People v. Smith
87 N.E. 885
Ill.
1909
Check Treatment
Mr. Justice Hand

delivered the opinion of the'court:

It is first contended that the indictment is insufficient in this: that the several counts thereof do not set forth the means whereby the conspiracy was to be accomplished and carried into effect. The rule in this State is, that where the object of a conspiracy is unlawful,—that is, where the conspirators agree together do an unlawful act,—it is not necessary in the indictment to set out the means whereby the conspiracy was to be accomplished and carried into effect; that it is only necessary to set out the means to be used for its accomplishment when the conspiracy is to do a lawful act but unlawful means are to be used to carry it into effect. (Chicago, Wilmington and Vermilion Coal Co. v. People, 214 Ill. 421.) Eight counts of this indictment charge a conspiracy to obtain money or other property by false pretenses and one count of the indictment charges a conspiracy to cheat and defraud by false pretenses. It is illegal at the common law to obtain money or property, or to cheat and defraud, by means of false pretenses; (12 Am. & Eng. Ency. of Law,—2d ed.—p. 794; 19 Cyc. p. 386; 2 Bishop on Crim. Law,—7th ed.—chap. 10;) and section 46 of the Criminal Code of this State makes it a criminal offense for two or more persons to conspire or agree together to obtain money or other property by false pretenses, and section 96 of the Criminal Code makes it a criminal offense to cheat or defraud another by any false pretense. If, therefore, it were held that the several counts of this indictment did not set out the false pretenses which were to be used as a means to accomplish the objects of the conspiracy charged in the indictment we would be of the opinion the indictment was sufficient. We think, however, that all the counts of the indictment, excepting the eighth and ninth, do set out the false pretenses which were to be used as a means to accomplish the object of the conspiracy, with sufficient particularity. The statute provides, and in Tedford v. People, 219 Ill. 23, this court said, (p. 26) : “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.” Clearly, seven counts of this indictment state the facts so plainly that the nature of the charge might be cleárly understood by the jury.

In Johnson v. People, 22 Ill. 314, the indictment charged that the defendants, “wickedly and unjustly devising and intending one Joshua B. Casey to defraud and cheat of his goods and property, did then and there falsely and fraudulently conspire, combine, confederate and agree together, among themselves, to get and obtain, knowingly and designedly, by false pretenses, of the said Joshua B. Casey, one horse of the value of $600,” with the intent to defraud and cheat him of the same, and the court, in disposing of the question as to the sufficiency of this charge in the indictment, on page 316, said: “The first question presented is whether the court erred in overruling the demurrer to the indictment. Our statute has declared it to be an offense to obtain goods by false pretenses, and ‘undoubtedly, as obtaining goods by false pretenses is a statutory misdemeanor, conspiracies to effect them are indictable.’ (Wharton on Crim. Law, 674.) This is the common law rule, and brings this indictment clearly within the provisions of the 169th section, chapter 30, R. S. 182, which provides that all offenses not enumerated in that chapter shall be punished by fine and imprisonment, in the discretion of the court, limiting the fine to not more than $100 and the imprisonment to not exceeding six months. It is likewise insisted that the offense is not sufficiently charged; that the means intended to be employed for the purpose of obtaining the property are not specified in the indictment and do not show an indictable offense. No judge ever doubted that a conspiracy to cheat is an offense, as much as a conspiracy to commit larceny, robbery or other crime. The means agreed to be employed by defendants in such cases may never have been disclosed and could not therefore be stated, and yet the offense would be complete and may be proven by overt acts and other circumstances. The very nature of the offense would, as a general thing, render it impossible for the prosecutor to ascertain and prove the means agreed to be employed. We think the charge contained in this indictment clearly describes an offense at the common law, and that the demurrer was properly overruled.”

In Smith v. People, 25 Ill. 9, on page 13, it was said: “We may safely assume that it is indictable to conspire to do an unlawful act by any means, and also that it is indictable to conspire to do any act by unlawful means. In° the former case-it is not necessary to set out the means used, while in the latter it is, as they must be shown to be unlawful. * * * If the term ‘unlawful’ means criminal, or an offense against the criminal law, and as such punishable, then the objection taken to this indictment is good, for seduction, by our law, is not indictable and punishable as a crime, but by the common law governing conspiracies the term is not so limited, and numerous cases are to be found where convictions have been sustained for conspiracy to do unlawful acts although those acts are not punishable as crimes.”

In Thomas v. People, 113 Ill. 531, the indictment charges that the defendants “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,” and other property, (describing it,) from one Kate Carberry, “by false pretenses," 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.” The false pretenses were not set out. It was urged that the indictment was not good because the false pretenses were not specified. The court sustained the indictment, and said (p. 536) : “The first count, under the ruling in this State, whatever may be decided elsewhere, is clearly good. To obtain goods by false pretenses 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. 9; 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.”

In Chicago, Wilmington and Vermilion Coal Co. v. People, 214 Ill. 421, the defendants were charged with conspiracy, and agreeing together to do an illegal act injurious to the public trade by entering into and becoming parties to a pool, trust and agreement to wrongfully and illegally fix the price of coal. The means were not set out in the indictment. The court, on page 440, said: “Those counts

charge that the object of the conspiracy was unlawful, and not that its object was lawful and the means for its accomplishment unlawful. It was therefore unnecessary to set out the means whereby the conspiracy was to be accomplished. (Thomas v. People, 113 Ill. 531.) Neither was it necessary that the object of the conspiracy constitute an offense against the criminal law for which an individual might be indicted and convicted, (Smith v. People, 25 Ill. 9,) but if the object thereof was unlawful said counts sufficiently charge a conspiracy at common law.”

If any one count of an indictment is good it is sufficient to sustain a conviction. (Thomas v. People, supra; Lyons v. People, 68 Ill. 271; Ochs v. People, 124 id. 399.) In the Ochs case, on page 414, it was said: “Whether there is anything of substance in this variance we need not consider, for even if the count be defective that would be of no avail, it being the well settled principle that a conviction on a general verdict will be sustained although some of the counts are faulty, if there be one good count in the indictment.—Hiner v. People, 34 Ill. 297.”

It is next urged the indictment does not sufficiently point out the person or persons who were sought to be unlawfully deprived of their money or property. Some counts charge the victims of the conspiracy to be the public, and others the stockholders, depositors, creditors and customers of the bank, who were ignorant of the true condition of the bank. In order to establish an offense by proof it was not necessary to show that the conspiracy was formed for the purpose of cheating or by false pretenses obtaining the money or property of any particular individual, but it was sufficient to show an unlawful combination to obtain the money or property of any person belonging to the class known as the public, or the money or property of any person who, as a stockholder, depositor, creditor or customer of the bank, might be a victim of the unlawful designs of the conspirators. As it was not necessary to prove that the conspiracy was formed to cheat or defraud a particular person in order to show the guilt of the plaintiffs in error, it was not necessary to aver in the indictment that the conspiracy was formed against any particular person. We think, therefore, the indictment was not defective in the particular pointed out.

It is also said that the parties to the conspiracy are improperly described in the indictment, it being urged that Robert H. Howe was in the conspiracy, and that as that fact was known to the grand jury he should have been specifically named in the indictment and not been referred to under the general description that he was unknown to the grand jury. This phase of the argument proceeds upon the hypothesis that the persons who enter into a conspiracy so form a part of the offense as to be descriptive of the offense, and that a misdescription of the parties who are engaged in a conspiracy is fatal. The logic of this position is, if too many or too few are named in the indictment there must be an acquittal of all. This cannot be the law. Clearly, if three persons are named in an indictment as conspirators two may be convicted and one acquitted, and if two or more are named in the indictment it would be no defense to prove that someone not named in the indictment was a party to the conspiracy. We are satisfied the great weight of authority is to the effect that the persons engaged in a conspiracy are not so far a part of the offense as to be said to be descriptive of the offense, and the fact that a conspirator is designated in the indictment as unknown when he is known to the grand jury is not fatal to a conviction. People v. Mather, 4 Wend. 229; Graff v. People, 208 Ill. 312; Cooke v. People, 231 id. 9; Clune v. United States, 159 U. S. 590; McClain on Crim. Law, sec. 981; Joyce on Indictments, sec. 354; Commonwealth v. Edwards, 135 Pa. St. 474; Cohen v. United States, 157 Fed. Rep. 651; United States v. Miller, 26 id. 1255; People v. Richards, 76 Cal. 412.

It is also urged that the court erred in refusing defendants a bill of particulars. The counts of the indictment, with the exception of the eighth and ninth, were sufficiently specific to apprise the defendants fully of the offense with which they were charged and sufficiently set out the means whereby the object of the conspiracy was to be accomplished, and as no evidence was offered under the eighth and ninth counts of the indictment which was not properly admissible under the other counts of the indictment, no harm resulted to the defendants by the refusal of the court to grant to them a bill of particulars. The court has a wide discretion in granting or refusing to grant a bill of particulars. DuBois v. People, 200 Ill. 157; Gallagher v. People, 211 id. 158.

It is also urged that the court erred in ruling upon the evidence. While the court may have committed some technical errors in the course of the long trial had in this case in its rulings upon the admission or rejection of evidence, we are unable to say that any reversible error was committed.

It is finally contended that the evidence is insufficient to sustain the verdict. We think it clear that the plaintiffs in error, with Pierce and others, formed a scheme to organize a bank under the State law in the city of Chicago, and to obtain a majority of its stock, and to elect themselves officers thereof, and to control the funds which should be paid into the bank, without putting into the bank but a very little, if any, of their own money. This was clearly unlawful, as under the statute then in force (Hurd’s Stat. 1905, chap. 16a, sec. 5, p. 201,) the capital stock of the bank must be paid for in cash, and in order to carry out such unlawful scheme the plaintiffs in error, with others, proposed first to sell the stock at $200 per share, $100 per share of which should be treated as surplus. This was done, we think, to raise a fund in cash from the amount paid in by the bom ñde subscribers on stock sufficient to exhibit to the Auditor of State to enable them to obtain a charter, as without a charter they could not carry into effect their scheme. This part of the scheme was carried into effect before the bank was organized. The second step in the scheme was to draw out of the bank, so soon as it was organized, in payment of checks, or by way of loans, all the money which the plaintiffs in error and their co-conspirators had put into the bank in payment of the stock subscribed for by them and to substitute in lieu thereof in the bank worthless securities. This was also done as soon as the bank was open for business. The third step in the scheme was to obtain for themselves more than one-half of the capital stock of the bank which they represented had been paid for in full and thereby to obtain control of the management of the bank. This they also accomplished. It is said by the plaintiffs in error, and it is urged by their counsel, that the plaintiffs in error did all this innocently and without the design to defraud the public or anyone connected with the bank, and that the losses which followed the organization of the bank were due to the inexperience and ignorance of the plaintiffs in error and their associates. It can hardly be presumed, without evidence, that the plaintiffs in error and those persons intimately associated with them in the organization and management of the bank supposed, under the law, that they could legitimately, by the manipulations hereinbefore referred to, within a few days lawfully create $350,000 in wealth, which it seems to be contended they thought they had done. On the contrary, it is obvious, we think, that the plaintiffs in error and their intimate associates realized that if the other stockholders in the bank knew that they were not paying for their stock, such other subscribers would not readily put into the enterprise $200 in cash per share for the stock which they had subscribed for, hence it was necessary that they state to the other stockholders that the stock had all been subscribed for and paid for in cash, and even to swear to that statement. They also must have realized that prospective purchasers of the stock which they held and which they were subsequently trying to sell even up to within a few days before the bank went into the hands of the receiver, and prospective customers of the bank, would not purchase their stock or deposit funds in the bank if they knew that less than one-half of the stock liabilities due the bank had been paid to the bank. Hence the plaintiffs in error, in connection with their intimate associates in the bank, advertised that the bank had a paid-in capital of $500,000. We are also impressed with the view that the plaintiffs in error did not believe' it was legitimate banking to pay their stock subscriptions due the bank with worthless notes, as in their bank statement made on the first day of February, 1906, they scheduled said notes among their resources as loans and discounts. We think, therefore, the jury were justified in finding, upon the evidence found in this record, that the plaintiffs in error were guilty of the offense charged against them in the indictment returned against them.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.