People v. Weil
90 N.E. 731
Ill.
1909
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

The first contention of the plaintiff in error is that the court erred in overruling his motion to quash the indictment and each count thereof. The verdict of guilty on the second count was equivalent to a verdict of not guilty on the first count. (People v. Whitson, 74 Ill. 20; Keedy v. People, 84 id. 569; Thomas v. People, 113 id. 531.) By the verdict the first count was eliminated from the case, and error cannot be assigned upon any of the rulings of the court with reference to that count, and the second count was in the language of the.statute and was a good count. (Graham v. People, 181 Ill. 477.) The court did not err, therefore, in overruling the motion to quash.

It is next urged that the court erred in overruling the motion of the plaintiff in error for a bill of particulars under the second count of the indictment. Whether or not the State’s attorney should have been ruled to furnish the plaintiff in error a bill of particulars under the second count of the indictment was a matter which rested in the sound legal discretion of the trial court. The second count of the indictment was sufficiently specific to notify plaintiff in error of the criminal offense with which he was charged, and the court did not err in overruling his motion for a bill of particulars. Morton v. People, 47 Ill. 468; DuBois v. People, 200 id. 157; Gallagher v. People, 211 id. 158.

It is also contended that the court erred in declining to require the State’s attorney, at the close of the People’s case, to elect upon what count of the indictment he would ask for a conviction, and in permitting the State’s attorney to call witnesses whose names were not upon the back of the indictment. If two or more offenses are properly joined in an indictment under separate counts and grow out of the same transaction the State’s attorney will not be required to make an election for which offense charged in the indictment he will ask a conviction. ,The right to require the State’s attorney to elect for which offense he will ask the jury to convict, when more than one offense is charged in different counts of an indictment, is confined to cases where the offenses charged in the different counts of the indictment are actually distinct from each other and do not arise out of the same transaction. (Goodhue v. People, 94 Ill. 37; Andrews v. People, 117 id. 195; Herman v. People, 131 id. 594.) And it is within the sound legal discretion of the court to allow a witness to be called whose name is not endorsed on the back of the indictment, (Logg v. People, 92 Ill. 598,) and the exercise of that discretion will not be reviewed by this court unless it appears that the defendant has been taken by surprise, (Gifford v. People, 148 Ill. 173,) and the burden is upon the defendant to show that he was surprised. Here it appeared the counsel for the plaintiff in error was notified orally before the trial was commenced, in the presence of the plaintiff in error, by the State’s attorney, that the witnesses whose testimony was objected to and whose names were not upon the back of the indictment would be called and examined as witnesses upon the trial. While the practice, generally, is to give such notice in writing, we think it clear no surprise was worked upon the plaintiff in error, and that the court did not err in permitting certain witnesses to be called by the State’s attorney and to testify upon the trial although, their names did not appear upon the back of the indictment.

It is further contended that the court erred in ruling upon the admission and rejection of the evidence. The most-of the objections urged to the rulings of the court in this particular are hypercritical and need not be considered, and the specific objection .that the court permitted proof of other offenses cannot be sustained, as it was proper to prove plaintiff in error had obtained the money of other persons by the same confidence scheme by which he obtained the money of Brabenec, for the purpose of showing guilty knowledge. DuBois v. People, supra; Juretich v. People, 223 Ill. 484; Lipsey v. People, 227 id. 364; People v. Hagenow, 236 id. 514.

It is also said the court improperly instructed the jury on behalf of the People and refused to properly instruct the jury' on behalf of the plaintiff in error. The instructions have not been abstracted, and the rule is well settled that this court will not review assignments of error upon the rulings of the court upon the instructions unless the instructions are incorporated in the abstract. Pratt & Co. v. Paris Gas Light and Coke Co. 155 Ill. 531; City of Roodhouse v. Christian, 158 id. 137; Thompson v. People, 192 id. 79.

The plaintiff in error further complains that the State’s attorney in his argument made improper remarks to the jury. A party cannot assign as error in this court improper remarks by the State’s attorney in his remarks to the jury unless he objects to such remarks at the time they are made, and preserves an exception to the ruling of the court upon such objections or upon the refusal of the court to rule thereon. (Lipsey v. People, supra; McCann v. People, 226 Ill. 562.) The statement by counsel for the defendant during the argument of the State’s attorney, “I except to the statements of the State’s attorney,” or words to that effect, without any ruling of the court or an exception to the failure of the court to rule upon the objection, does not preserve for review in this court an exception to the remarks of the State’s attorney.

It is finally contended that the evidence does not support the verdict and that the verdict is contrary to law. It clearly appears that the plaintiff in error went to the place of business of Brabenec and represented to him that his name was Watson and that he was a friend of Mr. Schmidt, who' was also a friend of Brabenec, which statement was false; that he also represented to Brabenec that he was in the -employ of the American Wire Fence Company, which statement was also false; that after having gained his con.fidence by making those statements, he obtained from Brabenec $30 upon the representation that he had lost his money and would return the same to him the following • morning, and left with Brabenec. a worthless watch and his I. O. U. for $30, which he never intended to pay. This transaction, it is urged by the 'plaintiff in error, was a business transaction) and the obtaining of the $30 amounted, in law, to a loan of that sum from Brabenec to the plaintiff in error and nothing more, and that, conceding all the facts found in this record to be true, it does not show that the plaintiff in error committed the criminal offense of obtaining money by the confidence game from Brabenec. The jury evidently did not accept the plaintiff in error’s view of the effect of the transaction between the plaintiff in error and Brabenec. Neither do we. It was held in Chilson v. People, 224 Ill. 535, that the fact that the dealings be-' tween the parties assumed the form of a business transaction and its breach involved the breach of a contract did not relieve a defendant of criminality, where it .appeared the contract was entered into by a defendant with the intention of taking no steps to carry it out but with the wrongful intent of causing the other party to part with his money without receiving any adequate consideration therefor, and that where it appeared, as it was held in’ that case it did appear, that the contract was but a mere incident to the false and fraudulent scheme of the defendant, the defendant was liable for a violation of the statute defining the offense of obtaining money or property by the confidence game. In that case, on page 539, the court represented its view of the law upon the question now under consideration by an illustration founded upon the facts in an early case in this court. It was there said: “The ordinary case of agreeing to sell the gullible one a gold brick now in the possession of the aged Indian presents a breach of a contract, and yet counsel would scarcely pretend that .it is for that reason any the less a confidence game. The fact that the affair was made to assume the guise of an ordinary business transaction, whereby, as a preliminary, Spooner was required to pay his money for the lots, is without significance. It is the substance, and not the form, that is material. The transaction in question was ‘a swindling operation, in which advantage was taken of the confidence reposed by the prosecuting witness in the plaintiff in error,’—a • confidence that had been obtained by deceit and false promises. The case came within the confidence game statute.” In Maxwell v. People, 158 Ill. 248, it was said (p. 256) : “It is difficult to give a definition of what is commonly called the confidence game;” and in Morton v. People, supra (p. 474) : “These devices are as various as the mind of man is suggestive.” In the Maxwell case Webster’s definition of the offense was adopted, and it was there held (p. 256) that the “confidence game is any swindling operation in which advantage is taken of the confidence .reposed by the victim in the swindler".” And this court, in Hughes v. People, 223 Ill. 417, on page 421, said: “We think it clear, where a party has by a course of conduct le'd his victim to repose confidence in him with a view to take advantage • of such confidence and to obtain the money or property of his victim by a betrayal of such confidence, and advantage is taken of the confidence reposed by the victim in the swindler, and the swindler obtains, by reason of the betrayal of such confidence, the money or property of his victim, the statute has been violated.” In this case the evidence shows, without dispute, that Brabenec was swindled by the plaintiff in error out of his money by the betrayal of the confidence which the plaintiff in error’s fine clothes and appearance, professed acquaintance and friendship with his friend and false promises had inspired in Brabenec. We are of the opinion this case falls clearly within the terms of the confidence game statute, as construed by this court in Maxwell v. People, supra, DuBois v. People, supra, Hughes v. People, supra, Juretich v. People, supra, Chilson v. People, supra, and People v. Depew, 237 Ill. 574.

The judgment of the criminal court will be affirfned.

Judgment affirmed.