People v. Donaldson

• Decision Date: 21 June 1912
• Citation: 99 N.E. 62,255 Ill. 19
• Parties: PEOPLE v. DONALDSON.
• Court: Illinois Supreme Court

255 Ill. 19

99 N.E. 62

PEOPLE

v.DONALDSON.

Supreme Court of Illinois.

June 21, 1912.

Error to Circuit Court, Christian County; Robert B. Shirley, Judge.

Aaron Butler Donaldson was convicted of defrauding another by the confidence game, and he brings error. Affirmed.Hill & Bullington and W. B. McBride, for plaintiff in error.

W. H. Stead, Atty. Gen., Arthur Yockey, State's Atty., and Fred H. Hand (John E. Hogan and C. Orrick Bishop, of counsel), for the People.

VICKERS, J.

Aaron Butler Donaldson was tried and convicted in the circuit court of Christian county upon an indictment charging him with the confidence game. The indictment contains seven counts. At the close of the evidence for the prosecution a motion was made to instruct the jury to find that defendant not guilty as to each of the counts of the indictment. The motion was sustained as to the first, second, fourth, sixth, and seventh counts and overruled as to the third and fifth counts, and exceptions were duly preserved to the ruling.

Omitting formal parts, the third count of the indictment charged: ‘That Aaron Butler Donaldson, on, to wit, the 20th day of November, A. D. 1909, at and in the county aforesaid, did unlawfully and feloniously obtain divers goods and chattels, to wit, checks and drafts, and that a more particular description of which is to said grand jurors unknown, and that said checks and drafts were then and there of great value, to wit, of the value of $10,000, the personal property then and there of the said James H. Downs, by means and by use of the confidence game.’ The fifth count charged: ‘That Aaron Butler Donaldson, on the 20th day of November, A. D. 1909, at and within the county aforesaid, did then and there unlawfully and feloniously obtain from James H. Downs his property of the value of $10,000, the property of said James H. Downs, by means and by use of the confidence game.’

Before the trial was entered upon, plaintiff in error made successive motions for a change of venue on account of the prejudice of the inhabitants of the county of Christian, for a continuance, to quash the indictment and each count thereof, and for an order denying to C. Orrick Bishop and John E. Hogan the privilege of appearing as assistants to the state's attorney in the prosecution of plaintiff in error. These motions were overruled and exceptions duly preserved by plaintiff in error.

[1] Upon the hearing of the motion for a change of venue, both parties submitted affidavits upon the question of the prejudice of the inhabitants of the county. These affidavits are not preserved in the record, and the ruling of the court upon that motion is therefore, not saved for review. An application for a change of venue in a criminal case on account of the prejudice of the inhabitants of the county is addressed to the sound legal discretion of the trial court, subject, of course, to review in case it appears to have been abused. Price v. People, 131 Ill. 223, 23 N. E. 639. But in order to obtain a review of the action of the court in denying a change of venue it is necessary that the record and abstract should contain the evidence upon which the court acted.

[2] The motion for a continuance at the November term was based on the absence of C. E. Fryberger and Paul Fayne, both of whom were nonresidents of the state of Illinois. Neither of said witnesses had been served with a subpoena, and one of them was a resident of Missouri but temporarily absent in Arkansas. The other was formerly a resident of St. Louis, Mo., but had been gone for a year, and the affidavit stated that plaintiff in error had been unable to locate him, but had recently learned that he was in Denver, Colo. The indictment in this case was returned at the March term, 1911, and plaintiff in error was brought into court at that term and entered into a recognizance for his appearance at the August term. The case was continued at the March term, but it does not appear at whose instance a continuance was had. At the August term the case was continued, on motion of plaintiff in error, until the November term. The indictment had been pending from March until November. Plaintiff in error had had ample time to prepare for trial. The affidavit for a continuance states no facts from which it could reasonably be expected that these nonresident witnesses would voluntarily come to this state and testify in case a continuance was granted. The affidavit shows that the witness Fryberger knew of the prosecution against the plaintiff in error and that he had promised him to attend the court and testify in his behalf. Instead of doing so, the affidavit shows that he went on a hunting expedition to Arkansas. While plaintiff in error states in his affidavit that he expected to be able to have the two witnesses named in attendance upon the court at the next term, no facts are stated showing that there was a reasonable probability that those witnesses could be induced to voluntarily come into a foreign state to testify for plaintiff in error.

[3] An affidavit for a continuance on account of the absence of witnesses is properly denied, unless it is made to appear that there is a reasonable probability that the absent witnesses can be procured at the next term of court. The affidavit is defective, also, in respect to the diligence shown in trying to secure the attendance of the absent witnesses. The showing in this respect is merely that the affiant had made every effort possible to locate the witness Fayne and to procure the attendance of the witness Fryberger, but he fails to state any fact showing diligence and rests his application upon his conclusion that he has used such diligence as the law requires. The affidavit should have stated the facts showing what efforts had been made, so that the court might determine whether a proper degree of diligence had been exercised.

[4] There was no abuse in the discretion vested in the trial court in permitting counsel employed by private parties to assist in the prosecution. This was a matter in the sound discretion of the trial court, to be exercised with reference to the situation before the court, and a judgment of conviction will not be reversed unless it appears that the trial court has abused its discretion to the manifest prejudice of the defendant. In Hayner v. People, 213 Ill. 142, 72 N. E. 792, this court decided that it was not beyond the power of the court to permit counsel paid by private parties to assist the state's attorney, where there is no oppression of the defendant or injustice to him, and that rule was again approved in the late case of People v. Blevins, 251 Ill. 381, 96 N. E. 214.

[5] Plaintiff in error's most serious contention appears to be that the court erred in overruling his motion to quash the indictment. Some of the objections to the indictment only apply to certain counts. If either the third or fifth count is sufficient, we would not reverse the judgment because the court erred in refusing to quash some other defective count. A general verdict upon an indictment containing several counts, some of which are good and others faulty, will be referred to the good counts and sustained unless the contrary appears. If the jury disregarded the faulty counts and convicted the plaintiff in error upon sufficient evidence under a good count, no harm could have resulted from the failure of the court to quash such defective counts. Hiner v. People, 34 Ill. 297.

[6] The third count of the indictment is sufficient in form under previous holdings of this court. Maxwell v. People, 158 Ill. 248, 41 N. E. 995;Du Bois v. People, 200 Ill. 157, 65 N. E. 658,93 Am. St. Rep. 183;Cochran v. People, 175 Ill. 28, 51 N. E. 845.

[7]The most serious objection to the indictment urged by plaintiff in error applies to all of the counts, and is based on the admitted fact that the grand jury that returned the indictment was selected by the county board 19 days before the first day of the term of court, when the statute requires that it shall be the duty of the county court, at least 20 days before the sitting of the court, to select 23 persons possessing the qualifications specified in section 2 of the act relating to jurors (Hurd's Rev. St. 1911, c. 78), and, as near as may be, a proportionate number from each town or precinct, etc. So far as we are advised, this court has never decided the question raised by this objection to the indictment. In Marsh v. People, 226 Ill. 464, 80 N. E. 1006, the question was presented whether an indictment found by a grand jury that had not been selected at a regular or special meeting of the county board was a valid indictment, and it was held that it was not. This case is relied on with great confidence by plaintiff in error as sustaining the objection made to the indictment in this case; but that case is distinguishable from the one at bar in that in the Marsh Case the grand jury had been selected by the county board when it was not convened in regular or special session, and therefore had no power to select a grand jury. In the present case, the county board was regularly convened and had full power to exercise the functions of a county board, and the most that can be said against the validity of its act in selecting the grand jury is that the power was inrregularly or erroneously exercised. The holding in the Marsh Case is based on a total want of power in the county board to select a grand jury or do or perform any other official act. There a portion of the members of the county board came together, not in a regular or special meeting, but as individual members of the board, and assumed to perform the official work of the county board, which could only be performed when the board was in session. That case is not like the case at bar. There is some language of this court in the Marsh Case which, if not construed in connection with the matter then before the court, might lend some support to plaintiff in error's...