| Ill. | Oct 16, 1895
delivered the opinion of the court:
First—Objection is made to the indictment upon the ground, that it does not embrace in its averments every criminal, fact that is material to the punishment sought to be inflicted. It is insisted, in other words, that the indictment should specify all the facts with such certainty that the offense may judicially appear to the court. We do not regard the indictment as bad for the reason thus stated.
Section 98 of division 1 of the Criminal Code, under which the indictment was found, is as follows: “Every person who shall obtain, or attempt to obtain, from any other person or persons, any 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.” (1 Starr & Cur. Stat. p. 782, chap. 38, sec. 98).
There are two statutory provisions which justify the framing of such an indictment under said section 98 as is set out in the record in this case. The first is section 6 of division 11 of the Criminal Code, which 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 ereating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” (1 Starr & Cur. Stat. p. 857; Scott v. People, 141 Ill. 195" date_filed="1892-03-24" court="Ill." case_name="Scott v. People">141 Ill. 195). The second is section 99 of division 1 of the Criminal Code, which immediately follows said section 98, and specifically refers to the crime therein described, and 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.” (1 Starr & Cur. Stat. p. 782). In view of the two statutory provisions thus quoted, we held, in Morton v. People, 47 Ill. 468" date_filed="1868-06-15" court="Ill." case_name="Morton v. People">47 Ill. 468, that an indictment, precisely like the one here, was good.
Second—It is claimed, that the proof in the case at bar does not describe such an offense as is defined by section 98. In support of this contention, counsel for plaintiff in error invokes the well established rule, that, where particular words of a statute are followed by general words, the general words are restricted in meaning to objects of the like kind with those specified. (Bishop on Stat. Crimes—2d ed.—sec. 245). It is, therefore, urged, that section 98, by employing the words, “by means or by use of any false or bogus checks, or by any other means, instrument or device,” has reference exclusively to the obtaining of money or property by the use of false or bogus checks, or by the use of other false or bogus commercial paper, or paper of the same specific class as checks. There might be force in the application of the rule thus invoked by counsel, if it were not for the use of the words, “commonly called the confidence game,” which immediately follow the word “device.” These words imply, that the statute was intended to embrace any other means, instrument or device, besides the use of false or bogus checks, which comes within the meaning of what is commonly called the confidence game. The object of the rule, embodied in the maxim, noscitur a sociis, that is, that the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated, is to ascertain and carry out the legislative intent, and not to defeat such intent. The rule will not be applied, where its application would contravene the plain meaning of a law. (23 Am. & Eng. Ency. of Law, pp. 439, 442). “General words will be construed, even as against defendants in penal statutes, more broadly than the specific, where such appears clearly to have been the meaning of the legislature.” (Bishop on Stat. Crimes, sec. 246). Although statutes imposing penalties and fines are strictly construed, yet the construction must not be so strict as to defeat the legislative intention; and accordingly we have held that, even in the case of such statutes, it is proper to apply the principle of interpretation laid down in section 1 of the act in regard to the construction of statutes, (Rev. Stat. chap. 131, sec. 1; 2 Starr & Cur. Stat. p. 2329), which provides, that “all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the legislature may be fully carried out.” (Hankins v. People, 106 Ill. 628" date_filed="1883-06-16" court="Ill." case_name="Hankins v. People">106 Ill. 628).
It being the evident intention of the statute to punish the obtaining, or attempting to obtain, money or property by any means, instrument or device commonly called the confidence game, it would be a very narrow construction of the statute to restrict its meaning to such devices as consist only in the use of false or bogus checks, or other commercial paper of like character. The generic or family characteristic, by which other means, instruments or devices are included within the same genus as the device specifically mentioned, is not so much indicated by the word, “checks,” as by the words, “false or bogus.” The obtaining of money by means or use of what is false or bogus is the offense aimed at. This is further apparent from the designation, in section 99, of the victim as “the person defrauded or attempted to be defrauded.”
It is difficult to give,a definition of what is commonly called the confidence game. In Morton v. People, supra, we said: “The nature and character of the so-called confidence game has become popularized in most of the cities and large towns, and even in the rural districts of this broad Union, and is well understood;” but no attempt was made to give any definition that should be applicable to all cases. On the contrary, speaking there of the devices referred to in section 98, we said: “As these devices are 'as various as the mind of man is suggestive, it would be impossible for the legislature to define them, and equally so to specify them in an indictment; therefore the legislature has declared, that an indictment for this offense shall be sufficient if the allegation is contained in it that the accused did, at a certain time and place, unlawfully and feloniously obtain or attempt to obtain the money or property of another by means and by use of the confidence game, leaving to be made out by the proof the nature and kind of the devices to which resort was had. ”
The popular idea of the confidence game, as understood “in most of the cities and large towns, and even in the rural districts” of the Union, is best expressed in the definition thereof in Webster’s International Dictionary, and is as follows: “Confidence game is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler.” We think that the facts of this case show a swindling operation, in which advantage was taken of the confidence reposed by the prosecuting witness in the plaintiff in error, who is unquestionably shown to have been a swindler. We are, therefore, inclined to think that, under the proofs here, the offense committed by plaintiff in error was within the meaning of the language used in section 98.
Third—Objection is made to the first instruction given for the prosecution upon the alleged ground, that it calls the attention of the jury to what counsel calls irrelevant matter. The matter said to be irrelevant is the element of “false representation and encouragement,” which was united with the trick at cards, in order to induce the prosecuting witness to part with his money. We think that all the facts together constituted the “swindling operation.” When plaintiff in error represented, that he was a commercial traveler and had advertising cards or circulars to distribute, he was guilty of false representation. He was equally guilty of false representation, when he induced plaintiff in error to believe that Anderson was a disinterested outside party anxious to become acquainted with the scheme in hand, and that he himself had a check in his pocket, and would go to the bank and get it cashed, in order to return to the prosecuting witness his money. In all this there was an element of false representation. So, when plaintiff in error offered to pay the prosecuting witness for distributing the cards or circulars, and interested him in the scheme of drawing the cards so as to get a card calling for so much money’s worth of clothing or jewelry, he encouraged him to part with his money. These elements of false representation and encouragement were mingled with the trick of the cards in such a way as to gain the confidence of the victim, and throw him off his guard.
Counsel say that, by the use of the words, “false representation” and “trick at cards,” the first instruction confounds the offenses described in sections 97 and 100 with the offense named in section 98. Section 97 refers to false representations in writing of his own respectability, wealth, or mercantile correspondence or connections, whereby the offender gains credit and thereby defrauds his victim. The instruction cannot be understood as referring to false representations of this nature. Section 100 refers to games or devices by the fraudulent use of cards, as explained in Blemer v. People, 76 Ill. 265" date_filed="1875-01-15" court="Ill." case_name="Blemer v. People">76 Ill. 265. There was here no such game of chance or trick with playing cards, as is intended by section 100.
We find no error in the record which would justify us in reversing the judgment. Accordingly, the judgment of the circuit court is-affirmed.
judgment affirmed.