144 Ill. App. 129 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The errors assigned and urged upon us in argument resolve themselves into the following contentions:
First, that the indictment and every count of it is so defective that it does not sustain the judgment of conviction; second, that the evidence is insufficient to sustain the charge of conspiracy to obtain money and other property by false pretenses; third, that Howe’s testimony was rendered incompetent because of his having testified before the grand jury, he being a co-conspirator with plaintiffs in error and not being so designated in the indictment, and this also made a variance between indictment and proof, and fourth, errors committed by the trial court in his ruling upon evidence and in instructions to the jury.
First. The indictment charges the defendants with a conspiracy to obtain money by false pretenses. So to conspire is both a statutory and a common law offense, and persons so offending may be indicted either under the statute or at common law, or both, as in this indictment. We have analyzed the several counts in the indictment and are of the opinion that each count substantially charges a conspiracy to obtain money by false pretenses, which is a charge of conspiring to do an unlawful act.
The eighth count in effect charged violation of section 46, chapter 38 B. S., which provides: “If any two or more persons conspire or agree together * * * to obtain money or other property by false pretenses * * * they shall be deemed guilty of a conspiracy; and every such offender and every person convicted of conspiracy at common law shall be imprisoned in the penitentiary riot exceeding five (5) years or fined not exceeding two thousand dollars ($2,000), or both.”
This count charges the statutory offense of conspiracy to obtain money by false pretenses, and does not set out or show in what such false pretenses consisted. The gravamen of the offense is the conspiracy to do .the unlawful act. It is not the false pretenses which constitute the crime, but the conspiring together with the design to make such false pretenses.
Thomas v. The People, 113 Ill. 531, was an indictment for conspiracy to obtain the goods of another by false pretenses. The indictment charged the conspiracy and that it was with a fraudulent intent to feloniously and wrongfully obtain a horse and other property from one Kate Carberry by false pretenses and to cheat and defraud her, etc. In this indictment the false pretenses were not set out, and because of such omission it was contended the indictment was not sufficient. In overruling this contention the court say: “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. 17; Cowen v. People, 14 id. 348. The first count in the present indictment is identical with the count in Johnson v. People, supra, and which was held to be good.”
In Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 241, the charge was conspiracy to do an illegal act injurious to the public trade, by entering into a trust agreement to illegally fix the price of coal. There was no specification of the means used in forming the conspiracy set out in the indictment. It was contended that the purpose was lawful, and that the means used therefor should have been set out in the indictment. On this point the court say:
“Those counts charged that the object of the conspiracy was unlawful, and not that its object was lawful and the means of 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 count sufficiently charged a conspiracy at common law.” State v. Buchanan, 5 Harris & Johnson, 317; Cole v. People, 84 Ill. 216.
If the proof sustain the statutory conspiracy charged in the eighth count of the indictment, then without regard to the soundness of the other counts it is sufficient to sustain the conviction. As said in Thomas v. People, “If either of the counts for conspiracy be good, it will sustain the verdict. Lyon v. People, 68 Ill. 276, and cases cited.”
In Ochs v. People, 124 Ill. 414, the indictment consisted of five counts. The first count being challenged as insufficient, the court say: “Whether there is anything in substance in this variance we need not consider, for even if the count be defective that would be of no avail, it being a 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.”
Section 408, chapter 38, B. S.; provides: “Every indictment or accusation of a grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.”
The eighth count is in the language of the statute, and the means by which the end of the conspiracy was accomplished is, we think, plainly apparent from the averment of most of the other counts of the indictment, and as said in Tedford v. People, 219 Ill. 23: “If the indictment is so plain that the nature of the offense with which the defendants are charged can be easily understood by the jury and by the defendants, that is all that the law requires. ’ ’
We are satisfied that .the indictment meets the requirements of the statute, as interpreted by the Supreme Court in cases supra.
It was held in State v. Buchanan, supra, “that in a prosecution for a conspiracy, it is sufficient to state in the indictment the conspiracy and the object of it; and that the means by which it was intended to be accomplished need not be set out, being only matters of evidence to prove the charge, and not the crime itself, and may be perfectly indifferent, as in Rex v. Eccles, and Rex v. Gill & Henry.’’
In section 208, volume 2, Bishop’s New Criminal Procedure, the author says: “No indictment is ever required to charge one with what the law has not made a part of his crime; and when two or more combine to cheat another, they become guilty of a criminal conspiracy, although they have not even considered the means; hence, as agreed means are not essential to the offense, it would be a perversion of justice to require the prosecuting power to allege them.”
It is again urged that the indictment is deficient because it fails to charge that the conspiracy was formed against any individual, but against the public generally. There are many decisions, British and American, showing the fallacy of this contention. One of the most instructive is Reg. v. Gurney, 11 Cox’s Criminal Cases, 414, which is peculiarly applicable because it is a case involving banks and banking as in the case at bar. Lord Chief Justice Cockburn, in summing up the case to the jury, said: “It is not because a conspiracy to defraud is directed against the general public, that it is the less an offense, by reason that you have not in your eye a particular individual who is defrauded. Independently of which it is quite plain that any conspiracy having for its purpose to defraud those individuals of the general public who may be caught by it, is a continuing conspiracy until it shall have arrived at its accomplishment and completion. As soon as the particular individual is brought into contact with the conspirators, the conspiracy, which before was general, becomes in this case, if I may use the expression, individualized and fixed; and that which was a conspiracy to deceive the general public becomes a conspiracy to deceive and defraud particular individuals.” Reg. v. Brown, 7 Cox’s Criminal Cases, 422; and in Reg. v. Esgile, 1 Foster & Finlanson, 213, the court said to the jury: “It is for you to say whether the balance sheets were not falsified to deceive the public and concealed the true state of affairs and to delude persons into purchasing shares; and whether the defendants were not privy to the common design to effect that object by those means. ’ ’
The dates in the seventh count, in which it is charged that the acts constituting the conspiracy were committed, are said to be so inconsistent and impossible as to constitute a fatal defect in the indictment. We regard the exact date as immaterial. While a date must be stated in the indictment, yet the proof is not necessarily confined to the date stated, provided some date is proven as the date on which the offense charged in the indictment was committed. The date is laid under a videlicet and any date within the period of the statute of limitations would suffice.
It is our opinion that the refusal of the trial court to quash the indictment' was without error.
Second. On the question of the guilt of the plaintiffs in error we are by the record restricted to the evidence introduced by the State to sustain the indictment, in connection with the testimony of Pierce (called in his own behalf), as neither Smith nor Sorrow proffered any proof in denial of the charge and introduced no evidence in an effort to exculpate themselves from the charge in the indictment or repel the proof of the State supporting it, save only witnesses produced to testify as to their former good character in the community. Neither did they go upon the witness stand in their own defense. While a defendant in a criminal prosecution is not disqualified from being a witness in his own behalf, yet it is for him to choose whether he will testify, and it is the statute law that a defendant’s neglect to testify shall not create any presumption against him, nor shall such action be the subject of comment before the jury. Nevertheless, the record lacking any explanation of the charge in the indictment by plaintiffs in error, or any witness for them, we cannot assume that any matter or excuse not developed by the State’s proof is available to them as a defense. Consequently our consideration of the case and our judgment on the probative force of the evidence in determining the guilt or innocence of Smith and Sorrow, must be restricted to the case made by the State, in connection with Pierce’s testimony.
The evidence is voluminous and rests in the testimony of more than one hundred witnesses. We have given as concise and brief a synopsis of this evidence as we were able to encompass within reasonable limits in the statement preceding this opinion, and to more than briefly touch its vital points in this review is neither necessary nor practicable. If the law required proof that the indicted persons in fact assembled together and concocted, made out and planned, the conspiracy charged, then this prosecution must fail; but if, on the contrary, all the law requires is to establish by proof facts connecting the defendants with the conspiracy charged, and their relation to it, as it gradually developed to its final accomplishment, then the conviction must stand.
The charge resolves itself into one of conspiracy to obtain money by false pretenses, and the means used in accomplishing the purposes of the conspiracy was the establishment of a bank under the laws of Illinois to be called the Bank of America. This bank was first conceived by Sorrow, who succeeded in interesting Smith. The state auditor, upon the application of Smith, Robert H. Howe and Thomas J. Healy, on October 24, 1905, granted permission to organize the Bank of America, with an authorized capital of $250,000, divided into 2,500 shares of $100 each. It is shown that the indicted defendants agreed among themselves that beside the capital of a quarter of a million of dollars a like sum should form the surplus of the bank; that to procure such capital and surplus, shares of stock of the bank should be sold at the rate of $200 per share. Smith, who had been engaged in making loans upon real estate, represented that he had a loan business amounting to a million and a half dollars, which could be used to form the nucleus of the real estate loan department of the bank, while as a matter of fact he had, previous to the making of such representations, disposed of his business as a mortgage broker to Caswell & Healy. Smith subscribed for one-half of the stock of the bank as trustee, but as he failed and refused to disclose his pretended principals, his subscription must be regarded as his own. Sorrow subscribed for 125 shares, Pierce for 120 shares, and Creelman for 250 shares. Other parties were interested and the balance of the stock subscribed. On the 29th of November, 1905, a meeting of the subscribers to the stock was held, at which Smith and Sorrow and Pierce were present, and a board of fifteen directors was selected. At that meeting it was stated by Pierce, and not denied by anyone, that the stock had been over subscribed to the extent of $135,000. The directors assembled after the stockholders’ meeting and elected officers, Smith being elected president, Sorrow vice-president, Pierce cashier, and Robert H. Howe assistant cashier. A statement was made as required by the statute, signed by all of the directors, including Smith and Sorrow, that all of the stock had been subscribed for and paid in in full, in cash; that no part thereof was in notes or pledges of any description, and that such capital was then in thé hands of the proper officers at the bank, to be used by them solely in the legitimate business of the bank, when the same should be opened. This statement, verified as required by the statute, was filed with the state auditor.
The State Bank of Chicago was-, pending the organization of the Bank of America, selected as the depository for the bank’s moneys. Smith borrowed $25,000 of the State Bank and deposited as collateral security 150 shares of the stock of the Bank of America, evidenced by three certificates of fifty shares each. The money was added to the funds.of the bank, although the 150 shares of stock had not been paid for. Smith told Sorrow and Pierce that the parties who stood back of him in his subscription for half the bank’s capital stock had failed him, and that he was unable to get any money from that expected source, that some arrangement would have to be made to tide over this condition so unexpectedly presented.
Sorrow did not pay any cash for the stock subscribed for by him. His repudiation of the application to the account of $4,000 deposited by him, has been noted in the statement prefixed to this opinion. Pierce paid on his subscription $20,000 borrowed from his uncle, whose money was immediately returned to him on his note at the opening of the bank. Creelman paid $10,000 in cash and made a colorable payment of the balance of $40,000 with a cashier’s check of the Federal National Bank, which was afterwards, on the morning the bank opened for business, repaid to the Federal Bank on a cashier’s check of the Bank of America, which had been practically “kited” for it. So far as cash resources went, these transactions, except Creelman’s payment of $10,000, were mere pretenses. They were matters of bookkeeping only.
On December 2, 1905, the day appointed for reeeiving the charter from the state auditor, C. C. Jones, a bank examiner connected with the state auditor’s department, and acting for the state auditor, attended to examine the condition of the bank, to verify the statement as to possession of cash to the amount of the capital stock preparatory to delivering the charter. .With him at the State Bank were Smith and Robert H. Howe. This is the first time that there is direct evidence of the conspirators acting in concert. They at that time well knew the falsity of the sworn statement that the capital stock had been paid for in full in cash. At this interview at the State Bank with the state auditor’s representative, they again asserted to him that the bank’s capital had been paid in cash, and was on deposit with the State Bank. At the State Bank Smith and Pierce drew a check for $250,000 upon funds then on deposit to the credit of the Bank of America, which check was paid and the money counted by Jones, the state auditor’s representative. At this time the Bank of America had a credit in the State Bank of $271,000. Jones, however, was kept in ignorance of the fact that cashier’s checks were outstanding against the bank’s funds. On these surface appearances, unexplained, the charter, authorizing the bank to commence business, was obtained by Smith from the state auditor.
It therefore follows from this recitation of fact that the charter permitting the bank to do business was obtained from the state auditor by false and fraudulent pretenses, for if the truth had been made known to the representative of the state auditor, the charter would have been withheld; for, if the true condition of the bank’s assets had been disclosed, as it should have been, the law would not have permitted the state auditor to deliver the charter.
Whatever view may be taken of the condition of the cash resources of the Bank of America at the time it received its charter, it is clear that it had not its capital stock paid in full in cash; that as a matter of fact its cash resources of every kind were much less than the par value of its capital stock. Not only this, hut it is apparent that so far as the payment of its capital stock is concerned, less than one-half had been paid at that time, as one-half of the cash resources consisted of cash paid to surplus account by the paying stock subscribers. The conspiracy inferable from the acts of the parties prior to December 2, 1905, is on that date made glaringly apparent. The evidence of the conspiracy formed was then complete, although it had not been fully developed and consummated.
In furtherance of carrying to complete fruition this conspiracy, Smith and Sorrow and Pierce manufactured notes aggregating $229,000. These were to take the place of money for stock subscriptions. These notes were signed by irresponsible parties not interested in the bank, and merely as an accommodation, and at the solicitation of Smith, Sorrow and Pierce. The makers of these worthless notes were the dependents, friends and indigent relatives of plaintiffs in error and Pierce, and all of such notes were indorsed by Smith.
Smith and Sorrow not only perpetrated such fraud upon the bank, but personally profited in some of the transactions. Upon examination of the bank’s condition, reputable banks in Chicago refused to act as its clearance agent. Without any lawful right, on two occasions, Smith, to secure his personal debt, hypothecated the Ferry note for $45,000, secured by mortgage, which the bank held as collateral to a loan of $30,000 made to William H. Freeman.
The notes aggregating $229,000, indorsed by Smith, were afterwards exchanged for like worthless notes without Smith’s indorsement. This was done in an attempt to overcome an objection of the bank examiner and the Commercial National Bank that Smith was liable on too much of the bank’s paper.
From the time the bank opened for business, statements were printed and circulated, and advertisements inserted in the public press of Chicago, under the name of the officers of the hank, including plaintiffs in error, in which it was stated that the capital stock was $250,000 and the surplus $250,000, all fully paid; and on January 30, 1906, in response to a request of the state auditor, a statement was prepared and sworn to by Pierce, showing loans and discounts to the amount of $614,225.61, which included $157,200 of accommodation paper of little or no value.
In the faith of the verity of these representations stock was bought by the public at $200 per share, and on January 19, 1906, Smith sold to W. B. Martin 100 shares of stock at $200, and also thereafter sold fifty shares of stock to Joseph Beifeld for $9,250.
On the first of February, 1906, the bank issued a statement, sworn to by Pierce as cashier, in which the resources of the bank were stated to be $803.090.60, and from which it appeared that the capital stock and surplus together amounted to half a million dollars, and had been paid in full.
On the 15th of February, 1906, the bank went into liquidation, and closed its career of seventy-three days duration.
We think the facts fully sustain the unlawful conspiracy charged in the indictment. The conspiracy rests in the false pretense that the capital stock and surplus of a like amount had been paid in full in cash. The evidential fact of the falsity of such statement is concededly demonstrated by the proofs. Two hundred and twenty-nine thousand dollars of comparatively worthless notes were carried as cash. That the conspiring defendants had paid for their stock was another false pretense. Whether or not bank stock, under the statutes of this state, may be paid for in property other than cash, is beside the question and of no importance, as bearing upon the conspiracy charged and proved. The act would seem to indicate that cash was required to satisfy its provisions; but be this so or not, the indicted defendants and the other directors swore that it was so paid, and by their statements and writings and advertisements so held out the fact to be. They were not true. They were pretenses of falsity. Such is virtually the admission of counsel for plaintiffs in error.
Martin, Beifeld and others were injured when they purchased stock in faith of these delusive and false representations. True it is that the evidence shows that depositors of the bank were paid in full; but it is just as true that a loss of considerable magnitude fell upon the stockholders who were lured to subscribe for stock in faith of the verity of the false representations made resulting from the conspiracy of the indicted defendants.
The burden of refuting the imputation of conspiracy established by these facts the law casts upon plaintiffs in error. The evidence supporting the conspiracy charged they have failed to repel by proof or from circumstances environing the several .transactions.
Third. The indictment charges the indicted defendants with having “wrongfully, wickedly, fraudulently, feloniously and unlawfully conspired, combined, confederated and agreed together with each other, and with divers other persons, whose names are to the said grand jury unknown, to get and obtain money,” etc. The proof shows that the witness Howe testified before the grand jury, and it is therefore argued that the grand jury knew that he was a co-conspirator with the indicted defendants, and that the indictment is consequently defective in not charging bim by name as a co-conspirator, that there is a variance apparent between the proof and the indictment which is fatal. It might be a sufficient answer to this contention to say that the record fails to show what Howe testified to before the grand jury. No objections are found in the record to Howe’s testifying upon the ground now urged as disqualifying him or as constituting a variance. The names of the persons with whom the indicted defendants conspired are not descriptive of the offense; it is a question of evidence, not of pleading.
This case is readily distinguishable from that of Sullivan v. People, 108 Ill. App. 328. In the Sullivan indictment neither the words “with persons to the grand jury unknown,” nor words of like import were, found. If Howe be regarded as a co-conspirator his testimony as to things done and conversations had with the indicted defendants was admissible. The controlling principle is stated in Wharton on Criminal Evidence, ninth edition, section 700, thus: “It makes no difference as to the admissibility of the act or declaration of a conspirator against a defendant, whether the former be indicted or not or tried or not with the latter; * * * the principle upon which they are admissible at all being that the act or declaration of one is the act or declaration of all united in one common design, a principle which is wholly unaffected by the consideration of their being jointly indicted.”
In People v. Fehrenback, 102 Cal. 394, it was held that. “the declarations of a conspirator who is not prosecuted are equally admissible with those of one under indictment and prosecution.” People v. Bentley, 75 Cal. 407; Van Eyck v. People, 178 Ill. 199; Williams v. State, 47 Ind. 569; Graff v. People, 208 Ill. 312.
The latest expression. of opinion by our Supreme Court, found in Cooke v. People, 231 Ill. 9, solves any doubt, if any heretofore existed, on this subject. In the Cooke case one Seinwerth was a witness before the grand jury, and as the proofs developed on the trial, a party to the conspiracy. He was not indicted or named in the indictment. As in this case, Seinwerth’s testimony before the grand jury did not appear in the record. It was contended that it was inferable from the language of the indictment that the grand jury knew that Seinwerth was a co-conspirator with Cooke, and that from their failure to name him as a co-conspirator it followed that there was a variance between the indictment and the proof. But on the contrary the court held that it was clearly inferable, from the fact that the indictment charged the conspiracy to he between Cooke and Charles H. Bradley and with divers other persons whose names were unknown to them, that the grand jury did not know Seinwerth was a co-conspirator; for, if the grand jury had been informed that he was a co-conspirator they would have named him as such in the indictment.
The Supreme Court in that case held, as we do here, that there was no variance between the indictment and the proof arising from the fact, developed during the trial, that one of the witnesses examined by the prosecution was a co-conspirator and was not named in the indictment.
Fourth. A careful scrutiny of the evidence admitted and argued by counsel for plaintiffs in error as erroneous fails to disclose any ruling adversely affecting their rights or the merits of the cause. All the evidence admitted related to the conspiracy charged in the indictment and were connecting links establishing it. The record bears evidence that the rulings of the trial judge on the admission of proof were fair and impartial; and we are, in the condition of this record, unable to say that any such errors occurred in regard to the court’s ruling as would justify us in remanding the cause for another trial; for, as said in Clark v. People, 31 Ill. 479: “If the great object of a trial has been had and slight departures from form have occurred, it is not a sufficient reason for setting aside the proceeding and pursuing again all the forms of a new trial to arrive at the same result.”
Among many objections made is one against the admission as evidence of the hooks of the hank, at the time of the trial, in the hands of the receiver. The difficulty with this objection lies in the inferential assumption, at least, that the books were the property of the indicted defendants, their own private papers, and therefore not admissible as being statements against themselves. Such, however, is not the fact. The books were the books of the bank, and in no sense the individual property of any of the defendants. Such assumption by the conspirators is one of the evils which brought on this prosecution. The indicted defendants conspired to do the thing charged and in carrying out such conspiracy treated the bank and its property as their own. It was not error to permit the state to prove the value of the assets, or the value of the notes put into the bank in the place of cash for capital stock. It was material and relevant to prove such facts showing that by reason of the conspiracy charged loss had been sustained by parties investing their money in faith of the verity of the false pretenses made in pursuance of such conspiracy.
The court did not err in denying the motion for a bill of particulars, for the reason that the indictment in itself gave sufficient information of the crime charged, and there is nothing in the proof which shows that plaintiffs in error were taken by surprise, or were in any way prejudiced, because of lack of knowledge of the particular facts upon which the State depended for conviction. All the substantial and material facts proved are shadowed forth with sufficient particularity in the various counts of the indictment, and evidence properly received in support of them. This is in accord with the settled law of this state on that subject. Gallagher v. People, 211 Ill. 158; Kelly v. People, 192 Ill. 119; DuBois v. People, 200 Ill. 157.
Counsel for Smith says in his brief that he has argued the case “upon the assumption that all the evidence was admissible, and that no errors were committed upon the trial.” This assumption is in harmony with our opinion. But little stress is laid by either counsel for plaintiffs in error, and by some of them none, calling in question the correctness of the court’s instructions to the jury upon the law. The instructions given at the instance of the plaintiffs in error and their co-defendants, were unusually full and covered every conceivable phase of the law invokable as a defense under the proof on which the State rested its case for a conviction. There is no point of law contained in the instructions refused material to the defense which is not embodied in some of the numerous instructions given. Three instructions refused, urged in argument by counsel for Sorrow as being improperly refused, relate to a,contention that inactivity, negligence, or failure to do an act does not constitute the crime of conspiracy. These instructions were not relevant to the proof, and were but statements of abstract legal propositions. Criminal intent arises at times from the actions of the parties, when such actions are inconsistent with honest intent and are solvable only on the hypothesis of criminality, and such was the duty of the jury to find from the evidence before them.
Complaint is also made of a statement by the trial judge that Pierce could take the stand and contradict the statement made by a witness in his cross-examination. As this was personal to the defendant Pierce, it is sufficient to say that if it was a statement hurtful to his defense, he is not here complaining. He has bowed in submission and paid the penalty imposed by the law for his offense. We do not think that this remark of the court was in any manner prejudicial to the rights of the plaintiffs in error.
We are of the opinion that the evidence of the State sustains the conspiracy charged in the indictment, and that the indictment aptly charged against the defendants a statutory and common law conspiracy. We are fortified in this conclusion by many authorities, some of which we have cited in this opinion, and particularly by the case of Reg. v. Brown, supra. This was an information by the attorney general, charging the directors of the Royal British Bank and its general manager with conspiring, by false representations, to defraud the shareholders and customers and the public. This conspiracy arose from the fact that after the insolvency of the bank was known to the defendants, they published false statements, that the bank was a solvent, thriving institution; also with the knowledge of the insolvency of the bank issued new shares, and bought shares with the bank’s money, in order to keep up the price, inviting shareholders to buy new shares, and inviting persons to open accounts with the bank. •Lord Campbell charged the jury that “if the defendants knew of the insolvency of the bank at the time they sold new stock and invited the public to purchase shares and to open accounts with the bank, then they ought to be found guilty; but if any of them did not know of its insolvent state then they should be acquitted.” With regard to the conspiracy he said: “It is not essential that evidence should be given of any formal consultation, in which the parties are supposed to have deliberately resolved to do an illegal act or to do a legal act by illegal means; but if, as reasonable men, you see there was a common design, and they were acting in concert to do what is wrong, that is evidence from which a jury may suppose that a conspiracy was actually formed.” The jury under this charge found all of the defendants guilty. Many of the acts forming the conspiracy in the Boyal British Bank case are similar to those charged in the ease at bar. In the former the conspiracy consisted in holding out the bank to be solvent after knowledge of its insolvency. Here the conspiracy started with the false pretense that the capital stock of the bank was fully paid in, in cash; and upon the apparent verity of such representation the state auditor was deceived, and the charter of the bank procured. This was preceded by issuing cashier’s checks against the bank funds and withholding such facts from the representative of the state auditor. This was followed up by the saddling upon the bank a large amount of worthless paper of irresponsible persons in pretended payment for the stock of the bank; in almost looting the bank by loaning to Creelman and to institutions in which he was interested about $145,000, which was within about $40,000 of the total deposits of the bank; in failing to pay their stock subscriptions; unlawfully appropriating the securities and money of the hank to their own use; in making sworn and other statements and publishing advertisements of the bank’s assets, resources and liabilities, which were false, under which false pretenses stock was sold to innocent parties at $200 per share and customers and depositors and bona fide shareholders of the bank were deceived. These are the main and evidential facts constituting the conspiracy which resulted, after an existence of seventy-three days, in the bank closing its doors, being put into the hands of a receiver, making a loss in the vicinity of $175,000, which loss fell upon the bona fide and deluded stockholders.
We find no errors in this record justifying this court in reversing the judgment of the Criminal Court, and it is therefore affirmed.
Affirmed.