People v. Burley
| Decision Date | 22 October 1934 |
| Docket Number | No. 22517.,22517. |
| Citation | 357 Ill. 584,192 N.E. 689 |
| Parties | PEOPLE v. BURLEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Walter P. Steffen, Judge.
Bert Burley was convicted of obtaining money by means of the confidence game and by false pretenses, and he brings error.
Judgment reversed.John K. Murphy, of Chicago (Edward J. Kelley and Louis Greenberg, both of Chicago, of counsel), for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.
Bert Burley was indicted in the criminal court of Cook county for obtaining money from Merrill G. Gorton by means of the confidence game and by false pretenses. The defendant entered a plea of not guilty, waived a trial by jury, was found guilty of the former offense, and was sentenced to the penitentiary. He prosecutes this writ of error.
On August 31, 1933, Bert Burley, the plaintiff in error, accompanied by David Eyre called upon Merrill G. Gorton, the proprietor of a restaurant at 209 West Randolph street, in the city of Chicago. The plaintiff in error had in his possession seven American Express Company money orders or traveler's checks, three for twenty, and four for ten, dollars each. Eyre requested Gorton, who was his brother-in-law, to cash the orders. Gorton assented, but since he was occupied at a steam table, he directed Eyre to obtain the money from Mrs. Gorton who acted as cashier. No further conversation was held with Gorton; he did not examine the orders, and neither the plaintiff in error nor Eyre indorsed them. Mrs. Gorton gave the plaintiff in error $100 in money in exchange for the orders. Thereafter, Gorton transmitted them, without indorsement, to certain creditors. On September 7, 1933, the orders reached the American Express Company, and payment was refused because the countersignatures were not genuine. A special agent of the company interviewed the holders and ascertained that they had received the orders from Gorton. The latter was arrested and taken to the detective bureau. He communicated with Eyre who told the plaintiff in error that the money orders had involved Gorton in difficulty and apprehension by the police. The plaintiff in error promised to reimburse Gorton and made an appointment to meet Eyre at the corner of Washington and Wells streets, in Chicago, for that purpose. He kept the appointment and delivered $100 in money to Eyre. Immediately following the transfer of the money, the plaintiff in error was arrested. Eyre gave the money to Gorton at the restaurant.
Bert Harpster, a resident of Beatrice, Neb., identified four of the money orders as among those he purchased on July 18, 1933, before he departed for Chicago. While in that city six days later, he discovered that these orders were missing, and he reported his loss to the police department. He testified that his signature appeared in the upper left-hand corner of each order, but that the signature in the lower left-hand corner purporting to be his own was not genuine.
David Eyre, it appeared, became acquainted with the plaintiff in error in the summer of 1932. On August 31, 1933, the latter inquired of Eyre over the telephone whether he could cash express money orders aggregating $100. Eyre answered that he could not, but that Gorton, his brother-in-law, might be able to do so. Later he met the plaintiff in error by appointment at Gorton's restaurant, took him to a stean table where the proprietor was employed, and told him that the plaintiff in error was the man who had made the inquiry with respect to the money orders. Eyre stated on cross-examination that the plaintiff in error made no representations either to himself or to Gorton to obtain money on the orders.
Merrill G. Gorton testified that prior to the time the plaintiff in error and Eyre called at the restaurant on August 31, 1933, the latter had asked him whether he could cash some money orders for a friend; that he answered he could use them instead of money for the purpose of paying bills; and that he cashed them on Eyre's recommendation. On cross-examination Gorton stated that he had handled hundreds of money orders; that he did not indorse them upon negotiation since an indorsement was not required; that the plaintiff in error made no representation of any character when he obtained the money on the orders; and that he neither enlisted nor took advantage of the confidence of the witness.
The plaintiff in error is forty-two years of age and has been engaged in the drug business for twenty years. It appears from his testimony that on the afternoon of August 31, 1933, he stood in front of his store at Hyde Park boulevard and Lake Park avenue in Chicago to keep an appointment with Roscoe Burley, his brother; that Joe Martini, a real estate salesman, with whom he had been acquainted two years, approached; that in the conversation which ensued, the plaintiff in error remarked he was endeavoring to obtain money to remove his furniture from storage; that Martini offered to lend him $100 if he would repay the loan in two weeks; that the offer was accepted and Martini thereupon delivered to the plaintiff in error seven American Express Company money orders amounting to the sum stated; that the orders were signed and countersigned; that he did not affix his own or any other name to them; and that he was first informed that the countersignatures upon them were forged when Eyre called him by telephone on September 8, 1933. The plaintiff in error further testified that in the course of his business he had seen and cashed American Express Company money orders; that when he was acquainted with the persons presenting such orders he would often cash them without requiring countersignatures in his presence; that the orders Martini offered appeared to be properly signed and he did not request him to indorse them; that at the time he received the orders the banks of the vicinity had ceased to do business and the orders could not be cashed elsewhere in the neighborhood. The meeting of the plaintiff in error and another person in front of the drug store was corroboratedby Roscoe Burley, the brother of the plaintiff in error.
The sole contention urged is that the evidence does not sustain the judgment. Section 98 of the Criminal Code () declares that: ‘Every person who shall obtain or attempt to obtain from any other person or persons any money, property or credit by means or by use of any false or bogus check 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.’ The essence of the crime of obtaining money or property by means of the confidence game is a trust reposed in the swindler and betrayed by him as a means of obtaining the victim's money or property. The moving cause for the victim's parting with his money or property and giving it to the person accused must be the confidence reposed in the latter. People v. Sullivan, 349 Ill. 509, 182 N. E. 619;People v. Epstein, 338 Ill. 631, 170 N. E. 678;People v. Fosnacht, 334 Ill. 351, 166 N. E. 37;People v. Harrington, 310 Ill. 613, 142 N. E. 246;People v. Peers, 307 Ill. 539, 139 N. E. 13;People v. Rallo, 293 Ill. 304, 127 N. E. 715. Any scheme whereby a swindler wins the confidence of his victim and cheats him out of his money by taking advantage of the confidence reposed in him is a confidence game. People v. Dore, 339 Ill. 415, 171 N. E. 554;People v. Epstein, 338 Ill. 631, 170 N. E. 678;People v. Visconte, 326 Ill. 496, 158 N. E. 149;People v. Rosenbaum, 312 Ill. 330, 143 N. E. 859;People v. Harrington, 310 Ill. 613, 142 N. E. 246;People v. Singer, 288 Ill. 113, 123 N. E. 327;People v. DePew, 237 Ill. 574, 86 N. E. 1090;Juretich v. People, 223 Ill. 484, 79 N. E. 181;Maxwell v. People, 158 Ill. 248, 41 N. E. 995. The criminal character of such a scheme is not lost because it assumes the form of a lawful business transaction. People v. Dore, supra; People v. Harrington, supra; People...
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