2 N.E.2d 324 | Ill. | 1936
Lead Opinion
William E. Gould and Sam D. Burge were convicted in the circuit court of Henry county on an indictment charging them with obtaining the property of Richard Naseef by means and by use of the confidence game. The cause is here on writ of error.
The principal ground urged for reversal is that the evidence does not show that defendants were guilty of the confidence game, and that if any crime was proven it was the obtaining of Naseef's property by false representations.
Defendants for a number of years had been officers of the Savings Bank of Kewanee. At the time of the transaction for which they were indicted Gould was president and Burge was cashier. They also conducted in the banking room a farm-loan business under the name of Fischer, Gould Burge. The business had been in existence for more than twenty years prior to Fischer's death, in August, 1926. Thereafter it was continued under the same name until a receiver was appointed, in November, 1927. The bank closed in September of that year. Naseef was engaged in the confectionery business. He is of foreign birth and reads or writes but little English. He was a customer of the bank, and also of the co-partnership, for more than twenty years. The transaction with the defendants upon which the charge is based was an exchange on November 12, 1926 of mortgage notes aggregating $9000 held by him for notes of the same amount but secured by a later trust deed upon the same land. The land consisted of a farm of 440 acres in Henry county. Henry J. Ringel, the owner, made a trust deed to Cairo A. Trimble in 1919 to secure an indebtedness of $35,000. Later in the same year he executed two junior trust deeds to *350 John Fischer, trustee, one for $16,000 and the other for $17,500, to secure money borrowed from defendants' firm. The junior trust deeds were foreclosed and the land was sold subject to the senior encumbrance of $35,000. A master's deed was issued to Stanley M. Ringel for a purported consideration of $31,550.04, and on November 12, 1923, he executed notes of that date aggregating $30,000, payable to himself three years thereafter, with interest at six per cent. The notes recited that they were secured by trust deed of even date to John Fischer, trustee, on Henry county land. They were endorsed by the maker and the co-partners. On the same day Stanley M. Ringel quitclaimed the premises to Sam Burge. Burge re-conveyed to Ringel. It appears that the trust deed was not executed until March 8, 1924, and was not recorded until December 10. Thereafter Ringel again quit-claimed to Burge. While Burge held the record title he executed two trust deeds to Trimble, one for $25,000 and the other for $10,000 to replace the senior mortgage, which was thereupon released. This left the $30,000 trust deed subject to the Trimble encumbrances of $35,000. On January 3, 1924, Naseef purchased from the partnership $9000 of the notes out of the $30,000 issue secured by the junior trust deed. It does not appear from the record, and it is not claimed, that Naseef was misled in any way by defendants into the belief that the notes were secured by the first mortgage or trust deed. On November 12, 1926, Burge again executed a quit-claim deed to the land to Ringel, and Ringel executed a trust deed securing notes for $40,000, due five years after date. Ringel then conveyed the land to Burge. Stanley M. Ringel had no interest in the land. He held title for the benefit of the defendants and occupied the farm under a lease from Burge, and the trust deeds executed by him were with an understanding between him and defendants that he should not be liable. The words, "Please do not publish," appear in Burge's handwriting *351 upon the outside of the several deeds and trust deeds mentioned.
Naseef testified that he went to the office of defendants on November 17, 1926, and demanded payment of his notes, stating that he had decided to purchase an apartment building. He first talked to Gould, who called Burge into conference. In the latter's presence Gould told Naseef he was foolish to buy real estate when his farm loans paid six per cent each year, and reminded him that they had been paying the interest on the notes he held. At that time they paid him all the interest then due on his notes. Gould told Burge to get some notes which they had for sale, and Burge brought in a pile of them and placed them on a table. Gould said: "Mr. Naseef, we have the best farm loans in Henry county close to Kewanee. It will draw you six per cent interest, first mortgage notes, just as good as government bonds; and besides that, we have these notes endorsed by Fischer, Gould Burge. Another thing, the Savings Bank of Kewanee is behind those notes. What better investment would you want?" Both Gould and Burge assured him the notes were first farm mortgage loans, and Burge stated they did not sell any other kind. Naseef told them, "If that is what you promise, I will give up my real estate and buy that note from you. But one thing I am afraid of. Nine thousand dollars in one piece of land I don't like very well." Gould then said, "You won't go wrong Mr. Naseef; it is better than government bonds, that investment." Naseef relied upon their statements and did not know that the notes he received were secured by the same land as the notes he surrendered. He then turned his $9000 in notes over to plaintiffs in error and received new notes for a like sum out of the $40,000 notes secured by the trust deed of November 12, 1926. Nine thousand dollars had been paid on Trimble's $10,000 trust deed, leaving an aggregate of *352 $26,000 unpaid on the Trimble prior liens. In November, 1928, Trimble acquired the property under strict foreclosure.
There is a difference between the crime of confidence game and that of obtaining money or property by false pretenses. On account of the multitude and diversity of means employed to fraudulently obtain the confidence of a victim, the term "confidence game" can hardly be defined in a manner that will cover and segregate all cases of that nature from those constituting the offense of obtaining money or property by false pretenses. Obviously, false pretenses of some sort are employed in a confidence game. The crimes are separate and distinct and are differentiated by the facts and circumstances of the transactions. The difference between the two offenses may be found in the many expressions of this court where the question has been at issue. By those cases it is well established that any designed misrepresentation of an existing fact or condition by which a party obtains the money or goods of another is a false pretense under the statute making it a crime to obtain money or property by false pretenses. (People v. Peers,
If Naseef had confidence in defendants it arose from the long course of honest business dealings between them and him over a period of more than twenty years. There is nothing in the testimony to indicate that such confidence was inspired by anything which was said or done in connection with the trade of his old notes for new ones. If his testimony is true, defendants were guilty of obtaining his *354 property by false pretenses, and they were subject to the penalties of the statute relating to that offense. Such a showing, without the element of confidence fraudulently obtained for the purpose of the swindle, is not sufficient to support a conviction under the confidence game statute. That statute being penal, we are not authorized to extend its meaning or provisions by implication. The proofs are insufficient to bring defendants within its terms.
The judgment of the circuit court is therefore reversed.
Judgment reversed.
Dissenting Opinion
I do not concur in the majority opinion. It changes the rule in this State governing the crime of confidence game. Under the rule as it existed when this case was tried, the accused were proved guilty by an abundance of evidence. This is a flagrant case. This is no time to change the rule, even if there were valid arguments for such change. The majority opinion has so constricted the scope of the confidence game statute as largely to nullify it. There is, to be sure, a difference between obtaining money by false pretense and obtaining the same by means and by use of the confidence game. False pretense, as defined by this court and by law writers, is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value. (Jackson v. People,
The majority opinion holds that where confidence, honestly obtained through a course of regular business dealing, is breached, such does not constitute confidence game, and that this is such a case. It is a rule frequently announced by this court, that where the confidence of the victim is reposed in the accused but not through any fraudulent representation made at the time of the transaction complained of, and such confidence is breached, such is not within the confidence game statute. This is but the common-sense view. But this court has never heretofore held that the fact that the victim previously had confidence in the accused rendered the latter immune from the confidence game statute where he had defrauded the victim through fraudulent representations concerning the transaction. Clearly, one who, for a certain use and purpose, trusts his funds to another without fraudulent representation on the latter's part, and so parts with his money to his injury, has not been fraudulently induced so to do. Of such a case isPeople v. Benton,
If application of the confidence game statute be limited to cases where the swindler has no reputation for honesty known to the victim, and so the victim had no confidence in him previous to the transaction complained of, or to those offenders who have not previously had honest dealings with the victim, many who, by false representations concerning the transaction, gain the confidence of their victims in the bona fides of such transaction and defraud them must escape the confidence game statute. Such could not have been the intention of the legislature. To so limit the act is to largely nullify it. The confidence contemplated in that statute is confidence in the accused procured by fraudulent representations concerning the transaction offered the victim. Whether the victim had previously thought the accused an honest man or whether he was his friend can be of no weight in determining whether the confidence game statute applies to a case where the confidence of the victim is induced by fraudulent representations. Quite obviously, if the victim did not believe, or at least presume, the swindler to be honest in his representations he would not deal with him at all. The gist of the offense lies in gaining the confidence of the victim by fraudulent representations concerning the transaction, but for which fraud he would not have entered into the deal.
In People v. Crawford,
The victim may have had many transactions with the swindler in which the latter acted honestly, but if by fraudulent means he has gained the victim's confidence in his representations concerning the particular transaction the confidence so gained brings the swindling transaction within the statute. Numerous cases of this State place this construction on the act. InPeople v. Brady,
In People v. Singer,
In People v. Harrington,
In People v. Epstein,
In People v. Zurek,
In People v. Emmel,
In People v. Shepard,
The cases above cited show that this court has consistently held that where fraudulent representations concerning the particular transaction are made for the purpose of gaining the victim's confidence and swindling him, and which do so gain it, to his injury, the crime of confidence game is proved, and it matters not that the accused at the time enjoyed a reputation for honesty known to the victim.
It is argued that there is nothing in the testimony in this case to indicate that the confidence of Naseef, the complaining witness, was inspired by anything that was said or done in connection with the transaction here complained of. Naseef had bought securities from plaintiffs in error and was a customer at the bank, yet it is evident that on this day he had no intention of buying the fraudulent notes but intended to collect the money for the notes then due and to purchase real estate with it. He undoubtedly would have insisted upon payment of the notes but for the fraudulent representations by which his choice in the matter was changed. That change in his purpose occurred because of confidence inspired by those fraudulent representations. He did not come to Burge and Gould seeking investment of funds because of his confidence in them, as was true in some of the cases decided by this court and herein discussed. He sought no investment with them, but, on the contrary, demanded payment of the notes held by him that he might make an investment of his own choosing. It is but a fair statement, well borne out by the evidence, that he changed his mind because of the fraudulent statements *361 made to him by Burge and Gould at the time of this transaction. There is ample evidence, therefore, that the confidence such fraudulent representations inspired in him was thus built up during the conversation he there had with the accused. It is equally well shown that they intended to thus defraud him. Without investigation he took their word that the notes were first mortgage notes; that they were a better investment than an apartment building which he had contemplated buying; that they were as good as government bonds, and that the bank was behind them as well as Burge and Gould. All these statements Burge and Gould knew were false. Surely the fact that these swindlers were favorably known in that community should not be allowed to become a bulwark behind which they may hide, where, as the evidence shows, they engaged in a course of conduct designed to swindle Naseef.
The decisions of this court do not afford basis for holding in a case where, as here, bankers who have had a reputation for honesty in the community turn rogues and fleece the people out of their property, and that because the accused were at some time considered by the complaining witness to be honest men they may not be punished for a felony under the confidence game statute but can be held guilty only of a misdemeanor. The crime committed here is more cowardly and more deserving of punishment as a felony than robbery. The robber must face his victim and demand his money.
No complaint is made of the conduct of the State's attorney or of the rulings of the trial court that would indicate that these plaintiffs in error have not had a fair trial. The record discloses that the State's attorney fairly and ably conducted the prosecution. The guilt of the plaintiffs in error was thoroughly established. Under the decisions of this court the People made out a case within the confidence game statute. *362