People v. Livermore

• Decision Date: 21 March 1945
• Docket Number: No. 27923.,27923.
• Citation: People v. Livermore, 390 Ill. 85, 60 N.E.2d 413 (Ill. 1945)
• Parties: PEOPLE v. LIVERMORE et al.
• Court: Illinois Supreme Court

390 Ill. 85

60 N.E.2d 413

PEOPLE

v.LIVERMORE et al.

No. 27923.

Supreme Court of Illinois.

March 21, 1945.

Error to Circuit Court, La Salle County; Robert E. Larkin, judge.

Harold E. Livermore, George Vasen, and others were convicted of obtaining property by means of the confidence game, and they bring error.

Reversed as to the defendant Vasen, and reversed and remanded as to the other defendants.

Myer Gladstone, of Chicago, and Dixon, Devine, Bracken & Dixon, of Dixon (John P. Devine and Robert L. Bracken, both of Dixon, of counsel), for plaintiffs in error.

George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for the People.

SMITH, Justice.

Plaintiffs in error, Harold E. Livermore, William S. Livermore, Arthur W. McElmuray, George Vasen and S. E. Stewart, were found guilty by a jury, in the circuit court of La Salle county, of the crime of the confidence game. Plaintiffs in error will be referred to in this opinion as defendants. They were sentenced, on the verdict of the jury, to the penitentiary, in accordance with the statute. They have brought the record to this court for review by writ of error.

The indictment consisted of two counts. It was returned on October 18, 1941. Both counts of the indictment charged that the defendants, on January 2, 1939, obtained from Fannie Barber, her money and property of the value of $12,000, by means and by use of the confidence game.

The defendants were engaged in the sale of ‘tung oil lands,’ in the State of Mississippi, at prices ranging from $150 to $300 per acre. When they would make a sale, they would then enter into a lease contract with the purchaser, under which they agreed to pay rentals at the rate of $18 per acre per year for the first two years, and $21 per acre per year for the second two years, following the date of the contract. They further agreed in these lease contracts to clear the land and plaint it to tung nut trees, and cultivate, fertilize, prune and care for the trees, until they reached the age of four years. The trees were supposed to come into bearing at five years of age. The rough land, before it was cleared, was purchased by the defendants at from $4 to $6 per acre.

The theory of the People is that the defendants entered into a conspiracy to defraud the public generally; that the lease contracts were entered into for the purpose of lulling the purchasers into a feeling of security until the Statute of Limitations had run as to any crime committed in the sale of the land; that the defendants would then go to the purchasers and by false representations and promises, which they had no intention of keeping, induce such purchasers to enter into a new contract by which they would waive the payment of rentals under the lease contracts, in consideration of the promise of the defendants to use the money, which would otherwise be paid as rentals under the lease contracts, for the construction of a tung oil extracting plant or mill. It is claimed that the defendants had no intention of erecting such plant or mill; that the promise to do so was fraudulently made for the purpose of obtaining a release of the rentals under the lease contracts and waivers of the rental after the statutory limitation had run against any offense connected with the original sale.

Otherwise stated, the theory of the People is that the plan contemplated the sale of the tung oil lands at enormous prices and upon false representations as to their value; that they would keep the purchasers satisfied by paying them a rental equal to six per cent on their investments for the first two years and seven per cent for the third and fourth years, and, thereafter, by false statements and representations, would ‘trade’ the purchasers out of their lease contracts. Upon this theory, the People contend that they had a right, in the trial of the cause, to prove such conspiracy, although no conspiracy was charged in the indictment. They further contend that they had a right to offer in evidence any acts of the defendants, or either of them, tending to show such conspiracy; that the transactions were criminal in their inception and culminated in the obtaining from Fannie Barber, the victim named in the indictment, her property, namely: her right to receive rentals under her lease contracts, by means and by use of the confidence game, in violation of the statute.

In support of this theory, the People called as a witness, one Ray Gladden. He was examined before any proof was offered tending to show the commission of the crime charged in the indictment against Fannie Barber. From his testimony it appears that prior to June 8, 1937, he was an inmate in the Iowa State Penitentiary; that he had been convicted many times, under various aliases, of forgery and other crimes. According to his testimony, he became acquainted with the defendant Vasen while Gladden was still in the penitentiary at Ft. Madison, Iowa. The record does not show whether Vasen himself was an inmate, or whether he merely visited Gladden at the penitentiary. He had some correspondence with Vasen before his release.

Gladden was released at midnight on June 8, 1937. According to prearrangement, he met the defendant Vasen within twenty minutes after he was discharged. Vasen accompanied him to Chicago. According to Gladden's testimony, Vasen outlined to him a plan of operations envisioning the sale of tung oil lands. The plan, as outlined by Vasen and as testified to by Gladden, was that the defendants would ingratiate themselves into the confidence of many people who were friends of each other, in La Salle and adjoining counties, with a view to selling them tung oil lands. The plan contemplated obtaining the confidence of numerous victims; that by obtaining the confidence of one victim, they would, through such victim, gain the confidence of other intended victims; that this confidence would be obtained by the representation that Vasen was unusually successful in realizing money on bad checks, defaulted bonds, worthless and depreciated stocks and bonds and other securities; that they would first approach the victims and offer to collect for them any bad or defaulted securities which they owned on the representations that Vasen was an adept in realizing money on such securities; that certain photographs of tung oil lands and tung oil groves would be shown to the victims, with the representation that they were selling them the particular land shown, whereas they would, in fact, be sold other and less desirable lands.

Gladden further testified that in order to place him in a position to assist in carrying out the contemplated scheme, Vasen assisted him in obtaining from the Department of Registration and Education of the State of Illinois, a real estate broker's license; that this license was obtained upon false certificates of good moral character, made by Dr. Murray, an osteopathic physician, practicing in Sandwich, Illinois, and Millage Sumers, the proprietor of a hotel in Somonauk, Illinois. Such license and certificates were offered in evidence. The certificates of good moral character, upon which the license was secured, signed by Sumers and Dr. Murray, were admittedly false. Gladden further testified that after the license was procured, he was employed by Vasen and, in the vicinities of Somonauk, Sandwich and other communities in La Salle and adjoining counties in the State of Illinois, engaged in the sale of tung oil lands. This proof was offered before any proof was introduced concerning the substantive offense charged in the indictment.

The People are correct in their contention that they had a right to prove a conspiracy to commit the offense charged, although no conspiracy was charged in the indictment. People v. Payne, 359 Ill. 246, 194 N.E. 539;People v. Levy, 351, Ill. 110, 184 N.E. 223;People v. Piech, 333 Ill. 293, 164 N.E. 692;People v. Looney, 324 Ill. 375, 155 N.E. 363. It was necessary, however, that the conspiracy sought to be shown culminated in the substantive offense charged in the indictment. That offense was the obtaining of money and property of Fannie Barber, by the confidence game, on January 2, 1939. It is conceded by the People that the property of Fannie Barber, which the defendants were charged with obtainingby the confidence game, was the contractual right to receive the rentals under the lease contracts. Of course, they were not limited in the proof to the particular date charged in the indictment. They were permitted to prove any date within three years prior to the return of the indictment, which was October 18, 1941. People v. Angelica, 358 Ill. 621, 193 N.E. 606.

Turning to the substantive offense charged in the indictment, it is undisputed that there were three transactions between the defendants, or some of them, and Fannie Barber. The first of the defendants to contact Fannie Barber was McElmuray. Fannie Barber was eighty-seven years of age at the time of the trial. It is shown that McElmuray and Vasen had become acquainted with Dr. Murray in the latter part of 1936. Vasen became acquainted with Dr. Murray by calling on him, ostensibly for professional treatments. They learned that Dr. Murray had some defaulted securities, which Vasen offered to collect for him. He was successful in making the collection, or at least he paid to Dr. Murray the money which he was supposed to have realized on the securities. For this service Vasen made no charge. He later sold some tung oil lands to Dr. Murray.

Vasen was introduced to a man by the name of Knight by Dr. Murray. He collected some defaulted securities for Knight, and later sold him some tung oil land. McElmuray and Vasen also contacted Fannie Barber through Dr. Murray. She was a patient of Dr. Murray. They learned from Mrs. Barber that she had some defaulted securities, which Vasen offered to collect for her. For the purpose of collecting such securities, Vasen took Fannie Barber to Chicago. They were...