People v. Clark

• Decision Date: 04 December 1912
• Citation: 256 Ill. 14,99 N.E. 866
• Parties: PEOPLE v. CLARK.
• Court: Illinois Supreme Court

256 Ill. 14

99 N.E. 866

PEOPLE

v.CLARK.

Supreme Court of Illinois.

Oct. 26, 1912.

Rehearing Denied Dec. 4, 1912.

Error to Circuit Court, Winnebago County; Arthur H. Frost, Judge.

George Clark was convicted of unlawfully obtaining money by confidence game, and he brings error. Affirmed.

David D. Madden, of Rockford, for plaintiff in error.

W. H. Stead, Atty. Gen., Harry B. North, State's Atty., of Chicago, and D. B. Snow, of Ottawa, for the People.

VICKERS, J.

The plaintiff in error was convicted in the circuit court of Winnebago county upon an indictment containing one count, charging ‘that George Clark, late of said county, on the fourteenth day of September, in the year of our Lord one thousand nine hundred and eleven, at and within the said county of Winnebago, did unlawfully and feloniously obtain from John Dembinsky his money by means and by use of the confidence game, contrary to the form of the statute in such case made and provided and against the peace and dignity of the same people of the state of Illinois.’ There is no bill of exceptions in the record. The record shows the arraignment and plea of not guilty, a trial by jury, and a verdict finding the plaintiff in error guilty of obtaining money by means of the confidence game, in manner and form as charged in the indictment. No motion to quash the indictment was made, but after verdict the record shows a motion in arrest of judgment, specifying particularly that the indictment was insufficient to sustain a judgment, was made and overruled, and the plaintiff in error was sentenced to confinement in the penitentiary for a term of not less than one nor more than ten years. This writ of error brings that judgment up for review, and the only error relied upon is the one assigned upon the overruling of the motion in arrest of judgment.

Section 98 of the Criminal Code (Hurd's Rev. St. 1911, c. 38) provides that ‘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.’ Section 99 of the Criminal Code provides as follows: ‘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.’ The indictment follows the language of the statute and is in the form prescribed in section 99. There is no attempt to describe the money alleged to have been obtained, by stating the kind, character, amount, or value thereof, nor is there any averment that a more definite and certain description was unknown to the grand jurors.

Plaintiff in error contends that, if section 99 of the Criminal Code be held to authorize an indictment in the form of this one, the statute is unconstitutional, in that it deprives the accused of the right ‘to demand the nature and cause of the accusation and to have a copy thereof,’ which is guaranteed to him by clause 9 of the Bill of Rights. Whether the objection urged to this indictment could be disposed of on the ground that the defect, if any, was cured by the verdict, has not been argued by counsel, and we will pass that question and consider the case as it has been presented.

The two sections of our statute relating to ‘confidence game’ were passed in their present form in 1867. In 1868 the case of Morton v. People, 47 Ill. 468, came before this court, in which the constitutionality of the statute was challenged because it authorized an indictment that did not ‘set out the elements constituting the offense.’ The objection there urged against the validity of the statute was not sustained. Defendant in error contends that that case and others which follow it are decisive of the question here presented. We do not so understand those cases. There were two counts in the indictment in the Morton Case, neither of which is like the indictment in the case at bar. The first count charged that the defendant obtained ‘from one Daniel Hughes $30 of his money by means and by use of the confidence game.’ The amount of money obtained was stated in this count. The second count charged that the defendant obtained ‘from Daniel Hughes one United States legal tender treasury note for the payment of $10 and of the value of $10 one bank note for the payment of $10 and of the value of $10, and two bank notes for the payment of $5 each and of the value of $5 each, the personal property then and there of the said Daniel Hughes, by means and by use then and there of the confidence game.’ etc. It will be seen that the money was partially described in the first and fully described in the second count. It will further appear from an examination of the opinion in the Morton Case that the only objection urged against the indictment was that it did not set out the acts performed or the means used which were relied upon as constituting the offense called ‘confidence game.’ In answer to this objection the court held that the nature and character of the so-called confidence game had become popularized in most of the cities and large towns and even in the rural districts, and is so well understood as to sufficiently advise the defendant of what he was called upon to defend, and it was further held that the devices by means of which the confidence game is practiced ‘are as various as the mind of man is suggestive, and it would be impossible for the Legislature to define them, and equally so to specify them in an indictment.’ It is perfectly apparent that what the court had in mind was the sufficiency of the indictment, which employed the words ‘confidence game’ instead of averring the facts constituting the elements of the offense. 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, and Du Bois v. People, 200 Ill. 157, 65 N. E. 658,93 Am. St. Rep. 183, which follow the Morton Case, the question here presented was not involved.

[1] As we understand the previous holdings of this court, the question is here squarely presented for the first time whether the Legislature has the constitutional power to declare that an indictment charging that the obtaining of ‘money,’ without any added words of description whatever, by criminal means, such as embezzlement, larceny, confidence game, and the like, shall be sufficient.

[2] The general rule undoubtedly is that in charging a statutory offense it is sufficient to charge the offense in the language of the statute or in terms substantially equivalent thereto. Ritter v. State, 111 Ind. 324, 12 N. E. 501;State v. Beach, 147 Ind. 74, 43 N. E. 949,46 N. E. 145,36 L. R. A. 179;People v. Schreiber, 250 Ill. 345, 95 N. E. 189. But this rule is subject to the qualification that the indictment must either, by the statutory description or by other apt averment, so identify the offense as to meet the requirements of the Constitution. West v. People, 137 Ill. 189, 27 N. E. 34,34 N. E. 254;Cochran v. People, 175 Ill. 28.

[3] Wh...