113 Ill. 531 | Ill. | 1885
delivered the opinion of the Court:
Edward E. Thomas and William G-. Murphy were convicted, in the Criminal Court of Cook county, of a conspiracy to obtain goods by false pretences from one Kate Carberry, by the verdict of a jury, and, thereby, punishment of the former was fixed at confinement in the.penitentiary for the term of three years, and that of the latter at paying a fine of $300. The court overruled a motion for a new trial, and gave judgment upon this verdict. This writ of error is prosecuted by Thomas alone.
Several grounds are urged upon which we are asked to reverse this judgment, and such of them as we deem material shall be briefly considered.
First—It is contended the court erred in overruling the motion to quash the indictment. Since the motion was general to the entire indictment, it was properly overruled if either count was good; and since the verdict expressly finds the defendants guilty of a conspiracy to obtain goods by false pretences, saying nothing as to the third count, which is for obtaining goods by false pretences, simply, this is equivalent to a finding of not guilty under that count. (Stoltz v. People, 4 Scam. 169 ; Chambers v. People, id. 356.) And, therefore, if either of the counts for conspiracy be. good, it will sustain the verdict. (Lyons v. People, 68 Ill. 276, and cases cited.) ■The first count, under the ruling in this State, whatever may be decided elsewhere, is clearly good. To obtain goods by false pretences 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, in substance, identical with the count in Johnson v. People, supra, and which is there held to be good. And in Cole v. People, 84 Ill. 216, (a case in the decision of which Mr. Justice Dickey and the writer of this opinion did not then and do not now concur,) the court went still farther, and held, where the act to be accomplished was not in itself illegal, but the conspiracy was to accomplish it by illegal means, the illegal means need not be set out, but that the . offence, only, need be set out in the terms and language of the Criminal Code, or so plainly that the nature of the offence may be easily understood.
Second—A motion in arrest of judgment was made, and overruled, and it is contended this was error, because, first, if the offence of which the defendants were convicted was felony, then the third count, which was only for a misdemeanor,— that of obtaining goods by false pretences,—was improperly joined; and second, if the offence of which they were convicted ' was not felony, then the punishment imposed was improper. Without at all conceding that a count for a misdemeanor can under no circumstances be joined with a count for felony, it is sufficient for the present to observe the offence of which the defendants were convicted was not felony at common law, (2 Bishop on Crim. Law, 4th ed. see. 231,) and it is not made felony by our statute, and so is necessarily a misdemeanor. (Lamkin et al. v. People, 94 Ill. 501.) All the counts being for misdemeanors, (and that, too, manifestly, for the same misdemeanor, stated in different ways,) there was, even on the theory of the counsel for plaintiff in error, no misjoinder. The offence being a misdemeanor only, why the punishment imposed was improper, we can not divine. It was certainly competent for the legislature to provide that a misdemeanor might be punished by confinement in the penitentiary. It was so provided in the statute, and this verdict is within the meaning and intent of that statute.
Third—We are unable to say that the evidence does not sustain the Verdict. The prosecutrix, Mrs. Carberry, had a small stock of family groceries, which she advertised to sell or trade. The defendant Thomas responded. He was aided by the defendant Murphy, in obtaining her confidence, and in consummating the scheme by which possession was got of her goods. Thomas professed to own certain city lots, and these she agreed to take for her goods. He represented his title to be good, and the property to be clear of incumbrances. By these means he got possession of her goods. He neither owned the lots, nor was able to procure a deed conveying the legal title to them, to her,—and this want of title and inability the defendants knew when the pretended trade was made. The only question raised upon the facts, demanding attention, is, whether the negligence of the prosecutrix in not having the records examined in respect of the title, can be urged as a defence. We think it does not lie in the mouths of these defendants to say, that because, by their'artifice, they inspired an unmerited confidence, they are guiltless. The offence is the combination to obtain property by false pretences; and the very object might be, and often is, to so influence the party as to prevent the accuracy of the pretences being tested. Whether one owns property, is a fact. The truth in regard to it might, undoubtedly, be disclosed by the record, but it might equally be disclosed by the declarations of the party; and the most dangerous artifice, and that against which it is most important the law should protect simple-minded and credulous people, is that whereby they are induced to forego all investigation, and trust implicitly to the trickster. 2 Wharton on Crim. Law, (7th ed.) sec. 2128; Cowen et al. v. People, 14 Ill. 348 ; State v. Munday, 78 N. C. 460; State v. Dow, 33 Maine, 498.
The judgment is affirmed.
Judgment affirmed.