People v. Gazelle

• Decision Date: 18 October 1921
• Docket Number: No. 13907.,13907.
• Citation: 132 N.E. 273,299 Ill. 58
• Parties: PEOPLE v. GAZELLE.
• Court: Illinois Supreme Court

299 Ill. 58

132 N.E. 273

PEOPLE

v.GAZELLE.

No. 13907.

Supreme Court of Illinois.

June 22, 1921.

Rehearing Denied Oct. 18, 1921.

Error to the Circuit Court, Sangamon County; E. S. Smith, Judge.

Abosamra Gazelle was convicted of perjury, and he brings error.

Judgment affirmed.

S. H. Cummins and Carey E. Barnes, both of Springfield, for plaintiff in error.

Edward J. Brundage, Atty. Gen., C. F. Mortimer, State's Atty., of Springfield, and Charles E. Selby (Edward Pree and H. E. Fullinwider, both of Springfield, of counsel), for the People.

CARTER, J.

This is a prosecution for perjury claimed to have been committed by plaintiff in error, Gazelle, in making a false and fictitious schedule of property when he offered to become surety on a bond for Glenn Olson and Irene Kaplan, who were under indictment for burglary and larceny in the circuit court of Sangamon county. Plaintiff in error was indicted for perjury in the circuit court of said county, and on a hearing in that court he was found guilty of perjury by a jury as charged in the indictment against him, and a judgment was entered in that court on the verdict. This writ of error has been sued out to review that record.

It is argued that the indictment should have been quashed on motion because it did not charge that the court had fixed the amount of the bail bond upon which plaintiff in error offered himself as surety, and also did not charge that the surety must be worth double the amount of the bond to be given, or that the presiding judge had examined the surety on oath touching his sufficiency to qualify on the bond. Section 7 of division 3 of the Criminal Code, as amended in 1917, makes an express and mandatory requirement that the bail shall be worth double the amount of bail expressed in the recognizance, over and above all exemptions and liens. Laws of 1917, p. 339. Section 8 of the same act provides for an examination under oath of the person offering himself as surety on bond, by the court, judge, or officer taking the bail, touching his sufficiency as bondsman, and may receive other evidence for or against the same in such manner as such court, judge, or officer may deem proper. The Legislature in 1917 passed an act also making it a criminal offense to make or suborn the making of false schedules under oath, or to testify falsely as to the qualifications of sureties on bail bonds and recognizances, and to provide a punishment therefor, providing, among other things, that any person, having taken a lawful oath or made affirmation, ‘shall swear or affirm willfully, corruptly and falsely as to the ownership or liens or incumbrances upon or the value of any real or personal property alleged to be owned by the person proposed as surety or bail,’ shall be deemed and adjudged guilty of perjury and punished accordingly. Laws of 1917, p. 215 (Hurd's Rev. St. 1917, c. 17a). Section 225 of the Criminal Code provides:

‘Every person, having taken a lawful oath or made affirmation, in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, who shall swear or affirm willfully, corruptly and falsely, in a matter material to the issue or point in question, * * * shall be deemed guilty of perjury, * * * and shall be imprisoned in the penitentiary not less than one year nor more than fourteen years.’ Hurd's Stat. 1917, p. 1000.

Section 1 of division 12 of the Criminal Code provides that, when an indictment is found as a true bill, ‘if the offense is bailable, the court shall make an order fixing the amount of bail to be required of the accused.’ Hurd's Stat. 1917, p. 1029. Under this last provision of the Criminal Code, when the indictment for burglary and larceny was returned against Olson and Kaplan in the circuit court of Sangamon county it became the duty of the court in that county to make an order, under section 1 of division 12, fixing the amount of the bail to be required of the accused, and no offer by any one to become bail or surety on the Olson and Kaplan indictment for burglary and larceny could be made and accepted in such proceedings until such order fixing bail had been entered by the court; such order being part of the judicial proceedings under the burglary and larceny indictment.

The indictment in this cause alleged, among other things, that on September 10, 1920, Abosamra Gazelle, alias Abosamva Gazelle, in a criminal prosecution then and there pending in the circuit court of Sangamon county, ‘wherein the people of the state of Illinois were plaintiffs and one Harry Gilbert, one Glenn Olson, one Fay Olson, one Samuel Kaplan, one Irene Kaplan, and one Dave Miller were defendants, on the charge of burglary and larceny and receiving stolen property, the said court and the said judge then and there having jurisdiction in the said judicial proceeding and of the parties thereto, he, the said Abosamra Gazelle, then and there offered himself as bail and surety for the said Glenn Olson and Irene Kaplan in the said judicial proceedings aforesaid; that thereupon the said Abosamra Gazelle was then and there duly sworn by one Herman Goering, deputy clerk of said circuit court, duly appointed, qualified, and commissioned, the said Herman Goering, deputy clerk aforesaid, having power and authority to administer the oath to the said Abosamra Gazelle touching his (the said Abosamra Gazelle's) qualifications and financial ability to become such bail and surety as aforesaid; that it became and was material to the said point in question to inquire whether the said Abosamra Gazelle was then and there possessed of property in the sum of $12,000 free from all liens, claims, and incumbrances; and that thereupon, the said Abosamra Gazelle being then and there duly sworn as aforesaid by the said Herman Goering, said deputy clerk of the said court as aforesaid, and the said Abosamra Gazelle then and there having taken a lawful oath in the said judicial proceeding aforesaid, touching his (the said Abosamra Gazelle's) qualifications and financial ability to become such bail and surety aforesaid in the said judicial proceeding aforesaid, where an oath or affirmation was by law required, did then and there make a written statement under oath of his (the said Abosamara Gazelle's) circumstances and property, the same being material to the said point in question, and did then and there feloniously, willfully, corruptly, and falsely depose, swear, and testify in substance, among other things, that he was then and there the owner of the following described real estate located in the county of Vermilion, Ill.,’ thereafter describing the property-among other pieces, ‘lot 12 and 20 feet off of the north side of lot 11, in Morgan's addition to the city of Danville, of the value of $6,000,’ etc.

Counsel for plaintiff in error argue that the indictment is defective, for the reason that it does not allege that at the time Gazelle offered himself for bail there was any amount of bail fixed by the court. The first allegation in the indictment above quoted alleges that Gazelle offered himself for bail to the court for Glenn Olson and Irene Kaplan in a certain judicial proceeding, to wit, a criminal prosecution then and there pending in the circuit court of said county, wherein the people of the state of Illinois were plaintiff, and Harry Gilbert and others, including Olson and Kaplan, were defendants, on the charge of burglary and larceny and receiving stolen property; the said court and the said judge then and there having jurisdiction in the judicial proceeding and of the parties thereto. In People v. Ashbrook, 276 Ill. 382, at page 385, 114 N. E. 922, the court said:

‘The purpose of describing in the indictment the proceeding in which the perjury was committed is to show that it was a judicial proceeding of which the court had jurisdiction and that the false testimony was material. A general description of the proceeding is sufficient and it need not be set out in detail.’

The indictment here in question would seem to comply with the...