by reason of its scandalous character and the methods which he adopted he had used successfully for purposes of intimidation, blackmail, and levying tribute upon his victims. Cy Hazlett, a depraved person without character, reputation, or shame, had worked on the paper as a reporter and writer, and had written many of the scurrilous articles which appeared in the paper. His testimony and scandalous writings occupy a great part of the 3,000 pages of the record. His wages were $15 a week, and he testified that in September, 1921, he told Looney he was not getting money enough. Looney told him the paper was not paying, but he would see that Hazlett was either put into some poker game or something else where he could make money. Later Looney said he had arranged to get Hazlett the exclusive punch board concession for Rock Island. They had a talk as to how the proceeds were to be distributed, and it was agreed that Hazlett should have 25 per cent., the defendant Pedigo (who was to be associated with him) 25 per cent., and Looney 50 per cent. Looney said that John K. Scott, city attorney, and Tom Cox, chief of police, were to be in on his 50 per cent. Hazlett and Pedigo put punch boards in many of the saloons and gaming houses in the fall of 1921, and collected from the keepers the proportion which they fixed as their share of the profits. Where punch boards were already installed they told the keepers that Hazlett had the exclusive punch board privilege, and the punch boards already in were taken out, and Hazlett's installed in their stead. The installation of Hazlett's punch boards began in October, 1921, and continued during November and December, but about January 1, 1922, they were all ordered taken out, and the record contains no evidence that after that date any punch boards were operated in Rock Island. knowledge of the plaintiff in error Cox, who was the chief of police; the use of police officers by Looney to make illegal arrests which he directed; the giving of a Ford car (which was in the custody of the police waiting to be claimed by its owner) to Looney, who sent it to his ranch in New Mexico; the public demand for the removal of Cox from office; the effort of the board of police commissioners to remove him, and of the plaintiff in error Schriver to prevent his removal; the publication by Dan Drost of a rival paper, the Tri-City Journal, of the same character as Looney's paper, The Rock Island News; the murder of William Gabel on July 31, 1922, and of John C. Looney, the son of John P. Looney, on October 6, 1922. These matters were all gone into at length and in great detail and it is claimed by the plaintiffs in error that they were all incompetent. They claim that the three counts of the indictment charge only a conspiracy in regard to the placing, maintenance, keeping, use, and operation of punch boards, and that the occurrences mentioned had no connection with any such purpose, but all arose after the conspiracy in regard to punch boards had accomplished its purpose and was no longer in existence. This construction of the indictment is incorrect. It is true that the indictment refers to only one conspiracy, and that conspiracy was with reference to punch boards, but the three counts vary in the statement of the purposes of the conspiracy. Besides the purpose to place punch boards in saloons and disorderly houses, the second count goes into further detail, and charges, in substance, the purpose of the conspiracy to use the powers of the offices of mayor, chief of police, and city attorney (1) to coerce the purchase and operation of punch boards by the keepers of saloons and disorderly houses; (2) to refrain from arresting and prosecuting such keepers; (3) to protect, save, and keep them harmless from molestation while engaged in keeping punch boards, slot machines, gaming devices, saloons, gaming houses, and houses of prostitution; and (4) to use the powers of said offices with corrupt partiality to keepers of saloons, gaming houses, and houses of prostitution. The third count charges as the purpose of the conspiracy the acceptance and receiving of bribes to induce the doing of the same things mentioned in the second count. Although the purpose of the alleged conspiracy in regard to punch boards had thus been carried out by January 1, 1922, much evidence was introduced by the prosecution, over the objection of the plaintiffs in error, of events occurring after that time, for the assumed purpose of proving the plaintiffs in error guilty of a conspiracy to use their official powers to refrain from arresting and prosecuting the keepers of saloons, gaming houses, and houses of prostitution, who were named, and other keepers whose names were unknown, and to protect, save and keep them free from police molestation and attack [9] The object of the evidence of things while they were engaged in keeping, main- occurring after January 1, 1922, and of othtaining, and operating saloons, gaming hous-er events having no connection with the places, and houses of prostitution, and to use ing of punch boards, was to prove the charge their official powers with corrupt partiality that the defendants conspired to protect, to the persons named and other keepers of save, and keep free from police molestation saloons, gaming houses, and houses of prosti- and attack the keepers of saloons and distution. Evidence was introduced as to the orderly houses. Any evidence which had a existence, maintenance, and operation of tendency to prove this charge was compesuch places during the year 1922, with the tent. Early in the trial Cy Hazlett testified, (145 N.E.) over the defendants' objection, to several | objection to parts of the exhibit, and overattempts to murder Dan Drost, which were ruled it as to others. The defendants never participated in by Hazlett, John C. Looney, waived their objection to the admissibility Frank Spangler, and Pedigo, according to of any part of the exhibit. When the court Hazlett's testimony, but no connection was overruled their general objection to the shown between these attempts and the con- whole exhibit they objected to certain parts, spiracy charged. Drost was not charged but they did not thereby waive their obwith being a conspirator, and there was no jection to the admissibility of the other parts evidence that he was. Hazlett gave as a rea- of the exhibit. The whole of it should have son for the attempts to kill Drost a remark been rejected. which Drost made about John P. Looney's daughter, which Looney would not tolerate, and Hazlett testified that John C. Looney spoke up and said, "I will fix him before I am through with him." The objection was made that these attempts were not connected with the charge against the plaintiffs in error but the court overruled the objection, saying that if the connection was not shown the evidence would be stricken on motion. No evidence connecting these attempts with the charge against the plaintiffs in error was introduced, and the court at the close of the evidence overruled the motion of the defendants to exclude the evidence in regard to them. [10] Two rifles, a double-barreled shotgun, a revolver, and some hand grenades, which were in Looney's office in his residence, were introduced in evidence. They were not admissible. They had no connection with the charge in the indictment and no tendency to prove the conspiracy charged or any act in relation to such conspiracy. The mere possession of firearms in Looney's home was not evidence against him. [11] Hazlett and L. C. Smith followed the plaintiff in error Cox and Helen Van Dale one night in 1921 while they were riding in an automobile. She was the divorced wife of Smith, a prostitute and keeper of a house of prostitution. Smith also testified to conversations with Cox in regard to permitting him to keep a house of prostitution, and to Cox's frequent visits to the house of Helen Van Dale, and his relations with her. It was not error to admit this evidence, which had a tendency to show Cox's knowledge and intent. [12] William Gabel was a saloon keeper in Rock Island. He was murdered on the street in front of his saloon just before midnight on the night of July 31, 1922. There were no eyewitnesses of the murder, and evidence was offered by the prosecution, and admitted, of all the circumstances attending the homicide. R. C. Goss was the narcotic agent of the federal government who had been investigating violations of the antinarcotic law in Rock Island prior to June 30, when he went to Chicago. He came back to Rock Island on July 20, and remained there until after the murder of Gabel. He saw Gabel in his saloon, and also at Goss' office in the post office, and Gabel delivered to him nine checks. He was staying at the Como Hotel, and evidence was admitted that cars were going back and forth around the hotel on the afternoon and evening of July 31, patrolling the block. Counsel for the people assume in their brief that Looney and his son were causing these automobiles to patrol the block for the purpose of shadowing the Como Hotel, where Goss, Unger, Hazlett, and Gabel were quartered. Albert H. Unger was a federal pro The defendant in error contends that the motive for the attempts to kill Drost was not any remark about Looney's daughter, but was hostility to Drost because of his publication of the Tri-City Journal with the avowed purpose of driving "the Rock Island vice syndicate and their blackmailing paper out of the tri-cities" and being after them "with both tooth and nail" until this is done. There is no contradiction of the evidence that the Tri-City Journal was not published until January 12, 1922, and that the attempts on Drost's life were in the fall of 1921. Parts of the Tri-City Journal itself, with its bitter vituperation and charges of blackmail, vice, and crime, were admitted in evidence over the objection of the plaintiffs in error, though they were not evidence of anything in regard to this case, but the malevolence of the publisher. It is argued on the part of the defendant in error that the articles from the Tri-City Journal were not admitted over the objection of the plaintiffs in error, but that such part of the publication as was submitted to the jury was admitted by agreement of the parties. The record shows that when the Tri-City Journal was offered as people's Exhibit 1 a general objection was made to it, reserving the right to make a particular and special objection later, and the court stated that he thought it was better to hold the exhibit until the state rested, and then pass upon the admissibility of all of it. When the state rested, the defendants' coun-hibition agent, who was at the Como Hotel sel renewed the objection to Exhibit 1, but the court overruled the objection, stating that he thought some things proper to be read to the jury. The defendants then moved that certain parts be not read to the jury, and after discussion the court sustained the on July 31, 1922, with Goss, and he testified that defendants Schriver and Cox came to Goss' room about 4 o'clock in the afternoon and talked with Goss in regard to an article in the Rock Island Argus newspaper relating to the conditions of vice in Rock Island. founded solely on imagination. There is no evidence as to who killed Gabel, no identification of any one engaged in the automobile patrol of the block or identification of any one of the cars. There is no evidence about the consideration of the checks given to Ortell. It may have been money borrowed, it may have been whisky, it may have been protection, or it may have been something different from any of these. The theory that any one of the plaintiffs in error was involved in the Gabel murder rests wholly on conjecture. The circumstances are suspicious, but nothing more, and it was error to admit the evidence in regard to this homicide and the checks. of the defendants was shown with it. Other evidence to which objections were made was also improperly admitted, but in view of what has been stated it is unnecessary to discuss the objections in detail. They asked Goss if he authorized the state- | there is no evidence of them, and they are ment, and he said he did. They also asked Goss if he had anything on the police department of Rock Island, and he said he had not. Harry Prince, a prohibition agent, who had come to Rock Island that day to make investigations of violations of the liquor law in Rock Island, Davenport, and other places, was also there. Unger saw John P. Looney about 5 o'clock in the evening opposite the Como Hotel, on the east side of the street, standing on the corner talking to a man about 20 minutes. Looney's car was standing about 25 feet south of Looney. About 6 o'clock in the evening two dark touring cars were going back and forth alongside of the hotel for quite a long while, about 3 or 4 minutes apart. Quite a number [14] It was also error to admit the eviof cars were parked opposite the hotel that dence in regard to the murder of John C. afternoon. One closed car in particular, | Looney on October 6, 1922. No connection with four or five men in it, remained there quite a while, with curtains drawn. Evidence was admitted of the continuous passing of the two cars around the block. There was no evidence identifying the cars or any person in them. Shots were heard about midnight, and immediately afterward Gabel was found lying in the street, dead. A physician was called, who testified in regard to his examination of the number and character of the wounds. Every detail of the homicide was introduced in evidence, but there was no evidence which identified the perpetrators of the crime. The checks given by Gabel to Goss were also introduced in evidence. They were for various amounts, from $75 to $500, all signed "William C. Gabel," of various dates from March 23, 1921, to June 20, 1922, all payable to Louis Ortell but one, which was payable to the order of "cash," and all except that one were indorsed "Lou Ortell." Two also bore the indorsement "John Looney." On the back of the check payable to cash was the indorsement, "Ortell did not take this check on account of check; wanted cash.-Wm C. Gabel." Evidence was also admitted that Prince, the federal prohibition agent, was shot that same night in Davenport. [13] All this evidence was incompetent. There was nothing connecting the homicide, or any of the circumstances testified in connection with it, with the charge for which the plaintiffs in error were on trial. The counsel for the defendant in error argued that there was nothing improbable about the assumption that all this was Looney's work, because he was so much the ruler of Rock Island and so immune from prosecution that he was able to do things openly, and made no secret of his design to put Prince out of the way. It is argued that Ortell was Looney's chief lieutenant in the bootlegging business, and that the circumstances satisfactorily show that the checks were given by Gabel as protection money to Ortell. These things may all be true, but [15] Error is assigned on the giving and refusing of instructions. Instruction 12 advises the jury as to the third count of the indictment, that this count charges a conspiracy to receive bribes for the purpose of causing the mayor, chief of police, and city attorney to furnish punch boards to keepers of gambling houses, and for the further purpose of doing the other acts mentioned in that count, in violation of their official duties. The instruction then charges that if the jury believe from the evidence under that count, beyond all reasonable doubt, that any two of the persons charged in that count conspired, combined, and agreed together that Harry M. Schriver, mayor, Thomas Cox, chief of police, and John K. Scott, city attorney, or any one of said officers, should use their official powers for the corrupt purposes mentioned in that count, the jury should find the defendant or defendants, whom the proof shows beyond all reasonable doubt guilty of such conspiracy, guilty. The instruction informed the jury that the count charged a conspiracy to receive bribes as an inducement to use official power for certain unlawful purposes, and it authorized conviction without the proof of any conspiracy to receive bribes, but upon proof of a conspiracy to use the official powers of the officers mentioned, corruptly and for their own gain, without reference to receiving bribes. In the language, "if you believe from the evidence under the count, beyond all reasonable doubt, that any two or more of the parties charged in the count were guilty of any of said conspiracies," the instruction assumes that the count charges more than one conspiracy, though the instruction itself previously states that the count charges a single conspiracy to receive bribes. The various pur (145 N.E.) defendants was properly admitted on question poses for which it is alleged the bribes were to be received are not stated as conspiracies of motive, under instruction that it could not to do those things, but are all dependent be considered for other purpose. upon the one conspiracy to receive bribes for the several purposes. The instruction was wrong, not only because it authorized a conviction on this count without proof of any conspiracy to receive bribes, but also because there was no proof in the record of a conspiracy to receive bribes. Objection is made to other instructions given on behalf of the people, but the criticism made of them is not of such a character as to require further discussion, in view of what we have said. Objection is also made to the refusal of a number of instructions asked on behalf of the plaintiffs in error. A great number of instructions were asked by the defendants, less than half of which were given, but enough were given to inform the jury fairly as to the questions of law arising in the case, and while some of the instructions refused state correct principles of law, so far as they were applicable to the case they were contained in other instructions which were given. The judgment will be reversed, and the cause remanded. Reversed and remanded. (314 III. 182) PEOPLE v. BILLBURG et al. (No. 15890.) 1. Grand jury 34-Fact that Attorney Gen- Fact that Attorney General and assistants took charge of and conducted deliberations of grand jury was not ground for motion to quash indictment. 2. Homicide 250-Evidence held to support conviction. In prosecution for murder, evidence that defendants armed themselves and sought out victim for purpose of killing him held to justify conviction. 3. Criminal law 935(1) Repudiation of testimony by state witness held not to entitle defendants to new trial. Where testimony of state witness, given on his own motion, differed only slightly from statements he made to assistant state's attorney, and was corroborated in part, fact that after he learned he was to receive no protection he repudiated his testimony did not entitle defendants to new trial. 4. Criminal law 673 (2) Evidence held properly admitted on question of motive, under instructions limiting effect for other purposes. In murder prosecution, evidence of suit for damages between father of victim and some of 5. Criminal law 371 (12)-Evidence showing motive not incompetent though proving other offenses. If evidence is admissible to prove motive, fact that it tends to prove guilt of other offenses does not render it incompetent. 6. Criminal law 341-Where crime result of conspiracy, some latitude permitted in proof of relations of parties and purpose of conspiracy. When crime is committed as result of conspiracy, some latitude is permitted in proof to show relations of parties, and object and purpose of conspiracy. 7. Homicide 166(1), 169(4)-Though there is direct evidence of guilt, state may prove crime result of conspiracy and motive for homicide. In prosecution for murder, though defendants' guilt was proved by eyewitnesses, it was competent for state to prove conspiracy and motive for homicide. 8. Homicide 234(5)-Evidence held to warrant conviction of particular defendant indicted as one of conspirators to commit murder. Evidence that particular defendant was conspirator and was present at killing held to warrant his conviction for murder. 9. Homicide 305-Instruction as to necessity of preconcert held correct; conspiracy being charged. Where evidence tended to show that murder was result of conspiracy and defendants contended that deceased was killed by third not error to instruct that it is not necessary person without any concert on their part, held that participation as accessory shall have been in preconcert with one committing deed; it being sufficient if there be community of purpose between one accused and direct actor at time homicide was committed. 10. Homicide 305-Instruction that act of one conspirator in furtherance of common design was act of all held proper. Where conspiracy alleged it was not error to instruct that if several persons conspire to do an unlawful act and death occurs in prosecution of common object, then, unless death was justified, all were guilty; act of one of them in furtherance of common design being act of all. 11. Homicide 305-Where evidence of conspiracy to murder, refusal to direct acquittal if third person killed deceased while acting independently, held error. Where evidence tended to show that homicide was result of conspiracy of defendants, who contended that third person killed deceased, held not error to refuse instruction that, if such person at time of shooting was acting independently of defendants, and not in combination or agreement with them, defendants could not be found guilty. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Where evidence tended to show that homicide was result of conspiracy of defendants, who contended that third person killed deceased, held not error to refuse to instruct that, to hold defendants for acts of third person, people must prove beyond reasonable doubt that they acted in concert with such person. 12. Homicide 305-Instruction as to neces-testified the elder Looney, when he saw them, sity of proving that defendants acted in con- exclaimed, "It has come; it is here; get out cert with third person, alleged to have killed of here." Another witness testified he exdeceased, held properly refused. claimed, "Here they come; let's get them." Another testified the elder Looney, when he stepped out of his car, said, "Come on, my boy; come inside with me; the jig is up." The number of shots fired was variously estimated at from 20 to 50. with three bullets, and with shot from a shotgun from his shoulder blades to the calf of his legs. The shotgun wounds were not of themselves sufficient to cause death, but one of the bullets penetrated the abdomen and perforated the intestines in 14 places, and was necessarily fatal. 13. Criminal law 829(1) - Refusal of instructions covered by instructions given not error. There was no error in refusing instructions covered by instructions given. Deceased was hit A reversal of the judgment is asked on Error to Circuit Court, Rock Island Coun- the grounds: (1) The court erred in overty; Franklin J. Stransky, Judge. Anthony W. Billburg and others were convicted of murder, and they bring error. Affirmed. Darrow, Sissman, Holly & Carlin, of Chicago, and Ben A. Stewart, of Rock Island, for plaintiffs in error. ruling the motion to quash the indictment; (2) the verdict is contrary to the evidence; (3) the court erred in the admission of testimony for the people; (4) the court erred in giving and refusing instructions; (5) defendants were prejudiced by inflammatory argument of counsel. [1] It is contended first by plaintiffs in erEdward J. Brundage, Atty. Gen., Ben S. Bell, State's Atty., of Rock Island, and Ed-ror that the indictment returned by the grand ward C. Fitch, of Springfield (Charles W. Hadley, of Wheaton, James J. Barbour, of Chicago, and George W. Wood, of Moline, of counsel), for the People. FARMER, J. Plaintiffs in error (hereafter called defendants), Anthony Billburg, George Holsapple, and George Buckley, with Daniel Drost, were convicted of the murder of John C. Looney, in the circuit court of Rock Island county. Billburg's punishment was fixed at 20 years in the penitentiary, and the punishment of the other three at 14 years in the penitentiary. John C. Looney was shot and killed about 2 o'clock in the afternoon of October 6, 1922, in front of the Sherman Hotel, on Seventeenth street, in Rock Island. Seventeenth street runs north and south, and the Sherman Hotel is on the east side of the street. Third avenue is an east and west street on the south side of the block, in which the hotel is located. Deceased, with his father, John P. Looney, were sitting in their automobile, which was parked facing the entrance to the Sherman Hotel, when defendants drove into Seventeenth street from the east, on Third avenue, in automobiles. They were armed, and turn ed north on Seventeenth street, drove up in the rear of the Looney car, and firing began very quickly. The elder Looney escaped into the hotel and was not injured. The deceased got out of his car and returned the fire, but was killed. When defendants drove up to the Looney car they were armed with revolvers and one or more shotguns and rifles. The Looneys evidently became alarmed and got out of their car. One witness jury is invalid because the grand jury was taken charge of and its deliberations conducted by the Attorney General of Illinois and his assistants, and that the court erred in overruling the motion of plaintiffs in error to quash the indictment. This same question, it is admitted, is also involved in the case of People v. Looney (No. 15736) 145 N. E. 365, and it was there decided contrary to the contention of plaintiffs in error. [2] The time of the homicide was about 2 o'clock in the afternoon. The place was one of the most public in the city of Rock Island. We shall not make any attempt to set out the evidence in detail. The proof abundantly warranted the conclusion that there was ill feeling between the elder Looney and Billburg, and that the bad blood existing between them grew out of the desire of the two men to control vice conditions in the city. The way they sought to control the running of gambling and sporting houses was to promise them protection for weekly payments of sums, ranging from $100 to $400. Looney was the proprietor of a newspaper, the Rock Island News, which was used as an instrument to enable him and those connected with him to carry out their scheme of protecting vice by levying tribute upon those who en gaged in keeping gambling resorts and houses of prostitution. For a time Billburg was enabled to avail himself of the use of the paper, and, as he expressed it, to "throw printer's ink" on any one who interfered or threatened interference with the business of protecting vice for a money consideration. Finally the relations became hostile between Looney and Billburg, and witnesses testified For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |