People v. Nachowicz

• Court: Illinois Supreme Court
• Writing for the Court: DUNN
• Citation: People v. Nachowicz , 340 Ill. 480, 172 N.E. 812 (Ill. 1930)
• Decision Date: 14 October 1930
• Docket Number: No. 20140.,20140.
• Parties: PEOPLE v. NACHOWICZ.

340 Ill. 480

172 N.E. 812

PEOPLE

v.NACHOWICZ.

No. 20140.

Supreme Court of Illinois.

June 20, 1930.

Rehearing Denied Oct. 14, 1930.

Error to Criminal Court, Cook County; Harry B. Miller, Judge.

Frank Nachowicz was convicted of embezzlement, and he brings error.

Affirmed.Ziv, Loomis & Silvertrust, of Chicago (Fred S. Loomis, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the People.

DUNN, C. J.

Frank Nachowicz was convicted in the criminal court of Cook county of embezzlement, and has sued out a writ of error to review the judgment.

The indictment consisted of three counts; the second charging embezzlement, and a nolle was entered as to the first and third. It is contended that the judgment should be reversed because of a fatal variance between the evidence and the indictment, which charged an embezzlement of money, while the evidence shows that the property involved was checks. The abstract of the second count shows only, ‘Second count for embezzlement.’ This shows nothing in regard to the character of the property charged to have been embezzled, and therefore does not present the question of variance for decision.

The principal ground relied upon for reversal is the admission in evidence, over the defendant's objection, of his testimony given in the earlier trial in the same court of the case of People v. Michael Turbak. The following facts appearing in the evidence are necessary for the consideration of this objection:

It is contended by the prosecution that the alleged embezzlement was of the property of the Polish National Alliance,of which Michael J. Turbak was treasurer in 1927 and until about September 1, 1928. The plaintiff in error was assistant treasurer, and Ann Singer was cashier. The Polish National Alliance was a fraternal beneficiary society organized under the laws of this state, having at the time of the trial 290,000 members, and engaged in business in thirty-two states. Its daily business was from $5,000 to $40,000, of which from $1,000 to $5,000 was in the form of cash, which, until deposited in bank, was kept during the day in a drawer in the treasurer's desk and at night in the safe. Its funds for investment, amounting to about $15,000,000 or $16,000,000, were invested in real estate mortgages. Insurance was required on the buildings included in the mortgages and was placed with agents or brokers, who returned to the Alliance 10 per cent. of the premium as a rebate. Only three of the checks for rebates which were presented in evidence on the trial were actually credited to the Alliance on its books as a part of its assets, and these only in part. These three were drawn for Engelhard, Krogman & Co. by Herbert Krogman, a member of the firm, payable to Henry Krogman, his father. Under the rules of the Board of Underwriters, the payment of commissions to the Alliance was not permitted, and Engelhard, Krogman & Co. had procured a membership in the Board of Underwriters in the name of Henry Krogman in order to pay the commissions or rebates through him. The signature of Henry Krogman was indorsed on the checks, with his consent, by his son, Herbert, and the checks were sent to the plaintiff in error. Four checks drawn by Engelhard, Krogman & Co. were introduced in evidence as Exhibits 16, 17, 18 and 19. Exhibit 16, dated July 28, 1927, was for $753.70, and $703.70 only of its proceeds were credited as a part of the assets of the Alliance. Exhibit 17, dated June 26, 1928, was for $1,028.02, and $928.02, only, of its proceeds were credited as a part of the assets of the Alliance. Exhibit 18, dated September 19, [340 Ill. 484]1927, was for $649.97, and $549.97, only, of its proceeds were credited as a part of the assets of the Alliance. Exhibit 19, dated September 6, 1927, was for $692.20, and none of its proceeds were credited as a part of the assets of the Alliance. Other insurance was placed by the Alliance through the Great Lakes Insurance Company, which drew its check in payment of the rebate (Exhibit 20), dated August 25, 1927, for $169.50, payable to J. J. Berek, for the Alliance. Still other insurance was placed through the Strom-Carlson Company, which drew its check dated August 25, 1927, for $95.39, payable to the Alliance. In many cases where loans were made by the Alliance it required also title guaranty insurance, which it obtained from the Lake County Title & Guaranty Company, which refunded one-tenth of the premiums to the Alliance by thirteen checks, Exhibits 2A to 14A, inclusive, drawn in payment of such rebates for a total amount of $697.55. No part of the proceeds of any of the checks, except Exhibits 16, 17, and 18, was credited as a part of the assets of the Alliance. All these checks bore the indorsement of the Alliance made by a rubber stamp, which was accessible to and used at various times by Turbak, the treasurer, the plaintiff in error, his assistant, and by Ann Singer, the cashier. Turbak and the plaintiff in error were brothers-in-law. In the late summer or early fall of the year 1928, Paul Birk, the bookkeeper of Engelhard, Krogman & Co., at the request of the plaintiff in error, changed Exhibit 18 from $649.97 to $549.97 and Exhibit 17 from $1,028.02 to $928.02. This was after the checks had passed through the banks and had been returned to the maker.

Turbak, who had been indicted for the embezzlement of the same property here involved, was tried in June, 1929, and was found not guilty. In this trial the plaintiff in error testified as a witness for the defense. He did not testify on the trial of the present case, but the testimony which he gave in Turbak's trial was admitted in evidence against him, and the alleged error in its admission is the basis of a large part of the argument for reversal.

Judge Robert E. Gentzel, who presided at the trial of Turbak, and John P. Hampton and Clarence S. Piggott, assistant state's attorneys, who were engaged in the trial, were the witnesses who related the testimony given by the plaintiff in error on Turbak's trial. Judge Gentzel was first examined, and, after having stated that he presided at the trial and Nachowicz testified on behalf of the defendant, this question was put to him: ‘Can you tell the jury the substance of his testimony regarding the embezzlement or embezzlements of certain moneys from the Polish National Alliance?’ This was objected to ‘as no proper foundation having been laid for the introduction of this testimony.’ Without any ruling on the objection, another question was asked, ‘Do you recall the nature of the testimony of Frank Nachowicz during the time that he was a witness for the defendant, Michael Turbak?’ This was objected to ‘as being immaterial, incompetent and irrelevant as to the nature of what the testimony was.’ The objection was overruled, and, the witness having answered, ‘I do,’ was asked to state what the testimony was. Counsel for the defendant then stated: ‘No foundation as to what the testimony was—nothing shown on behalf of this witness as to just what the testimony was.’ The bill of exceptions stated that there was some discussion out of the hearing of the jury, but does not set out the discussion or what it was about, and the witness continued, saying that certain checks and exhibits were introduced in evidence for the state during Turbak's trial, and that Nachowicz testified with regard to them. To the question, ‘Can you give us the testimony of Nachowicz in that respect?’ the defendant's counsel said, ‘Same objection,’ and the court, ‘Overruled.’ The witness answered, ‘My recollection is that the embezzlement case tried before me turned upon two points,’ and the court sustained the objection because the answer was not responsive. The witness said: ‘The testimony of this defendant was to the effect—the only way that I could put it—that the money that was extracted by him from the treasury or from the cash drawer of the Polish National Alliance was a part of the commissions for insurance received by them and through the checks that were obtained from some abstract company, as I recall it, which checks he appropriated to his own use.’ After another question and answer, to which objection was sustained, the witness continued, as stated in the abstract: ‘He said that he took part of the moneys out of the cash drawer and converted them to his own use out of the funds that were received by the Polish National Alliance for insurance commissions. He said that Turbak had nothing to do with it; that he gave the figures to Turbak, who made the memorandum on a slip and gave the slip to the book-keeper to make entries on the book. Looking at State's exhibit 18 [after several questions] I recall his testimony, and the only recollectionthat I have is that there was a change of $100. It was reduced at the request of this defendant and then placed back, as I recall, to the original amount by the maker of the check or his auditor. The witness Nachowicz testified that he was a brother-in-law of Turbak.’ On cross-examination, Judge Gentzel testified that he recalled that the witness took the position that ‘he claimed that he had earned this money; that they were commissions coming to him and not to the P. N. A. business, excepting the $100 which I say he stated he took. Referring to the $100 taken out of the check for $1028, he said he took the $100 out of the cash drawer and that he made the entry on the book for $928, and said he claimed it.’ The witness did not recall Nachowicz's language, but thought that it was as commissions due him. After saying that he tried on the average one case a day and it was rather difficult to remember the testimony of all these cases, he was asked, ‘Do you remember, on the testimony of this witness, whether he made any objection to answering the questions on the ground...