People v. Johnson
| Decision Date | 15 April 1936 |
| Docket Number | No. 23095.,23095. |
| Citation | 1 N.E.2d 386,363 Ill. 45 |
| Parties | PEOPLE v. JOHNSON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to First Branch, Appellate Court, First District, on Error to Criminal Court, Cook County; Donald S. McKinlay, Judge.
Al Johnson, Max Johnson, and Sam Levin were convicted of an offense, the judgment of conviction was affirmed by the Appellate Court (278 Ill.App. 204), and defendants bring error.
Reversed and remanded for a new trial.Thomas F. Donovan, of Joliet (Patrick B. Prescott, Jr., Henry O. Nickel, and Markman, Donovan & Sullivan, all of Chicago, of counsel), for plaintiffs in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, Henry E. Seyfarth, John T. Gallagher, John E. O'Hora, William J. Lancaster, and Richard H. Devine, all of Chicago, of counsel), for the People.
A grand jury in Cook county returned an indictment on October 3, 1930, against Al Johnson, Max Johnson, and Sam Levin. It contained one count, and charged them with conspiracy to defraud the state of Illinois out of a large sum of money. It was stricken with leave to reinstate, and was later reinstated and quashed. In March, 1933, the grand jury returned another indictment against said defendants and the Consumers Gas & Oil Company, a corporation. This indictment contained two counts, each of which alleged that the crime charged therein was the same crime charged in the original indictment.
Previous to the introduction of testimony, defendants filed a motion to quash the indictment, a plea of the statute of limitations, a plea in abatement, a plea of not guilty, and a motion to require the state's attorney to elect on which count of the indictment the people would rely for conviction. All motions and pleas except the plea of not guilty were denied or overruled. A jury trial resulted in a general verdict of guilty against the individual defendants, but no verdict whatever was returned as to the corporation. A judgment was entered on the verdict, which judgment was reviewed and affirmed by the Appellate Court for the First District, on writ of error sued out by Al Johnson and Max Johnson. A further writ of error has been sued out of this court.
The original indictment was based on Smith-Hurd Ann.St. c. 38, § 140; paragraph 117, c. 38, Ill.Rev.Stat.1935, p. 1165, which provides that, if two or more persons conspire either to commit any offense against the state of Illinois or against certain subdivisions thereof or to defraud the state of Illinois or any or said subdivisions in any manner or for any purpose, and one or more such parties do any act to effect the object of the conspiracy, all parties to such conspiracy shall be liable to a penalty of not less than $100 and not more than $5,000, and to be imprisoned in the penitentiary for a term not less than one year nor more than two years or imprisonment in the county jail for any period not exceeding two years. The penalty fixed in this case by the jury against plaintiffs in error was imprisonment in the penitentiary and a fine of $3,000 against each.
The original indictment charged that the defendants did willfully, maliciously, and unlawfully conspire, confederate, and agree to defraud the state of Illinois out of large sums of money. The means by which they effectuated the conspiracy to defraud the state were alleged to be as follows: The Consumers Gas & Oil Company was a corporation in which the individual defendants were officers and agents. The corporation was, from September, 1929, to September, 1930, a distributor of motor fuel as defined by the statute, and as such collected large sums of money as taxes on the sales of motor fuel. The said officers and agents, conspiring with the corporation to defraud the state, willfully made incorrect and false returns to the department of finance, and willfully failed and refused to make payment to said department of finance of the correct amount of money due the state. The second indictment contains apt references to the first indictment, and alleges that each count of the second indictment charges the same crime as was set forth in the original indictment. If the offense charged is in fact the same, a prosecution under both counts was not barred by the statute of...
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