People v. Clark

• Decision Date: 04 May 1979
• Docket Number: 77-446,Nos. 77-445,s. 77-445
• Citation: 27 Ill.Dec. 680,71 Ill.App.3d 381,389 N.E.2d 911
• Parties: , 27 Ill.Dec. 680 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James H. CLARK and Richard L. Curtis, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 911

389 N.E.2d 911

71 Ill.App.3d 381, 27 Ill.Dec. 680

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James H. CLARK and Richard L. Curtis, Defendants-Appellants.

Nos. 77-445, 77-446.

Appellate Court of Illinois, Second District.

May 4, 1979.

Rehearings Denied June 4, 1979.

George P. Lynch, Collins & Amos, George B. Collins and Richard T. Wimmer, Chicago, for defendants-appellants.

J. Michael Fitzsimmons, State's Atty., Wheaton, Phyllis J. Perko, Barbara A. Preiner, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

SEIDENFELD, Justice:

In this consolidated appeal we review the convictions of the defendant James H. Clark, formerly County Treasurer of DuPage County and Treasurer of several other public bodies in that county; and of the defendant Richard L. Curtis, formerly an official of the Michigan Avenue National Bank of Chicago. Following a jury trial Clark was convicted of multiple charges including the offenses of bribery (Ill.Rev.Stat.1975, ch. 38, par. 33-1), violation of the County Treasurer's Act (Ill.Rev.Stat.1975, ch. 36, par. 38), violation of the Corrupt Practices Act (Ill.Rev.Stat.1975, ch. 102, par. 3) and official misconduct (Ill.Rev.Stat.1975, ch. 38, par. 33-3(d)) and Curtis was convicted of various counts of bribery and violation of the County Treasurer's Act. (The court directed a verdict as to additional counts of the indictments charging both defendants with conspiracy). Each defendant was sentenced to twenty-four months probation with four to eight months of the period to be spent in a work release center and fined $10,000.

In substance, the indictments charged that on March 9, 1971, at the request of Clark, the DuPage County Forest Preserve District adopted a resolution designating the Michigan Avenue National Bank (Reference, MICHIGAN) as a depository of public funds for the District controlled by Clark as its treasurer; on or about March 11, 1971 Curtis then president of MICHIGAN arranged for a loan of $50,000 from the Drovers National Bank of Chicago (Reference, DROVERS) for Clark; on March 16, 1971 at the request of Clark the DuPage County Board of Supervisors designated MICHIGAN as a depository for county funds controlled by Clark as County Treasurer; on or about March 29, 1971 Clark opened a non-interest bearing demand deposit account on behalf of the Forest Preserve District at MICHIGAN with an initial deposit of 516, 790; on subsequent dates Clark deposited additional public funds in MICHIGAN demand accounts, with deposits at times being in excess of $3,500,000 and additional funds in certificates of deposit at times in excess of $8,000,000. The indictments further charged that during 1971 DROVERS made additional loans to Clark with a year end balance of $241,000, and that these loans were made through the good offices of Curtis in exchange for the use of MICHIGAN as a depository for DuPage County public funds. It was further charged that during 1972 Clark's loans from DROVERS increased to $439,000, in 1973 to $635,000, and in 1974 to $904,000; that the loans remained unpaid until July 10, 1975 when Clark filed a petition under Chapter XII of the Federal Bankruptcy Act; and that in 1976 DROVERS charged $693,000 of the loss to its bad debts reserve. The indictments further charged that Clark "knowingly accepted these loans for the performance of acts in his official capacity, such acts being the deposit of public funds under his control in the Michigan Avenue National Bank of Chicago."

Both defendants pleaded not guilty to all counts of the indictments. On July 6, 1976 Curtis moved for a severance. He also moved for a dismissal of the indictments on the ground that they did not state an offense against him, and moved for a change of venue on the ground that he could not receive a fair trial in DuPage County. On July 22, 1976 defendant Clark moved for a transfer of the trial from DuPage County to some other venue on the grounds of prejudicial pre-trial publicity. He also moved to dismiss the indictments. These motions were denied. On a later date defendant Clark also moved for a change of venue to Cook County alleging that none of the acts charged took place in DuPage County and that the inhabitants of that county were prejudiced against him. In addition, on Clark's motion several of the counts contained in the original indictments were severed. (We have deferred statement of the relevant evidence brought out in the trial of the case to the discussion of the various points raised by the defendants.)

Each defendant has claimed numerous errors as a basis for a reversal or for reversal and a remand for a new trial. The principal issues common to both appeals are first considered and include: (1) is the County Treasurer's Act unconstitutional; (2) should a severance have been granted; (3) was venue properly fixed in DuPage County; and (4) alternatively, should that question have gone to the jury?

Constitutionality of the County Treasurer's Act

We first conclude that the County Treasurer's Act (Ill.Rev.Stat.1975, ch. 36, par. 17 et seq.) is constitutional. The claim of unconstitutionality is essentially based on the claim of defendants that the Act arbitrarily applies criminal sanctions only to the proscribed conduct in counties of more than 150,000 inhabitants, that it is impermissibly vague in its terms, and that it contains no requirement of a specific state of mind or intent to constitute a violation which entails severe consequences.

A classification based on population calls for the application of the same principles that would be applied when reviewing the constitutionality of any other legislative action. Thus, in upholding a statute which applied criminal sanctions in connection with the registration of copper purchases but which did not apply in municipalities with populations of one million or more, the Illinois Supreme Court upheld the legislation against constitutional attack, stating:

" '* * * a legislative classification based upon population will be sustained where founded on a rational difference of situation or condition existing in the persons or objects upon which it rests and there is a reasonable basis for the classification in view of the objects and purposes to be accomplished. (Citations.)' * * *

Furthermore, we will presume that the legislature surveyed the conditions existing in the population centers of this State and pursued the various means available to the General Assembly not available to this court in informing itself of these conditions before enacting a classification based on population. This court will nullify such a classification only when it can be said that the same is 'clearly unreasonable or palpably arbitrary.' * * *

Another established principle applicable to this case holds that those who attack the validity of the classification have the burden of proving that the same is unreasonable or arbitrary. " People v. Palkes, 52 Ill.2d 472, 477, 288 N.E.2d 469, 472 (1972).

See, also, People v. Warfield, 26 Ill.App.3d 772, 774-75, 326 N.E.2d 211 (1975). Cf. People v. Fix, 44 Ill.App.3d 607, 3 Ill.Dec. 328, 358 N.E.2d 726 (1976).

The legislature may well have believed that the problem of county treasurers taking "fees, perquisites and emoluments" (Ill.Rev.Stat.1975, ch. 36, par. 36) in counties having populations exceeding 150,000 required special legislation. The incidence of county treasurers taking outside compensation may not have been perceived as being as great a problem in the smaller counties. The legislature may have concluded that existing bribery laws were sufficient to police the actions of county treasurers in such counties. (See, People v. Palkes, 52 Ill.2d at 478, 288 N.E.2d 469.) It should be remembered that the presumption is that a legislative classification is reasonable. (See, e. g., Salsburg v. State of Maryland, 346 U.S. 545, 553, 74 S.Ct. 280, 284, 98 L.Ed. 281, 289 (1954).) The defendants have not, in our view, overcome this presumption in this case. People v. Palkes, 52 Ill.2d at 476-77, 288 N.E.2d 469.

The further argument that the terms "fees, perquisites and emoluments * * * " required under the Act to be paid into the county treasury (Ill.Rev.Stat.1975, ch. 36, par. 36) do not adequately, without definition, inform the defendants of the proscribed conduct, is next considered. Defendants note in this connection that the foreman of the jury sent a note to the judge requesting a definition for the terms "perquisites and emoluments." However, the jury was sufficiently informed that it should apply "common English usage."

It is, of course, true that a criminal statute which seeks to punish an individual but fails to give him adequate notice of what conduct is prohibited would be an unconstitutional deprivation of due process. (People v. Dednam, 55 Ill.2d 565, 568, 304 N.E.2d 627 (1973).) However, the test is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. (People v. Dednam, id. at 569, 304 N.E.2d 627.) We conclude that the terms used pass this test.

The common dictionary definition of "perquisite" is "privilege, gain or profit incidental to an employment in addition to regular salary or wages"; and "emolument" is defined as a "profit or perquisites from office, employment, or labor"; a "fee" is a "perquisite" or an "allowance" (Webster's Third International Dictionary); and "emolument" has been judicially defined "by reference to any standard * * * that which is received as a compensation for services, or as a pecuniary consideration annexed to the possession of an office, as salary, fees and perquisites." (People v. Foster, 133 Ill. 496, 519, 23 N.E. 615, 620 (1890). See, also, County of Lake v. Westerfield, 196 Ill.App. 432, 439 (1915).) The terms are therefore not so obscure that they fail to give a person of ordinary intelligence fair notice of what kind of...