221 Ill. 51 | Ill. | 1906
delivered the opinion of the court:
The first contention of plaintiffs in error is that the evidence is not sufficient to sustain a conviction. Greear admits that he formed a conspiracy with Keefe and McCormick to defraud the book-makers in Chicago, and Young is a confessed gambler. The jury saw and heard them and the witnesses produced by them testify, and while the direct evidence that Young was connected with McCormick and Keefe is very meagre, in view of all the circumstances proven on the trial, if no error of law had been committed during the trial we would not reverse the case on the ground that the evidence was not sufficient to sustain the verdict. The only evidence tending to connect Young with McCormick and Keefe, and to show a conspiracy between Young, McCormick and Keefe to work the confidence game upon Greear, other than Greear’s testimony, was certain evidence in writing of which secondary evidence was admitted upon the trial in the place of the original written evidence, and this secondary evidence, it is claimed by plaintiffs in error, was admitted without a proper foundation being laid for its admission, and that the admission of such secondary evidence constitutes reversible error.
Greear testified that while in Minneapolis, Keefe showed him two letters purporting to be written to Keefe by McCormick, in one of which McCormick said he wanted Keefe to get a good, honest man with money to go to Chicago and make “sure thing” bets on horse races. When asked where the letter was, he said Keefe destroyed it. He afterwards said Keefe destroyed one letter, and afterwards said Keefe destroyed the letter other than the one containing the statements above referred to. His testimony, when taken as a whole, clearly showed that the last time he saw the letter, if he ever saw such a letter, it was in the possession of Keefe. Objection was made to the admission of parol proof of the contents of said letter on the ground that the evidence showed the letter was in the possession of Keefe when last seen by the witness and that Keefe had not been notified to produce the letter upon the trial. The general rule is, that parol evidence cannot be received of the contents of a writing unless a proper foundation has been laid for its admission by notifying the party in whose possession the writing is, to produce it upon the trial or by showing that it has been lost or destroyed. No such foundation was here laid with reference to this letter, and the court erred in permitting parol proof of its contents. Holbrook v. Trustees of Schools, 22 Ill. 539; Wright v. Raftree, 181 id. 464.
The court also permitted the State to introduce in evidence a copy of a telegram purporting to have been sent by Keefe from Mankato, Wis., June 13, 1905, to Fred Gondorf (McCormick) at Chicago, requesting Gondorf (McCormick) to meet Keefe the next day at 10:3o at the Majestic Hotel, without proof of the loss or destruction of the original telegram or even that the copy offered was a copy of the original. The copy introduced was the copy retained by the telegraph company among its files in its Chicago office, and the court seems to have entertained the view that such copy was the original. This was not the correct view. It was not shown that Fred Gondorf (McCormick) ever received said telegram, or that it was ever acted upon by either Keefe, McCormick or Young, or that it was signed or sent by Keefe. It was introduced as the admission of Keefe that he knew McCormick and desired to have him meet him. In order to bind Keefe it was necessary to show he signed or sent the telegram or that he acted upon the telegram after it was received, and the best evidence of the contents of the telegram was the original telegram filed at Mankato, Wis. (Matteson v. Noyes, 25 Ill. 481; Morgan v. People, 59 id. 58.) It was error to admit in evidence the copy of said telegram.
When Keefe was arrested, a card was taken from his vest pocket upon which was written, “L. Y., 3030 Indiana avenue, phone Douglas 2685,” which were the initials of Louis Young, the number of his residence and his telephone number. The police officer who received the card from the officer who took it from Keefe, testified that the last time he saw it, which was four or five days before the trial, he gave it to the assistant State’s attorney. Young testified he had never seen the card, knew nothing of its contents or how Keefe came by it. The court, without requiring the production of the card by the assistant State’s attorney or proof of its loss or destruction, over the objection of the plaintiffs in error, permitted the police officers to state what was written on the card at the time it was taken from Keefe. This evidence was exceedingly damaging to Young as it tended to connect Keefe with him, and it was error to admit parol proof of what was written on the card without proof of the loss or destruction of the card. Mariner v. Saunders, 5 Gilm. 113; Whitehall v. Smith, 24 Ill. 166; Wing v. Sherrer, 77 id. 200; Williams v. Case, 79 id. 356.
The plaintiffs in error have urged other grounds of reversal, but as the matters complained of are not likely to occur on another trial it is not necessary that they be here considered.
For the errors of the court in admitting in evidence the copy of said telegram and parol proof of the contents of said letter and the matter written upon said card without the proper foundation having been laid for the admission of secondary evidence, the judgment of the criminal court will be reversed and the cause remanded to that court for a new trial.
Reversed and remanded.
