People v. Gallo

• Court: Illinois Supreme Court
• Writing for the Court: SCHAEFER
• Citation: People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569 (Ill. 1973)
• Decision Date: 04 June 1973
• Docket Number: No. 43933,43933
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Sam GALLO, Appellant.

Page 569

297 N.E.2d 569

54 Ill.2d 343

The PEOPLE of the State of Illinois, Appellee, v. Sam GALLO, Appellant.

No. 43933.

Supreme Court of Illinois.

June 4, 1973.

Edward M. Genson, Frederick F. Cohn, and Arnette R. Hubbard, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane, James S. Veldman, and Terence J. Mahoney, Asst. State's Attys., of counsel), for the People.

SCHAEFER, Justice.

Following a bench trial in the circuit court of Cook County, the defendant, Sam Gallo, was found guilty of criminal usury (Ill.Rev.Stat.1967, ch. 38, par. 39--1) and intimidation (Ill.Rev.Stat.1967, ch. 38, par. 12--6) and sentenced to concurrent terms of imprisonment for not less than three nor more than five years. He appealed directly to this court.

The State's principal witness was Donald Doyle, a former truck driver for a Chicago newspaper. He testified that on October 5, 1968, he borrowed $300 from the defendant in order to put back money he had stolen from his route collections and to pay off other debts. The interest payments on this loan were to be $33 per week, none of which would reduce the principal amount. He further testified that in late November, 1968, after he had missed several weekly payments on the loan, the defendant telephoned him and said he would 'break my legs in three or four places unless I come up with some money.' Then, on December 1, 1968, the defendant told him that a $33 per day penalty had been imposed, so that he now owed $2,500, which could be paid off at a rate of $25 per week for 25 months. Doyle still made no payments and did not hear from the defendant again until February, 1969, when the defendant telephoned and said, 'You are killing yourself, and unless you come up with some money it will be out of my hands.' Doyle testified that after this phone call he reported the matter to the State's Attorney's office.

The State's Attorney's police then arranged a controlled payment of money to the defendant. On March 30, 1969, Detective Donald Masnjak, posing as Doyle's brother-in-law, accompanied Doyle to a meeting with the defendant and offered to pay Doyle's debt. According to both Doyle and Masnjak, the defendant stated that Doyle owed him $2500, but that he could make a deal for $1250. Two hundred dollars was then paid to the defendant and arrangements were made for payment of another $1050. On April 12, 1969, a second meeting between Doyle, Masnjak and the defendant took place, at which Masnjak gave the defendant $550 and promised to pay the remaining $500 the next week. Police officers acting in response to a prearranged signal from Masnjak, then arrested the defendant and seized the $550 in marked bills.

The defendant did not deny receiving any of the money from Masnjak. He testified, however, that as a favor to a mutual friend, Ralph Casale, he had originally loaned Doyle $1250, which was to be repaid at the rate of $25 per week, and that the $750 he received was in payment of that loan. He denied telling Doyle and Masnjak that Doyle owed him $2500, and he denied making any threats to Doyle over the telephone.

Ralph Casale testified that in August of 1968, Doyle told him that he needed almost $1000 to pay his debts and asked him to contact the defendant about a loan; that he contacted the defendant and told him that he would back up a loan to Doyle; and that in the middle of October, 1968, the defendant told him he had loaned Doyle $1250.

Ralph Bartuch, a fellow employee of Doyle, testified that in August of 1968, Doyle told him he needed about $800 to pay his debts. The defendant's brother-in-law, Peter Catizone, another of Doyle's fellow workers, testified that on December 1, 1968, he overheard Doyle tell the defendant that he could not get the $1250 he owed him. Evidence was also introduced to show that on September 30, 1968, the defendant's wife withdrew $900 from her savings account. The defendant testified that he used this money to make the loan to Doyle.

The court found the defendant guilty of both criminal usury and intimidation.

At the outset the defendant attacks the indictment upon the ground that the prosecution was barred by the statute of limitations, and that the indictment was substantively inadequate. The offense charged is a misdemeanor and the period of limitation is 18 months. (Ill.Rev.Stat.1967, ch. 38, par. 3--5) Three indictments were returned in this case, and the defendant went to trial on the third. The first indictment, No. 69--1774, was returned on May 29, 1969, and the second, No. 70--1330, was returned by the April 1970, grand jury. The third indictment, No. 70--7027, was returned on July 14, 1970. Each indictment alleged that the offenses occurred on March 30, 1969, April 12, 1969, and in late November of 1968.

Section 3--7(c) of the Criminal Code excludes from the statute of limitations any period in which a prosecution is pending against the defendant for the same conduct. To meet the requirements of this section the third indictment stated:

'Further, the Grand Jurors present that the period within which the prosecution of this count of the instant indictment must be commenced does not include the period between May 29, 1969, and the date of return of the instant indictment, in that:

'On May 29, 1969, an indictment to wit: Indictment Number 69--1774 was voted and returned by the May 1969 Grand Jury of the Circuit Court of Cook County, Illinois, against Sam Gallo; which said Indictment Number 69--1774 was a prosecution against Sam Gallo for the same conduct as was charged in Indictment Number 70--1330, which is a Reindictment of Indictment 69--1774. The Indictment Number 70--1330 was voted and returned by the April 1970 Grand Jury of the Circuit Court of Cook County, Illinois, against Sam Gallo; and which said Indictment Number 70--1330 remains in full force and effect and is now this day of return of the instant indictment, pending in the Circuit Court of Cook County, Illinois"

The defendant contends that this indictment is inadequate because it does not allege that the two previous indictments were for the same conduct. To establish such a requirement the defendant relies upon the following statement contained in People v. Isaacs (1967), 37 Ill.2d 205, 231, 226 N.E.2d 38, 52: 'The salient requirement is that it alleged the tolling of the Statute of Limitations on the basis of the pendency of prior proceedings against the same defendants for the same conduct.' This statement in the Isaacs case was dictum. There is no requirement that identity of the two indictments be alleged in the most recent one, and indeed such an allegation of identity would be a legal conclusion. 'The vital condition of identity of offenses charged in the two indictments can be established not only by a comparison of the indictments but by parol evidence.' People v. Hobbs (1935), 361 Ill. 469, 470, 198 N.E. 224.

The defendant further contends with respect to the count charging intimidation that the first two indictments failed to charge that the threat was made with the intent to cause the victim to perform an act. The defendant contends that because of this deficiency the first two indictments did not allege the same conduct as the third indictment and therefore the requirements of section 3--7(c) of the Criminal Code were not complied with. What the statute requires is that the pending prosecution which is relied upon to toll the statute of limitations must involve the same conduct that is charged in the indictment upon which the defendant is tried. This means the kind of identity which will suffice to inform the defendant of the circumstances of the offense with which he is charged in such a way as to permit him to prepare his defense. Whether the earlier indictments adequately charged an offense is not determinative. As the court stated in the Hobbs case: 'A prosecution under a second indictment after the limitation period had passed is not barred because a prior, though bad, indictment charging the same offense had been returned or filed within the period of limitation. (Swalley v. People, 116 Ill. 247, 4 N.E. 379; People v. Buckner, 281 Ill. 340, 117 N.E. 1023.) The Criminal Code does not require that the indictment quashed or set aside be a valid one in order to toll the running of the statute. (People v. Buckner, Supra.)' 361 Ill. at 469--470, 198 N.E. at 224.

The broadest of the defendant's attacks upon the substantive sufficiency of the indictment is the assertion that the usury statute is invalid because it is not uniform in its operation, constitutes special legislation in violation of section 22 of article IV of the Illinois Constitution of 1870, and therefore deprives him of due process of law.

Sections 39--1, 39--2 and 39--3 of the Criminal Code provide:

'39--1. Any person commits criminal usury when, in exchange for either a loan of money or other property or forebearance from the collection of such a loan, he knowingly contracts for or receives from an individual, directly or indirectly, interest, discount or other consideration at a rate greater than 20% Per annum either before or after the maturity of the loan.

39--2. A person convicted of criminal usury shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to five years, or both fined and imprisoned.

39--3. This Article does not apply to any person licensed under the Consumer Finance Act, approved July 10, 1935, and heretofore or herafter amended or the Consumer Installment Loan Act, approved August 30, 1963, as heretofore or hereafter amended, or to any loan permitted by Sections 4 and 4a of 'An Act to revise the law in relation to the rate of interest and to repeal certain acts therein named', approved May 24, 1879, as heretofore or hereafter amended, or by any...