Graham v. People
55 N.E. 179
Ill.
1899
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

This prosecution is based upon section 98 of the Criminal Code, which reads as follows: “Every person who shall obtain, or attempt to obtain, from any other person or persons, an;?- money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten years.”

The indictment was framed under section 99 of the Criminal Code which is as follows: “In every indictment under the preceding section, it shall be deemed and held a sufficient description of the offense, to charge that the accused did, on, etc., unlawfully and feloniously obtain, or attempt to obtain, (as the case may be), from A B, (here insert the name of the person defrauded or attempted to be defrauded), his money (or property, in case it be not money), by means and by use of the confidence game.”

The motions, made by the plaintiff in error to quash the indictment and in arrest of judgment, were based upon two grounds. In the first place, it is alleged, that the indictment is insufficient as not expressly stating all the acts constituting the offense, with which the prisoner is charged, and-as thereby failing to inform the prisoner of the nature and cause of the accusation against him. We are of the opinion, however, that the indictment is not invalid for the reason thus urged against it. This court has held in a number of cases that, where an indictment charges .that money was obtained by means and by use of the confidence game, such indictment sufficiently describes the offense, defined in section 98 of the Criminal Code, because of the express provisions of section 99 above quoted, and also because of the general provision contained in section 6 of division 11 of the Criminal Code. Said section 6 provides, that “every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” Said section 6 then gives a form for the commencement of an indictment. Section 98 of division 1, and section 6 of division 11, of the Criminal Code justify the framing of "the indictment in the present case in the language in which it is above set forth. (Morton v. People, 47 Ill. 468; Maxwell v. People, 158 id. 248; Loehr v. People, 132 id. 504; Seacord v. People, 121 id. 623; West v. People, 137 id. 189; Coffin v. United States, 156 U. S. 432).

The second ground, upon which the indictment is claimed to be invalid is, that said section 99 is unconstitutional. The constitutionality of this act was considered in Morton v. People, 47 Ill. 468, and it was there held that the act, defining, creating and punishing the confidence game, was not in violation of the constitution of the State. Its constitutionality has been recognized by this court in a number of cases decided, since the case of Morton v. People was decided. We see no reason for changing the conclusion reached in Morton v. People, supra, and decline to reconsider the grounds, upon which the conclusion arrived at in that case is based.

We are, therefore, of the opinion that the court below committed no error in refusing to quash the indictment, because of the insufficiency of its allegations, or because of the alleged unconstitutionality of the statute under which it was framed.

At the close of the evidence for the State, and again at the close of all the evidence, the plaintiff in error requested the court to give to the jury a written instruction to find defendant not guilty. The court refused to give the instruction so asked, and exception was duly taken.

The instruction No. 28, asked by the plaintiff in error, the defendant below, was refused-as asked, but was modified and given as modified. To the giving of the instruction, as modified, exception was duly taken. Instruction No. 23 as asked was as follows:

“The court instructs the jury, that an attempt to obtain money by means of the confidence game consists of the following three elements: First, an intention to obtain money by means of the confidence game; second, the doing of some act toward the obtaining of money by means of the confidence game; third, the failure so to obtain the money. Unless said three elements have been each and all established by the evidence beyond a reasonable doubt, there has been a failure to prove the commission of the crime charged in the indictment.”

Instruction 23, as modified and given, is as follows:

“The court instructs the jury that an attempt to obtain money by means of the confidence game consists of the following three elements: First, an intention to obtain money by means of the confidence game; second, the doing of some act toward the obtaining of money by means of the confidence game; third, the failure to so obtain the money in Perry county. Unless the said three elements have been each and all established by the evidence beyond a reasonable doubt, there has been a failure to prove the commission of the crime charged- in the indictment.”

The modification made by the court was the insertion of the words, “in Perry county,” after the word “money” in the third of the designated elements, constituting an attempt to obtain money by means of the confidence game.

The instruction, as asked by the plaintiff in error, correctly defined an attempt to obtain money by means of the confidence game.

Evidently, section 98 provides for the commission of two separate crimes. One is the crime of obtaining money by means of the confidence game, and the other is the crime of an attempt to obtain money by means of the confidence game. The words are: “every p'erson, who shall obtain or attempt to obtain,” etc. The use of the word “or” indicates that two offenses are described. (United States v. Quincy, 6 Pet. 464).

All the authorities, to which we have been referred, describe an attempt to commit a crime as consisting of three elements, to-wit: The intent to commit the crime; performance of some act towards the commission of the crime; and the failure to consummate its commission.

In American and English Encyclopedia of Law, (2d ed. vol. 3, p. 250), an attempt to commit a crime is defined to be “an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime.” It is also stated in the same text book, that the common elements of every attempt to commit a crime are “a criminal intent coupled with an overt act apparently adapted to effect that intent.” (3 Am. & Eng. Ency. of Law,—2d ed.—p. 254). Bishop in his New Criminal Law, (vol. 1, sec. 435,) says: “Whenever a man, intending" to commit a particular crime, does an act toward it, but is interrupted, or some accident intervenes, so that he fails to accomplish what he meant, he is still punishable. This is called a criminal attempt.” In Encyclopedia of Pleading and Practice (vol. 3, p. 97,) it is said: “An attempt in criminal law is an effort or endeavor to commit a crime amounting to more than a mere preparation or planning for it, and which, if not prevented, would result in the full consummation of the act attempted, but which in fact does not bring to pass the party’s ultimate design.” In Patrick v. People, 132 Ill. 529, we quoted with approval Bouvier’s definition, which is as follows: “An attempt to commit a crime is an endeavor to accomplish it, carried beyond mere preparation, but falling short of the execution of the ultimate design in any part of it.” In Scott v. People, 141 Ill. 195, it was said: “An attempt is an intent to do a particular thing with an act toward it falling short of the thing intended. When we say that a man attempted to do a thing, we mean that he intended to do, specifically, it, and proceeded a certain way in the doing.” (See, also, Cox v. People, 82 Ill. 191; Thompson v. People, 96 id. 158).

It will be observed, that a failure to consummate the crime is as much an element of an attempt to commit it, as the intent and the performance of an overt act towards its commission. In United States v. Quincy, supra, the Supreme Court of the United States say: “To attempt to do an act does not, either in law or in common parlance, imply a completion of the act, or any definite progress towards it.” Wharton in his work on Criminal Law, (vol. 1, sec. 173,) says: “An attempt is an intended apparent unfinished crime. * * * It must be unfinished, as otherwise the indictment would be for the complete crime.” Again, in American and English Encyclopedia of Law (2d ed. vol. 3, p. 265,) it is said: “The act must fall short of the completed crime.” It is also well settled, that mere solicitations do not prove an attempt. (Cox v. People, supra; Thompson v. People, supra).

The plaintiff in error in this case was indicted, not for obtaining money from the prosecuting witness, John A. Bowlin, but for an attempt to obtain thé same. The testimony shows, that the plaintiff in error succeeded in obtaining; $1500.00 in money from the prosecuting witness. Plaintiff in error did not merely attempt to obtain money by means of the confidence game, but he did actually obtain money by means thereof. Here, the indictment charges the plaintiff in error with one offense, to-wit: an attempt to commit a crime, but the proof shows conclusively the completed and consummated commission of the crime, which is another and different offense.

Can a party, who is indicted for an attempt to commit a crime, be convicted under evidence, which shows that he did commit it? This is a question, about which the authorities seem to differ, so far as theré are any authorities upon the subject. The general rule at common law was that, when an indictment charged an offense, which included wrEhin it any less offense or one of a lesser degree, the defendant, though acquitted of the higher offense, might be convicted of the less. (1 Bishop on New Crim. Law, sec. 1054; Hanna v. People, 19 Mich. 316; State v. Jarvis, 21 Iowa, 44; Carpenter v. People, 4 Scam. 197; Kennedy v. People, 122 Ill. 649; Clifford v. State, 10 Ga. 422). Thus, in Kennedy v. People, supra, where one was indicted for an assault with a deadly weapon with intent to inflict bodily injury, it was held that he mig'ht be convicted of a simple assault. Here, however, the indictment is not for obtaining money by. means of the confidence game, such obtaining being the greater offense, and, therefore, the question is not whether, under an indictment for so obtaining money, a conviction could be had for an attempt to obtain it, the attempt being the less offense. .The question here is, whether, where the indictment is for the less offense, proof of the greater will justify a conviction.

In Queen v. Nicholls, 2 Cox’s Crim. Cas. 182, which was an indictment for an assault with an intent to commit rape, and where the proof showed that the rape was committed, the court-held, that the prisoner should be acquitted of the attempt to commit the rape. (Roscoe on Crim. Evidence,—3d ed.-—p. 66; Rex v. Hammon, 1 East’s P. C. 411; Archbold’s Pl. & Pr.—10th ed.—485; Sullivan v. People, 14 N. Y. Weekly Dig. 239; Darrow v. Family Funds, Society, 42 Hun, 245). In State v. Sheppard, 7 Conn. 54, it was held, that proof of a rape would sustain an indictment for an attempt to commit a rape. The case of State v. Sheppard was based mainly upon the case of Commonwealth v. Cooper, 15 Mass. 187. The latter case, however, was disapproved of by Chief Justice Shaw in the subsequent case of Commonwealth v. Roby, 12 Pick. 496, and was virtually overruled by the latter case. The case of State v. Sheppard, supra, appears also to be opposed to other authorities, as will appear by a reference to 1 Bishop on New Crim. Law, secs. 788, 804, 809.

Inasmuch as our statute clearly defines the offense of an attempt to obtain money by means of the confidence game as being different and distinct from the offense of obtaining money by means of the confidence game, some force must be given to the provisions of the statute. It would appear to be logical, that, when a man is indicted for a particular offense, he must be proven guilty of that offense, and not of some other. It seems to follow that, if a man can be indicted for an attempt to commit an offense, and, under such indictment, be proven to have been guilty of the consummated offense, it would be unnecessary to make the latter a distinct crime. If proof, that a man.obtained money by means of the confidence game, is proper.under an indictment against him for an attempt to obtain money by means of the confidence game, then it would seem to be unnecessary in any case to indict him for the offense of obtaining money by means of the confidence game.

But, even if we are wrong in the views above expressed, the modification made of this instruction was erroneous. Instruction No. 23 attempted to define, in general language, an attempt to obtain money by means of the confidence game. The insertion of the words', “in Perry county,” in the manner, in which they were inserted in the instruction, makes it absurd. The words are not inserted after the word “attempt,” nor after the first and second elements in which an attempt is stated to consist. The jury may have believed, that the plaintiff in error had the intention of obtaining Bowlin’s money by means of the confidence game-in Alexander county, where Cairo is located, and that he did an act towards obtaining money by means of the confidence game in Alexander county, but that his failure only was in Perry county. The proof shows that the crime was consummated in Alexander county.' The crime, of which the plaintiff in error was guilty, if he was guilty at all, was the obtaining of Bowlin’s money; and he obtained it in Alexander county, and not in Perry county. The State cannot split up one crime, and prosecute it in parts. (Jackson v. State, 14 Ind. 327). A consummated crime may involve an attempt—a successful attempt—to commit it, but such attempt is merely a part of the completed offense.

Section 9 of article 2 of the constitution says that, in all criminal prosecutions, the accused shall have the right to “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” Section 4 of division 10 of the Criminal Code provides, that “the local jurisdiction of all offenses, not otherwise provided for by law, shall be in the county where the offense was committed.” The crime of larceny is made an exception, and the offender may be tried in any county, to which he carries the stolen property, as well as in the county in which the property was first taken. This rule, however, has no application to any crime other than larceny. (Crim. Code, div. 10, sec. 8; Campbell v. People, 109 Ill. 565). The statutory offense of doing an act in attempting to commit a crime is punishable in the county where the crime, unless prevented, would have been committed. (28 Am. & Eng. Ency. of Law, p. 234). An attempt to commit a crime “is cognizable in the place where, if not interrupted, it would have been executed; and from the very nature of things, it must be cognizable in the place where the preliminary overt acts, constituting the attempt, are committed.” (1 Wharton on Grim. Law, sec. 195). Instruction 23, as modified, virtually told the jury, that a part of the preliminary overt acts, constituting the attempt, might be committed elsewhere than in Perry county where the indictment was found, and the trial was had. _ “The offense of attempt is complete in the county where the offense, if consummated, must have been committed.” (Griffin v. State, 26 Ga. 493).

It is not only clearly shown by the proof in this case, that the crime of obtaining the money by means of the confidence game was perpetrated in Alexander county, and not in Perry county, but also that most, if not all the acts, constituting the preparation for the crime and going to make up the attempt to commit it, were performed in Alexander county. The prosecuting witness was taken to Alexander county; and in that county were found the Indian, and the pretended assayist, and the gold bricks. The act of assaying the ore was done in Alexander county.

It is well settled, that false representations, amounting to false pretences within the meaning of the statute, do not constitute the crime, unless the property has been actually obtained. It is, therefore, generally held, that the crime of false pretences is complete where the goods or moneys are obtained; and that, if the pretences are made within one jurisdiction and the property or money is obtained in another jurisdiction, the person, making the representations, must be indicted within the latter jurisdiction. (7 Am. & Eng. Ency. of Law, p. 758).

In State v. Shaeffer, 89 Mo. 271, it was held that the crime, which consists in making use of false pretences, is committed where the money or property is received, and-that, in a prosecution for obtaining money or property by means of false pretences, the place where the money or property is obtained, without regard to where the representations were made, is the place where the party should be prosecuted.

In Connor v. State, 29 Fla. 455, it was held that the receipt of property, obtained under false pretences, is the consummation of the offense, and when the pretences are made in one jurisdiction and the property is obtained by the offender in another jurisdiction, the prosecution should be instituted only in the latter jurisdiction, unless there is a valid statute permitting it elsewhere. (See also Stewart v. Jessup, 51 Ind. 413; State v. House, 55 Iowa, 466; Norris v. State, 25 Ohio St. 217). We see no reason why the same rule, which is applicable to the obtaining of money by false pretences, is not applicable to the obtaining of money by means of the confidence game. If this is so, then this prosecution should have been instituted in Alexander county, and not in Perry county. . .

If the words, “in Perry county,” had not been inserted in instruction No. 23, the jury could not have found the plaintiff in error guilty of an attempt to obtain money by means of the confidence game, because, to do so, they would have been obliged to find that his attempt was a failure, whereas the proof shows, that the attempt was not a failure. The instruction virtually told the jury, that it made no difference whether the money was obtained by means of the confidence game in Alexander county or not, if there was a failure to obtain it in Perry county. In this respect the instruction was clearly erroneous. The law defines an attempt to commit a crime as including the failure to consummate it, as well as the other elements above mentioned, and the law does not necessarily limit such failure to any particular county.

The judgment of the circuit court is reversed, and the cause is remanded to the latter court for further proceedings in accordance with the views here expressed.

Reversed and remanded.