People v. Smith

• Decision Date: 08 April 1909
• Citation: 239 Ill. 91,87 N.E. 885
• Parties: PEOPLE v. SMITH et al.
• Court: Illinois Supreme Court

239 Ill. 91

87 N.E. 885

PEOPLE

v.SMITH et al.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 8, 1909.

Error to Appellate Court, First District, on Writ of Error to Criminal Court, Cook County; M. W. Pinckney, Judge.

Abner Smith and others were convicted of conspiracy to obtain money and other property by false pretenses, and they bring error. Affirmed.A. N. Waterman and U. P. Smith, for plaintiff in error Abner Smith.

Stedman & Soelke, for plaintiff in error Gustave F. Sorrow.

W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Hobart P. Young, of counsel), for the People.

On April 27, 1906, the plaintiffs in error, Abner Smith and Gustave F. Sorrow, together with Jerome V. Pierce and Frank E. Creelman, were jointly indicted by the grand jury of Cook county for conspiracy to obtain money and other property by false pretenses. After a motion to quash the indictment had been overruled, a plea of not guilty was entered, and upon the trial Creelman was found not guilty and Smith, Sorrow, and Pierce were convicted. Smith and Sorrow were each sentenced to the penitentiary and to pay a fine of $1,000, and Pierce was fined $500, which he has paid. Smith and Sorrow sued out a writ of error from the Appellate Court for the First District, where the judgment of conviction was affirmed, and they have sued out a writ of error from this court to review the judgment of the Appellate Court.

The indictment contains nine counts, some of which charge a statutory and others a common-law conspiracy. The first count is a statutory count, and, omitting the formal part, is as follows: ‘That Abner Smith, Jerome V. Pierce, and Gustave F. Sorrow made application to the auditor of public accounts for permission to organize a bank under the provision of an act of the General Assembly of the state of Illinois approved June 16, 1887 (Laws 1887, p. 89); that on October 31, 1905, said auditor granted permission to organize a bank to be called the ‘Bank of America,’ with a capital stock of $250,000; that on the 1st day of December, 1905, said Smith, Sorrow, and one Frank E. Creelman and Jerome V. Pierce were engaged in promoting and organizing the bank; that said Abner Smith, Jerome V. Pierce, and Gustave F. Sorrow and said Frank E. Creelman applied to and solicited divers persons to become stockholders and to subscribe for stock at the rate of $200 per share, and represented to said persons that $100 of said subscription would go to make up a surplus fund; that on the 29th day of November, 1905, there were a large number of persons who had subscribed for the stock; that on the date last aforesaid said Abner Smith, Jerome V. Pierce, Gustave F. Sorrow, Frank E. Creelman, Lewis C. Muller, Daniel D. Healy, Ferdinand W. Peck, Frank Billings, L. E. Becker, William J. Murphy, John E. Kavanagh, Frank H. Savage, Robert H. Howe, Sidney F. Badger, and one Alexander Harris were elected directors of said bank; that on the same day Abner Smith was duly elected president, Gustave F. Sorrow was elected vice president, and Jerome V. Pierce was elected cashier of said bank; that on December 2, 1905, the auditor of public accounts of the state of Illinois issued a certificate charter privilege, franchise, and right to said Bank of America to conduct and carry on in the city of Chicago the business designated in section 1 of an act of the General Assembly of the state of Illinois aforesaid; that on the 4th day of December, 1905, said Abner Smith, Jerome V. Pierce, and Gustave F. Sorrow and Frank E. Creelman opened and caused to be opened said Bank of America and carried on a general banking business in Chicago; that said Abner Smith was then and there acting as president and director of said bank, the said Jerome V. Pierce was then and there acting as cashier and director; that the said Gustave F. Sorrow was then and there acting as vice president and director and said Frank E. Creelman was then and there acting as director of the said Bank of America; that there were a large number of stockholders, to wit, 200, and a large number of depositors, to wit, 1,500 depositors; that there were a large number of creditors, to wit, 200 creditors, and a large number of customers, to wit, 200 customers of said Bank of America; that a large number of said stockholders, depositors, creditors, and customers of said Bank of America were then and there ignorant and uninformed of the true condition of the affairs of said bank; that said Abner Smith, Jerome V. Pierce, Gustave F. Sorrow, and Frank E. Creelman, devising and fraudulently intending to acquire and get into their hands and possession the moneys, goods, and properties of the public by false, fraudulent, and dishonest means, on the 14th day of February, 1906, wrongfully, wickedly, fraudulently, feloniously, and unlawfully conspired, combined, confederated, and agreed together and with each other, and with divers other persons whose names are to the said grand jurors unknown, to get and obtain, knowingly and designedly and by false pretenses, the moneys, goods, and properties of the public, with the intention on the part of said Abner Smith, said Jerome V. Pierce, said Gustave F. Sorrow, and said Frank E. Creelman to cheat and defraud and injure the public, contrary to the statute and against the peace and dignity of the same people of the state of Illinois.'

The second count is substantially like the first, except it concludes, ‘contrary to the law,’ etc. The third count sets out the inducement the same as it is set forth in the first and second counts, and then charges: ‘That the said Abner Smith, while he was then and there president and director, said Jerome V. Pierce, while he was then and there cashier and director, Gustave F. Sorrow, while he was then and there vice president and director, and Frank E. Creelman, while he was then and there a director of said Bank of America, well knowing the premises in this count before mentioned and well knowing the bank and its affairs to be in a bad and dangerous condition and approaching insolvency, and that said bank was then insolvent, and that the stock and shares were unsafe and might be ruinous to the holders thereof, and well knowing that depositors in said bank might lose their deposits, and fraudulently devising and intending to acquire and get into their hands and possession the moneys, goods, and property of the stockholders, the depositors,creditors, and customers of said Bank of America, and such other persons who might believe certain false representations and pretenses hereinafter named to be true and become stockholders, depositors, creditors, and customers of the said Bank of America, by fraudulent and dishonest means, on the 14th day of February 1906, did wrongfully, wickedly, fraudulently, and deceitfully conspire, combine, confederate, and agree together and with each other, and with divers other persons whose names were unknown, etc., to get and obtain, knowingly and designedly and by false pretenses, the moneys, goods, chattels, and property of the stockholders, creditors, and customers of said bank, and of such other persons who might believe certain false representations and pretenses hereinafter named to be true and become stockholders, depostions, and creditors of said bank, by means of divers false pretenses and subtle means and devices in substance as follows; that is to say, to represent and pretend to said stockholders, creditors, and customers of said bank, and to such other persons who might believe said false representations and pretenses as hereinafter named to be true and become stockholders, depositors, creditors, and customers of said Bank of America, and to such other persons who might believe the said false representations and pretenses as hereinafter named to be true and become stockholders, depositors, creditors, and customers of said Bank of America, that said Bank of America was carrying on a profitable banking business, that its pecuniary affairs were in a sound and prosperous condition, that the capital stock in the sum of $250,000 of said Bank of America was then and there all fully paid in in cash, and that the said Bank of America then and there had a surplus of $250,000 all fully paid, and that the said Bank of America was then and there solvent, and that the said Bank of America then and there had total resources to the value and amount of $803,090.60, and that the said Bank of America then and there had a capital stock in the sum of $250,000, and that the said Bank of America had a capital and surplus in the sum and to the amount of $500,000, whereas, in truth and in fact, as they, the said Abner Smith, said Jerone V. Pierce, said Gustave F. Sorrow, and said Frank E. Creelman then and there well knew, the said Bank of America then was not carrying on a profitable banking business, that its pecuniary affairs were not then in a sound and prosperous condition, that the capital stock in the sum of $250,000 of the said Bank of America was not then all fully paid in cash, and that the said Bank of America did not then have a surplus of $250,000 all fully paid, and that said Bank of America was not then solvent, and that said Bank of America did not then have total resources to the value and amount of $803,090.60, and that the said Bank of America did not then have a capital stock in the sum of $250,000 and surplus in the sum of $250,000, and that the said Bank of America did not then have capital and surplus in the sum and to the amount of $500,000, to induce such stockholders, depositors, creditors, and customers of said Bank of America, and such other persons who might believe said false representations and pretenses to be true and become stockholders, depositors, creditors, and customers of said Bank of America as were ignorant of the true state of affairs of the said Bank of America, to purchase and hold the stock thereof, to deposit money therein, to become creditors thereof, and...