Thomas v. People of State

• Decision Date: 15 May 1885
• Citation: 113 Ill. 531
• Parties: EDWARD F. THOMASv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

113 Ill. 531

EDWARD F. THOMAS

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa May 15, 1885.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

This was an indictment found at the March term, 1884, of the Criminal Court of Cook county, against Edward F. Thomas and William G. Murphy, the first count of which is as follows:

“The grand jurors chosen, selected and sworn in and for the county of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present, that Edward F. Thomas and William G. Murphy, late of the county of Cook, on the first day of December, in the year of our Lord one thousand eight hundred and eighty-three, in said county of Cook, in the State of Illinois aforesaid, feloniously, fraudulently and deceitfully did conspire and agree together, with the fraudulent and malicious intent then and there, feloniously, wrongfully and wickedly, to obtain one horse, of the value of $75, one wagon, of the value of $25, twenty-five dozen canned goods, of the value of $50, one hundred boxes of soap, of the value of $25, one hundred pounds of soap, of the value of $25, one hundred bars of soap, of the value of $25, one hundred packages of bluing, of the value of $10, one hundred pounds of teas, of the value of $25, three hundred pounds of sugars, of the value of $30, and divers and sundry groceries, dry goods, notions and fixtures contained in her grocery store, situated on Clark street, in the city of Chicago, in said county and State, (a more particular description of which said groceries, dry goods, notions and fixtures is to said grand jurors unknown,) of the value of $580, the personal goods and property of one Kate Carberry, from the said Kate Carberry, by false pretences, and to cheat and defraud her, the said Kate Carberry, of the same, contrary to the statute, and against the peace and dignity of the same People of the State of Illinois.”

Mr. C. F. REMICK, for the plaintiff in error:

The first count charges an unexecuted conspiracy to obtain goods by “false pretences.” The pretences, the objective point of the conspiracy, the gravamen, are not stated, and hence no venue or scienter thereof is stated. Wharton on Crimes, secs. 2127, 2159.

The second count attempts to charge the same conspiracy. The third omits any charge of conspiracy.

The motion to quash should have been sustained, as also the motion in arrest of judgment. Representations, though false, are not within the statute unless calculated to deceive persons of ordinary prudence and discretion. 2 Wharton on Crim. Law, secs. 2129, 2131; Commonwealth v. Haughey, 3 Metc. 224.

In Commonwealth v. Grady, 13 Bush, 285, the court say: “By a visit to the clerk's office he could soon have ascertained whether appellee had the unincumbered title to the house and lot, as represented.” Hale v. DeHart, 6 Bax. (Tenn.) 222; 19 Mo. 233; 50 Ind. 477; 76 N. C. 258.

One not examining records must suffer the consequences of his own negligence. Babcock v. Lisk, 57 Ill. 329; Monts v. Hogle, 37 Id. 155; People v. Jacobs, 35 Mich. 36.

It is a well recognized doctrine that counts for misdemeanor and felony can not be joined in the same indictment. Lyons v. People, 68 Ill. 271.

The first and second counts are attempts under section 46 of the Criminal Code, while the third is under section 96. It is certain that the offence in the third count is simply a misdemeanor, and not a felony. Crim. Code, secs. 277, 278.

Mr. JULIUS S. GRINNELL, State's Attorney, and Mr. JOHN GIBBONS, for the People:

As to the law bearing upon the evidence to show a conspiracy, see 3 Greenleaf on Evidence, sec. 93; Wharton on Crim. Law, sec. 1398; Commonwealth v. McClean, 2 Pars. 363; State v. Stroting, 34 Iowa, 443; Cowen v. People, 14 Ill. 348.

Courts will not sustain a motion to quash an indictment containing several counts, if either count is sufficient to sustain a conviction.

As to compelling an election as to which count the prosecutor will proceed under, see Goodhue v. People, 94 Ill. 51.

Counts for felony and misdemeanor may, under some circumstances, be properly joined. 1 Bishop on Crim. Proc. sec. 199.

When several counts are employed to meet the evidence as it may transpire on the trial, all the counts being for the same offence, it is always allowed. Commonwealth v. McLaughlin, 12 Cush. 612; State v. Sutton, 4 Gill, 494; Burke v. State, 2 Har. & J. 426; State v. Posey, 7 Rich. 484.

Conspiracy is a misdemeanor, even in those cases where its object is the commission of a felony. 2 Bishop on Crim. Law, 231.

The extent of the punishment for misdemeanor does not make it a felony, provided the imprisonment is for a stated number of years, not for life. State v. Danforth, 3 Conn. 112; State v. Murphy, 6 Ala. 765; State v. Noyes, 25 Vt. 415; Regina v. Button, 11 Q. B. 929; People v. Mather, 4 Wend. 229; Respublicæ v. Delongchamps, 1 Dall. 111.

Mrs. Carberry was not bound to examine the record. The gravamen in this case is the unlawful combination. Parties have the right and are justified in relying upon statements made to them in the ordinary business transactions of life. They are not bound to assume that every man is a cheat, a swindler, a liar and a fraud.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

Edward F. Thomas and William G. Murphy were convicted, in the Criminal Court of Cook county, of a conspiracy to obtain goods by false pretences from one Kate Carberry, by the verdict of a jury, and, thereby, punishment of the former was fixed at confinement in the penitentiary for the term of three years, and that of the latter at paying a fine of $300. The court overruled a motion for a new trial, and gave judgment upon this verdict. This writ of error is prosecuted by Thomas alone.

Several grounds are urged upon which we are asked to reverse this judgment, and such of them as we deem material shall be briefly considered.

First--It is contended the court erred in overruling the motion to quash the indictment. Since the motion was general to the entire indictment, it was properly overruled if either count was good; and since the verdict expressly finds the defendants guilty of a conspiracy to obtain goods by false pretences, saying nothing as to the third count, which is for obtaining goods by false pretences, simply, this is equivalent to a finding of not guilty under that count. ( Stoltz v. People, 4 Scam. 169; Chambers v. People, Id. 356.) And, therefore, if either of the counts for conspiracy be good, it will sustain the verdict. ( Lyons v. People, 68 Ill. 276, and cases cited.) The first count, under the ruling in this State, whatever may be decided elsewhere, is clearly good. To obtain goods by false pretences is, to every apprehension, an illegal act; and the rule here is, where the act to be accomplished by the conspiracy is illegal, it is unnecessary to specify the means by which it was intended to be accomplished. ( Johnson v. People, 22 Ill. 314; Smith v. People, 25 Id. 17; Cowen v. People, 14 Id. 348.) The first count in the present indictment is, in substance, identical with the count in Johnson v. People, supra, and which is there held to be good. And in Cole v. People...