constitution, the court said:

‘As to the constitutional objection, some of the cases referred to by the plaintiff in error may go to the extent claimed; but, as we have a very scrupulous regard for the acts of a coordinate department of the government whose exclusive duty it is to make laws, we cannot declare any enactment of that department null and void as being against the Constitution unless we are fully convinced of the violation. We are not so convinced and therefore must uphold the law.’

The construction placed upon paragraph 408 by the court in that case has been approved in many cases not involving the confidence game statute, but where said paragraph was involved, to sustain an indictment charging a statutory crime. Lyons v. People, 68 Ill. 271;McCutcheon v. People, 69 Ill. 601;Loehr v. People, 132 Ill. 504, 24 N. E. 68;West v. People, 137 Ill. 189, 27 N. E. 34,34 N. E. 254;Honselman v. People, 168 Ill. 172, 48 N. E. 304;Cochran v. People, 175 Ill. 28, 51 N. E. 845;White v. People, 179 Ill. 356, 53 N. E. 570;People v. Covitz, 262 Ill. 514, 104 N. E. 887.

[3] Upon the question of the sufficiency of an indictment in a confidence game case which did not set out the elements or acts constituting the crime, the Morton Case has been followed and expressly approved in Maxwell v. People, 158 Ill. 248, 41 N. E. 995;Graham v. People, 181 Ill. 477, 55 N. E. 179,47 L. R. A. 731;Du Bois v. People, 200 Ill. 157, 65 N. E. 658,93 Am. St. Rep. 183;Hughes v. People, 223 Ill. 417, 79 N. E. 137;People v. Weil, 243 Ill. 208, 90 N. E. 731,134 Am. St. Rep. 357; and People v. Clark, 256 Ill. 14, 99 N. E. 866, Ann. Cas. 1913E, 214. In all but one of those cases the defendants were charged with obtaining money. In one of them the charge was for obtaining a check. In some of the indictments or counts in those cases the money was not described nor the amount stated, but whether it was necessary, in an indictment for obtaining money by means of the confidence game, to describe the money or state the amount of it, does not appear to have been raised; or at least it was never directly passed upon until the decision in People v. Clark, supra. In that case the indictment charged the defendant with obtaining money by means of the confidence game, but contained no description of the money and did not state the amount. The defendant in this court contended that, if section 99 be held to authorize an indictment in the form therein prescribed, it violated defendant's constitutional right to demand the nature and cause of the accusation. The court followed and adhered to the Morton Case and subsequent cases as to the sufficiency of an indictment for the confidence game which did not set out the acts employed by defendant, but said in those cases the question whether the Legislature could declare an indictment sufficient which charged the obtaining of money, without words of description, by such criminal means as embezzlement, larceny, and confidence game, was not involved. It was held the offense created by section 98 was complete by obtaining, by means of the confidence game, money, without regard to the amount or description.

[4] The indictment here involved presents the question whether a charge in an indictment for obtaining property by means of the confidence game, without describing the property, is good. Section 98 creates and defines the crime of the ‘confidence game,’ which, in substance, is the obtaining or attempting to obtain from another 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.’ Section 6 of division 11, which is paragraph 408 of the Criminal Code in Hurd's Statutes, provides that every indictment shall be sufficient which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of it may be understood by the jury. Section 99 provides that an indictment for the confidence game shall be sufficient which charges the obtaining or attempting to obtain from a person named, his money, or property in case it be not money, by means and by use of the confidence game. Section 98 does not define the acts that may constitute the confidence game, and section 99 declares that an indictment for that crime shall be sufficient which charges the offense in the language of the statute creating it. When the first judgment of conviction under the confidence game statute was before this court for review, it was urged that section 99 deprived the accused of his constitutional right to demand the nature and cause of the accusation and was therefore invalid, and that an indictment which failed to set out the elements or acts constituting the...