People v. Emmel

• Decision Date: 21 April 1920
• Docket Number: No. 13157.,13157.
• Citation: 127 N.E. 53,292 Ill. 477
• Parties: PEOPLE v. EMMEL.
• Court: Illinois Supreme Court

292 Ill. 477

127 N.E. 53

PEOPLE

v.EMMEL.

No. 13157.

Supreme Court of Illinois.

April 21, 1920.

Error to Circuit Court, Fayette County; Thomas E. Ford, Judge.

Charles F. Emmel was convicted of obtaining property by means of the confidence game, and he brings error.

Reversed and remanded.J. G. Burnside, of Vandalia, and F. M. Guinn, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Will P. Welker, State's Atty., of Vandalia, and Floyd E. Britton, of Springfield (June C. Smith, of Centralia, of counsel), for the People.

DUNN, C. J.

Charles F. Emmel was found guilty in the circuit court of Fayette county in manner and form as charged in an indictment which charged him in three counts with obtaining from Lisetta Springer her money and property of the value of $5,000 by means of the confidence game. He was sentenced to an indeterminate term of imprisonment in the penitentiary, and has sued out a writ of error to reverse the judgment of conviction.

Lisetta Springer was a widow who had lived in Vandalia for 35 years. Her husband had conducted a bakery during his lifetime, and after his death she, with her three children, continued the business. She was possessed of considerable property, which for 30 years or more she was in the habit of investing in notes secured by real estate mortgages. Fred Emmel, the father of the plaintiff in error, had been engaged in the real estate and loan business in Vandalia for more than 30 years, and during that time had loaned and invested Mrs. Springer's funds for her and had practically the management and control of that part of her business, except that she kept the securities in her own possession at home. He collected the interest on her loans and the principal when it came due and made new loans. Whenever he wanted any of her securities he would go to her house for them or send a clerk or his son, the plaintiff in error, and she would deliver the papers. For many years before his death he made all the loans and took all of the mortgages in his real estate business in the name of the plaintiff in error. The plaintiff in error had no interest in the business, except that during a part of the time he was engaged in the abstract business and made the abstracts for his father's loans. He released mortgages upon the margin of the record upon his father's request, having only a formal connection with them, without any interest in or knowledge of them. Fred Emmel, the father, died on March 3, 1917. For about 2 years he had been confined nearly all the time to his house by sickness, visiting his office only occasionally, and the plaintiff in error had stayed in the office most of the time, transacting such business as was transacted there. He testified that he did not have absolute control of the business and had nothing to do with it except at his father's direction; that he transacted business that he was told to, and if there was any doubt about the matter he asked his father about it and did what his father told him to do. Augusta Humpler, the daughter of Mrs. Springer, who lived with her, after Fred Emmel became sick went to the office or to his house at various times to collect money for her mother. On January[292 Ill. 480]22, 1917, the plaintiff in error went to Mrs. Springer's house and obtained from Mrs. Humpler a number of notes, together with the mortgages securing them, amounting all together to over $5,000 giving her a typewritten receipt which he had already prepared and signed in his own name, in which it was stated that all back interest was to be collected and the loans replaced or other loans to be furnished by February 25, 1917. This is the transaction upon which the conviction is based. On January 30 plaintiff in error obtained a loan of $3,500 on a note signed by himself and his father, as collateral security, for which he delivered to the payee $3,525 in amount of the notes and mortgages which he had obtained a few days before from Mrs. Springer. The proceeds of the loan were applied to the payment of a note of the plaintiff in error and his father for $5,000, which plaintiff in error testified was his father's debt, though the plaintiff in error had received a part of the proceeds of the loan.

It is insisted that the evidence does not sustain the verdict. Augusta Humpler testified that the plaintiff in error, when he came with the receipt on January 22 to get the securities, told her that he wanted to get the mortgages on which the interest was due and which needed renewal and put them in the February term of court to foreclose and promised to return them by February 25. He had the receipt in typewriting already prepared and told her that he wanted those notes; that his father had sent him for them. Nothing was said in the conversation to persuade her to turn them over, but she did just as he asked her to do. He promised to return them and she had no doubt they would be returned. That had been the custom for years, to get the papers and return them, or others in their place, and it had been left to Fred Emmel, the father, as to the kind of mortgages he would give. Mrs. Springer was not present. She was in another room, and her daughter did not know whether she heard the conversation or not. Nothing was said to her. Mrs. Humpler got the mortgages, and she and the plaintiff in error sat down and counted the interest due on the notes and wrote it on the papers. She had a conversation with him over the telephone after February 25. He told her the matter had not been settled and it would take 10 or 15 days longer.

The plaintiff in error testified that after receiving certain directions from his father he made the typewritten receipt from a memorandum, except as to the Wall mortgage, the reference to which was written in afterward at Mrs. Springer's house, and went down to Mrs. Springer's and saw Mrs. Humpler. He told her he wanted the mortgages mentioned in the receipt; that he wanted to clean up matters; that the Crowder loan would very likely have to be foreclosed and he wanted to settle up the others. He said that his father told him how he expected to settle up these loans and that he was going to clean up his business with the Springers. He told Mrs. Humpler that he wanted to give the receipt on account of his father's condition and told her what his instructions were; that his father wanted to close up those papers, see that the interest was all paid and return them or some other papers, and the Crowder loan would probably have to be foreclosed. The plaintiff in error got the papers and left the receipt. He and Mrs. Humpler figured when the interest was paid to and what was due. His purpose was that she should have a detailed statement on account of his father's condition. He did not see Mrs. Springer at all, and never, either then or before, got any papers from Mrs. Springer. When he got the papers that day he delivered them to his father at his home the same day. His father gave him further instructions about those mortgages, and told him that his plans were that he intended to clean up the Springer business, and that he would make a settlement with her for those papers. Afterward he received instructions from his father, who directed him to take certain of those papers and raise some money to pay off a note. He mentioned the Goldsborough, Hooker, and Frailey papers, but did not remember whether the Hopkins paper was taken then or not. When the papers were given to the plaintiff in error he pledged them as collateral security to pay the $3,500 note, according to his father's directions. He signed the $5,000 note which was paid off, with his father, and the indebtedness it represented was his father's.

The plaintiff in error's version of the matter is that he was acting, not on his own initiative, but merely as the representative of his father and under the latter's direction, that he had no wrong intent, but that he supposed his father was about to make a settlement of his affairs with Mrs. Springer and would return the securities to her or substitute others for those used, as had been his custom in the management of her business for many years. It was a question of fact whether the transaction was in good faith what the plaintiff in error represented it to be—a taking of the securities by the plaintiff in error for his father and under his father's direction for the purpose of collecting the interest and renewing them—or whether it was a device of the plaintiff in error to get possession of the securities for the purpose of converting them to his own use. If, acting honestly under his father's direction, he merely procured the securities for his father to enable the latter to make a settlement of his business with Mr. Springer, there was no criminality in such action. If he falsely represented that this was his purpose, intending at the time to convert the securities and use the proceeds for his own benefit, a different question would be presented.

In this connection it is to be observed that there was no necessity for the plaintiff in error to make any representation in order to obtain the securities. He had only to go or send and ask for them and they would have been turned over to him without hesitation, as had been done before and has had been the custom of Mrs. Springer with his father for many years. Mrs. Humpler testified, in substance, that the plaintiff in error said nothing to persuade her to turn over the notes, but she did just as he asked her to and had no doubt that the papers would be returned as he promised, as had been the custom for many years. It is argued that the evidence shows no trick or device practiced or misrepresentation made to obtain the securities, but that they were delivered without question because of the confidence reposed in the plaintiff in error and his father on account of a long succession of fair dealing and honest transactions, and that the obtaining of money or property by reason of a belief...