(200 111. 157)

DU BOIS v. PEOPLE. (Supreme Court of Illinois. Dec. 16, 1902.) CONFIDENCE GAME- INDICTMENT - BILL OF PARTICULARS-EVIDENCE OF

OTHER OFFENSES.

1. L. answered an advertisement offering large returns for an investment. F. called on her, read a letter, which he said was from a brother, stating that parties in C. were anxious to get stock in a certain gold mine; told her that he knew D., and would take her to D., and she could then sell it to the parties in C., whose names he read from the letter. They found D. in bed, claiming to be suffering from rheumatism, and he said he wanted to sell the stock, so he could go to Hot Springs. He gave her an option on it at 5 cents a share. She telegraphed to the parties in C., and they offerShe ed to give her 20 cents a share for it. then bought the stock, and it afterwards appeared that there were no such parties in C., but that the telegram had been answered by a confederate of F. and D., and that the stock was worthless. Held, that the facts were within Cr. Code, § 98 (1 Starr & C. Ann. St. 1896, p. 1280), declaring a punishment for "every person who shall obtain from any other person * any money * by means or by use of any false or bogus checks, or by any other means, instruments or devices, commonly called the confidence game."

* * *

2. To show guilty knowledge of D. of the confidence game, evidence of other like transactions in which D. took F.'s part in the transaction is admissible.

3. There is no error in refusing to require the state to furnish a bill of particulars to defendants indicted for obtaining money from a certain person by means of the confidence game.

Error to criminal court, Cook county; Frank Baker, Judge.

Harry Du Bois was convicted of obtaining money by the confidence game, and brings error. Affirmed.

John E. Northup, for plaintiff in error. Charles S. Deneen, State's Atty. (Edw. S. Elliott, Asst. State's Atty., of counsel), for the People.

WILKIN, J. Harry Du Bois, alias Harry I. Harris, and Charles M. Fegenbush, alias Charles K. Thorne, were indicted by the grand jury of Cook county, at the November term, 1900, of the criminal court, for the crime of obtaining money by means and by use of the confidence game. Upon the trial at the May term, 1902, they were convicted and sentenced to the penitentiary at Joliet. Harry Du Bois, alias Harris, alone prosecutes this writ of error.

The testimony of the prosecuting witness, Mrs. Laura G. Fixen, shows that she resided in the city of Chicago, and knew both defendants. She first met Fegenbush, who called himself Thorne, early in the fall of 1900, at which time she answered an advertisement which he had caused to be published in the Sunday Tribune, and he called upon her. The advertisement was to the effect that any one who would invest money with him could double it or get large returns for it in a short time. When he called upon her,

which was early in September, he read a letter to her which he said was from his brother, in Denver, Colo., to the effect that the brother knew certain firms there who were anxious to buy stock in a valuable mine, and Fegenbush told her that he knew where a large block of the stock was; that a man by the name of Harris had it, and that the Colorado parties had difficulty in locating him, but that he (Fegenbush) had located him, and would take her to the man, if she thought she wanted to buy the stock; that she could sell it to the Colorado parties,and that he then read the names of the parties in Denver from the letter purporting to be from his brother. She told him she would go and see Harris, and they went together the same day. They found Harris about 29 Indiana avenue, in bed, with his head bundled up; claiming to be suffering from rheumatism, and seeming to be in great pain. He showed her the stock and said he wanted to sell it so he could go to Hot Springs. She obtained from him an option for 60,000 shares of stock, at 5 cents per share, in the Ward Consolidated Gold Mine Company of Colorado, to be paid for before September 20, 1900; else the agreement should be void. Fegenbush was present at the time of the signing of the option agreement, and, as soon as they left the house, Mrs. Fixen went to the telegraph office, and telegraphed the parties in Denver, whose names had been given her, asking what they would give for the stock. In about two hours she received replies, purporting to be signed by the firms telegraphed to, each making an offer for the stock, ranging from 10 to 20 cents per share for the entire block of 60,000 shares. Upon receiving these telegrams she went the next day to see Harris, thinking it was a good investment, and taking with her $3,000 in cash. She found him in bed, as before, and after some negotiations she took an assignment of the stock, and paid him the $3,000. She immediately took a train for Denver, and upon arriving there made inquiry for the parties whose names were signed to the dispatches received by her, and soon ascertained that there were no such persons or firms in the city,-in other words, that the dispatches were false and fictitious. She returned immediately to Chicago, and began to look for the defendants, but failed to find either of them. She then reported the case to the police, and the defendants were subsequently located in Washington City and arrested, but by some means successfully resisted the extradition papers. They were later found in the city of New York, arrested, and brought back to Chicago. They gave bond for their appearance, but their recognizance was forfeited; but they were finally brought to trial, with the result above mentioned.

It is clear, not only from the testimony of Mrs. Fixen, but from that of the defendants themselves, that the whole scheme was a plot

to obtain the money of Mrs. Fixen by fraudulently obtaining her confidence and inducing her to believe that the worthless shares of stock held by Harris were of great value. That the dispatches sent by her from Chicago to Denver, inquiring what the stock could be sold for, were answered by a confederate of the defendants, is perfectly clear. Fegenbush virtually admits it by saying, "I don't know that I had a confederate in Denver to answer these telegrams." In short, the evidence is overwhelming that the defendants, acting together, by false and fraudulent means, commonly known as the "confidence game," obtained the money of the prosecuting witness.

Counsel for plaintiff in error admits that the conduct of defendants was criminal, but seeks to show that the crime committed was that of obtaining money by false pretenses, and not a violation of the statute against obtaining money by means of the confidence game; the argument being that the "means, instrument or device" used was not such as is contemplated by the use of those terms in the statute, and therefore the evidence fails to support the verdict. Section 98 of the Criminal Code (1 Starr & C. Ann. St. 1896, p. 1280) is as follows: "Every person who shall obtain, or attempt to obtain, from any other person or persons, any money or property, by means or by use of any false or bogus checks, or by any other means, instrument or device, commonly called the confidence game, shall be imprisoned in the penitentiary not less than one year nor more than ten years." The words, "or by any other means, instrument or device," were intended by the legislature to embrace any other means, instrument, or device than false or bogus checks, which comes within the meaning of what is commonly called the "confidence game." Maxwell v. People, 158 Ill. 248, 41 N. E. 995. "Confidence game is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler." Webst. Int. Dict. This definition was quoted and adopted in Maxwell v. People, supra. The Century Dictionary and Cyclopedia (volume 2, p. 1183) defines "confidence game" as "a kind of swindle practiced, usually in large cities, upon unwary strangers."

It is further said by counsel for plaintiff in error "that the means, instrument, or device relied upon by the state as indicating guilt must be that which is actually given or parted with for the money or property of another, and therefore the proximate cause inducing such person to part with his money or property." This proposition is clearly unsound. The confidence game is most frequently practiced by the use of cards, dice, or other means, instrument, or device, in which game the victim gets nothing, but is simply swindled out of his money by a trick, as was the case in Maxwell v. People and Van Eyck ́| v. People, 178 Ill. 199, 52 N. E. 852. The means used in this case were, to our minds,

clearly within the inhibition of section 98. While the point was not raised in Morton v. People, 47 Ill. 468, the language of Chief Justice Breese, who rendered the opinion in that case, clearly sustains the view here expressed.

Two witnesses were introduced by the prosecution (Berlizheimer and Brewer), and allowed to testify, over the objection of counsel for the defendants, to certain transactions by Du Bois similar to the one practiced upon Mrs. Fixen, and that ruling is assigned for error. In so far as that testimony tended to show a willingness on the part of the defendant Du Bois to commit other offenses similar to the one charged in the indictment it was incompetent, as repeatedly held by this court; but it is claimed by counsel for the people that it was not offered for that purpose, but to prove that said Du Bois had guilty knowledge. The first witness says: "I know the defendant Du Bois. I first saw him about the last of April or the first of May last year. I read the ad. in the Tribune. The ad. stated that by a $2,000 investment there would be $6.000 or $8,000 made within a few weeks, without any risk whatsoever, and a sure case. The first thing he said when he came to the house was that he had a brother in a large brokerage house in Denver. He wrote to him that by chance he had found out that there was a mine that contained a good deal of valuable gold, and he thought they could work that privately themselves, without the concern in Denver knowing anything about it." He then goes on to detail a scheme proposed by Du Bois as to sending dispatches, getting answers, etc., similar to that presented to Mrs. Fixen by Fegenbush. Brewer testified that he knew both the defendants, and that he saw Du Bois first. He says: "He came to my office in the last of July, 1900. I didn't know him before that. He came in with a friend of his, and said they had been sent by a friend of mine. The man who was with him went by the name of Ford. Du Bois said his name was William Davidson. My clerk was there. He heard part of the conversation. Du Bois said he had some stock hypothecated with some dealer in Dearborn street, and that he had been advised that the stock was becoming valuable, and he wanted to get it out. He said it would require $500 and interest to redeem the stock certificate, and that he had offers from several parties in Denver at a much advanced figure for the stock, and asked me if I would help him out, to the extent of getting this stock out for him and sending it out to Denver. He showed me correspondence, and gave me the names of parties in Denver to whom he was going to sell. He gave me the name of Haskell, Tripp & Bey, in Denver, in the Equitable Building." This was the name of one of the firms which was given Mrs. Fixen by Fegenbush. The witness proceeds: "So I wired to Haskell, Tripp & Bey, and received a response from them..

I have it here. I got it the same day. I just wired, would they honor a sight draft for this stock certificate." By this means Brewer was induced to advance the money to redeem the certificate. The dispatch from the Denver firm proved a forgery, as did those sent Mrs. Fixen, and Brewer lost the money which he invested. This testimony tended very strongly to show that Du Bois knew all about the means used by his confederate, Fegenbush, in obtaining the money from the prosecuting witness, and was not, as he claimed to be, the honest, innocent holder of the 60,000 shares of stock, which he simply sold without any knowledge of the conduct of Fegenbush. We think the evidence was clearly competent against Du Bois, and he alone is complaining of its admission.

The court, by an instruction to the jury, informed them that the evidence could not be considered as tending to prove that it was likely or probable that defendants committed the offense charged in the indictment, "but these facts may be considered by the jury, together with and in the light of all the facts and circumstances proved in the case, as evidence which may tend to show that the defendants knew the stock was false or worthless." Although evidence may tend to prove a defendant guilty of an offense not charged in the indictment, it is not for that reason incompetent if it fairly tends to prove the offense charged in the indictment. Farris v. People, 129 Ill. 521, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283; Williams v. People, 166 Ill. 132, 42 N. E. 749; Bottomley v. U. S., 1 Story, 135, Fed. Cas. No. 1,688; Cook v. Moore, 11 Cush. 213. Many other cases might be cited to the same effect. But even if the testimony of these two witnesses could be said to be incompetent, still, in view of the other evidence, the competency of which is not questioned, its admission could not be regarded as reversible error. "In cases where the evidence clearly justifies the finding, and it must have been the same had not certain incompetent evidence been admitted, the error in its admission will be no ground for a reN. E. 286; Williams v. People, supra.

A motion was made by the plaintiff in error to rule the prosecuting attorney to furnish a bill of particulars, which was denied, and this is assigned for error. Without reference to the point made by the people that the motion was too late, it was properly denied. It is well understood that whether or not the state shall be ruled to furnish a bill of particulars in a particular case is a matter within the sound legal discretion of the court. Here we are at a loss to perceive wherein a bill of particulars was necessary in order to protect the rights of the defendants. In Morton v. People, supra, on the question whether it was sufficient to charge the crime in the language of the statute, it is said (page 473, 47 Ill): "It is insisted by counsel for the plaintiff in error that the accused cannot know, from this indictment,

the exact charge against him, and the outer lines within which the evidence must be confined, and cannot know what evidence he will be required to meet, nor could a conviction under this indictment be pleadable in bar of another indictment for the same offense, nor can the court see in it that a legally defined crime has been committed. They insist that the term 'confidence game' has no definition in law or literature,' and that 'no fifty men can be found who will define alike the confidence game.' They further insist that the indictment should specify all the facts with such certainty that the offense may judicially appear to the court." After referring to the statute, the second section of which provides "that in every indictment under this act it shall be deemed and held a sufficient description of the offense to charge that the accused did, on," etc., “unlawfully and feloniously obtain, or attempt to obtain, (as the case may be,) from A B his money by means and by use of the confidence game," it is further said: "The nature and character of the so-called confidence game has become popularized in most of the cities and large towns, and even in the rural districts, of this broad Union, and is well understood, and this defendant was distinctly apprised by the indictment of what he was called upon to defend. The accusation is sufficiently identified by the name of the victim. This name must appear in every indictment on this statute, and, appearing there, no second indictment for the same offense could be successfully prosecuted. The conviction on this indictment could be always pleaded in bar of a second. We are of opinion that the offense is so set forth in the indictment that the accused can be at no loss to know what it is with which he is charged, and can so prepare his defense." And so in this case the judgment of conviction here sought to be reversed could be successfully pleaded in bar of a second prosecution for the same offense. It is idle to say that a bill of particulars was necessary in order to enable the defendants to prepare their defense. When they were apprised of the fact that they were charged with obtaining money of Laura G. Fixen by means and use of the confidence game, they were apprised of every fact connected with that transaction, as they clearly show by their own testimony in attempting to relieve it of its criminality.

Complaint is made of the conduct of the court in making remarks during the trial prejudicial to the rights of the defendants. We think this point is without substantial merit. He instructed the jury fully and fairly as to the law of the case, and, we think, protected the defendants in all their legal rights, securing them a fair and impartial trial.

The judgment of the criminal court is clearly right, and it will be affirmed. Judgment affirmed.

(200 111. 220)

EARNSHAW v. WESTERN STONE CO. (Supreme Court of Illinois. Dec. 16, 1902.) COURTS-APPELLATE POWERS-CONSTITU

TIONAL LAW.

1. The statute authorizing the appellate court to make a finding of fact, and declaring such binding on the supreme court, is not unconstitutional.

Error to appellate court, First district.

Action by Frederick O. Earnshaw against the Western Stone Company. There was a judgment in the appellate court (98 Ill. App. 538) reversing a judgment for plaintiff, and he brings error. Affirmed.

Phelps & Cleland (Delos P. Phelps, of counsel), for plaintiff in error. F. J. Canty and A. B. Melville (J. C. M. Clow, of counsel), for defendant in error.

HAND, J. This is an action on the case, brought by the plaintiff in error against the defendant in error to recover damages for a personal injury sustained by him while in its employ. At the time of the accident the plaintiff was in the employ of the defendant as an engineer, and was working in a hoisting shanty belonging to it, operating the machinery which controlled a derrick located near the defendant's stone quarry, which was used to lift stone out of the quarry, and while thus engaged he was injured. It is claimed by the plaintiff that the hoisting shanty was not properly ventilated and became overheated, and that by reason of such excessive heat he became unconscious, fell, and was injured. It was also claimed that the plaintiff had notified the defendant of the overheated condition of said hoisting shanty, and that defendant agreed to provide additional openings therein, through which to admit air, which it failed to do. A trial resulted in a verdict in favor of the plaintiff for $10,000, upon which judgment was rendered, and upon appeal to the appellate court for the First district the judgment was reversed, without remanding the cause, and the following finding of fact was made by the appellate court: "The court finds that there was no negligence of appellant which operated as a proximate cause of appellee's injury,"—which finding of fact, if valid, the plaintiff in error admits is conclusive against him, and bars his right of recovery, as it is conceded that no recovery can be had unless the negligence of the defendant in error was the proximate cause of plaintiff in error's injury. It is, however, contended that the appellate court had no power to reverse said cause without remanding the same for a new trial; and it is insisted that the statute which authorizes the appellate court to make a finding of fact, and provides that such finding shall be binding upon this court, is in conflict with the constitution of this state and the constitution of the United States, and is therefore void, and that such finding of fact should not be treated as binding upon this

court in its final determination of the case. The method of procedure followed by the appellate court in this case is legal and in accordance with a long line of decisions heretofore made by this court, and is now too firmly established to be. challenged or overturned.

The finding of the appellate court being binding upon this court, and it appearing therefrom that there was no negligence of defendant in error which operated as the proximate cause of plaintiff in error's injury, the judgment of the appellate court will be affirmed. Judgment affirmed.

(200 III. 126)

ETNA LIFE INS. CO. v. SANFORD. (Supreme Court of Illinois. Dec. 16, 1902.) LIFE INSURANCE-PAYMENT OF PREMIUMSWAIVER EXTENSION OF TIME INSTRUCTIONS-EVIDENCE-HARMLESS ERROR.

1. A finding by the appellate court, in an action on a life policy, that a provision therein that default in payment determined the policy, was waived by an agreement that time of payment should be extended, was binding on the supreme court, as the question whether facts constituting waiver existed was a question of fact.

2. In an action on a life policy, an instruction for defendant that the policy would lapse, and defendant not be liable, if the premium was not paid on a specific date, unless payment of it was waived, was properly modified by adding, "or the time for the payment of it was extended"; there being no claim that the payment was waived, but it being contended that there was a waiver of the condition calling for payment on the date specified.

3. A notice of premiums due on a life policy was answered by a son of the insured, stating that insured was absent, but expressing a willingness to pay, and asking advice. The company answered; inclosing notes, suggesting that the son sign them for insured, and then communicate with him and ascertain his wishes. The son signed and mailed the notes, but they were never received. Held to justify an, instruction submitting the issue of waiver of payment at the time stipulated in the policy, by an agreement to suspend.

4. Where time of payment of the premiums on a life policy was extended, the policy did not lapse, and insured could not be required to sign a certificate of good health.

The

5. A life insurance company, being notified of the absence of insured from the country, forwarded to his son notes for 60 days for the amount of premiums due; suggesting that he sign them for insured, and then communicate with insured, to ascertain his wishes. notes were signed and mailed, but never received by the company. Held, that as it was understood by the son and the company that the question as to whether the policy was to be kept alive for 60 days was to be left to insured, and the note, if delivered, would not operate as payment or extension, an erroneous instruction as to what constituted a legal delivery of the note was not reversible error.

Error to appellate court, Second district.

Action by Mary S. Sanford against the Etna Life Insurance Company. There was judgment in the appellate court (98 Ill. App. 376) affirming a judgment for plaintiff, and defendant brings error. Affirmed.

See 64 N. E. 377.

E. L. Clover and Wood & Oakley, for plaintiff in error. Samuel Richolson and Harold L. Richolson, for defendant in error.

CARTWRIGHT, J. Edward Sanford, of Morris, Ill., held a policy of insurance upon his life, issued by the Etna Life Insurance Company, plaintiff in error, for $5,000, payable to his wife, Mary S. Sanford, defendant in error, within 90 days after due notice and proof of his death. He died March 18, 1900, and the defendant in error brought an action of debt in the circuit court of Grundy county against the plaintiff in error to recover the amount of the policy. The defendant pleaded the general issue, and upon the trial, at the close of the evidence offered by the plaintiff, tendered to her $2,680 and costs of suit, which tender was refused, and the amount was deposited with the clerk of the court. There was a verdict for the plaintiff for $4,924.32, and judgment was entered on the verdict. The appellate court for the Second district affirmed the judgment, and a writ of error was sued out to review the judgment of the appellate court.

The policy was dated March 7, 1876, and the annual premium was $132.10, payable on February 10th of each year, with a provision that the policy should cease and determine if any premium should not be paid on or before the day it became due. The insured paid the first premium when the policy was issued, and 23 subsequent premiums, up to the one due February 10, 1900. The last of December, 1899, he and his wife went to Mexico, and he left his business in the care of a son, Frank Sanford, with no instructions in regard to the payment of insurance premiums which might fall due. On January 30, 1900, the defendant's agents in Chicago sent a notice by mail to the insured at Morris, Ill., informing him that the premium would be due on February 10, 1900. He held another policy for $500, which was paid up, the surplus of which was annually applied on the premium of the policy in question. The notice gave him credit for $3.62 for this surplus, and stated the amount due to be $128.48. In reply to that notice, Frank Sanford on February 5th wrote the following letter to the defendant:

"E. Sanford, Attorney, Morris, Ill. The Etna Life Ins. Co., No. 225 Dearborn St., Chicago, Ill.-Gentlemen: Yours received, saying that Mr. Sanford's insurance is due on the 10th of this month. He is in Mexico, and will not return until the first of March, and has left no order with me for the payment of the same, or, in fact, said nothing about it. Will you please inform me just what the amount is that will be due, and if it will be necessary for it to be paid on that date, or if it can wait until he returns, and then be paid. Please let me know what your rules are in regard to this, and oblige. You see it would be impossible for me to get any

word to him and an answer back by this date. Very truly yours, Frank Sanford."

To this letter defendant sent the following reply, inclosing therewith a note dated February 10, 1900, due on or before April 10, 1900, for $129.76, the amount of the premium and interest, for 60 days, which stated on its face that it was given to extend the time of payment on the policy:

"February 8/'00. Mr. Frank Sanford, Morris, Ill.-Dear Sir: We inclose herewith a note for an extension of sixty on the premium under policies Nos. 113,514 and 26,071, E. Sanford. We suggest that you sign these notes for E. Sanford, and in the meantime you can communicate with him and learn what his wishes are. Yours truly, Ira J. Mason & Son, Managers. "(Enc.)"

On February 10th Frank Sanford signed the note in his own name, and also signed his father's name to it. It was Saturday evening, and the mail was closed, and he intrusted the letter to a brother to mail. The brother mailed it on his return to Chicago, Monday, February 12th, by depositing the letter in the United States mail box in the Rock Island depot. The note and letter were never received by the defendant. The insured returned home on February 27, 1900, and on March 10th wrote to defendant the following letter:

"E. Sanford, Attorney, Morris, Ill. March 10, 1900. Ira J. Mason, Esq., Agent Etna Life Ins. Co., Chicago-Dear Sir: Upon my return from Mexico I find your letter stating that the premium on my policy No. 26,071 was due on February 10, 1900, but you kindly extended the payment thereof sixty days. Please accept my thanks for the courtesy, and I herewith inclose you Chicago draft for $130; not knowing just what the exact premium will be, and supposing there will be some interest added thereto. If this is not enough, please inform me immediately, and I will remit. If too much, you may credit the balance on the policy, or return, as you see fit. Yours truly, E. Sanford."

This letter contained the draft for $130 therein mentioned. On March 10, 1900,-the same day on which the letter was written inclosing the draft,-the defendant sent a letter to the insured, informing him that, if he desired to revive the policy which had lapsed, he should sign and return the inclosed form, No. 22, together with premium, within 30 days. Form 22 recited that the policy had lapsed for nonpayment of premium due February 10th, and that the signer, for the purpose of obtaining its revival, certified that he was in good health, and that there was nothing in his condition likely to impair his health and shorten his life, and it was agreed that, if anything therein represented should be untrue, the policy should be treated as if it had not been revived. The letters passed each other in the mail, and were each received on