(315 III. 71) PEOPLE v. BEAL et al. (Supreme Court of Illinois. (145 N.E.) (No. 16234.) Dec. 16, 1924.) I. False pretenses 16-Selling car on which engine number has been removed, etc., does not justify conviction under indictment for confidence game. Selling car on which engine number has been removed, etc., contrary to Motor Vehicle Act, 236, does not justify conviction under indictment for confidence game. 2. Criminal law 905-Proper practice after conviction in case having no merit is to grant new trial. After conviction in case having no merit, better practice is to grant motion for new trial instead of rendering judgment on verdict and compelling accused to prosecute writ of error. I never had it since. No one had ever claimed the car as a stolen car. Rankin testified he examined the numbers on the car, and after purchasing it applied for and obtained from the secretary of state a license to use it. Fred Ewing, a deputy sheriff of Tazewell county, testified he, the sheriff, and another deputy went to Rankin's farm and took possession of the car. He testified they made a heat test to determine whether numbers had been removed from the engine; that the heat test disclosed another number, but the number was not brought out, so that he could tell what it was. He said it had two sets of numbers, which was disclosed by applying what he called the heat test. Arthur Van Buren, another deputy sheriff, testified he saw the heat test applied, and that it disclosed more than one number on the engine. Another witness testified that by the application of heat Error to Circuit Court, Tazewell County; other numbers showed up under the numbers T. N. Green, Judge. Alvin Beal and another were convicted of obtaining money by the confidence game, and they bring error. Reversed. on the engine, but they could not be read. admitted over objections of defendants' coun[1] There was much incompetent testimony sel which the court afterwards struck out upon motion. We deem it unnecessary to refer George W. Sprenger, of Peoria, for plain- to the testimony further than to say that the tiffs in error. Edward J. Brundage, Atty. Gen., E. E. Black, State's Atty., of Pekin, and Virgil L. Blanding, of Springfield, for the People. FARMER, J. Alvin Beal and Earl Buchanan were indicted, tried, and convicted in the circuit court of Tazewell county for the confidence game. The indictment charged defendants with unlawfully and feloniously obtaining from Lewis Rankin his money by means and by use of the confidence game. After the court overruled motions for a new trial and in arrest, defendants were sentenced to imprisonment in the penitentiary. The evidence introduced by the people to secure a conviction was in substance as follows: In June, 1923, defendants sold Lewis Rankin a second-hand Ford touring car. Beal was a stranger to Rankin. Buchanan was the son of a former neighbor of Rankin. He accompanied Beal to Rankin's residence on a farm, and they sold him the car for $250, which he paid in cash. Rankin demanded a bill of sale. Defendants procured and delivered to him a bill of sale signed by George Ruler. The bill of sale stated the purchase price was $410, and, upon Rankin inquiring why, they said that amount was given as the purchase price in order that Rankin might obtain insurance. Rankin kept and used the car until some time in September, 1923. He never made any complaint that the car did not operate well, nor did he ever complain that he had paid too much for it. Some time in September the sheriff of Tazewell county without any writ or process took possession of the car, and Rankin has reason the sheriff took the car from Rankin was the belief that the numbers on the engine had been changed. How he received the information does not appear, as no one made any claim to the car or in any manner interfered with Rankin's possession and use of it. The claim of the state is based on the proposition that the engine numbers had been changed; that the Motor Vehicle Law (Smith-Hurd Rev. St. 1923, c. 121, §§ 201-252) makes it unlawful for any one to sell, own, or possess a motor vehicle, the original engine number of which had been destroyed, removed, altered, or defaced. Admitting that defendants might have been guilty of violating section 236 of chapter 121 of our statutes for selling a car on which the engine number had been removed, altered, or defaced, it would not justify a conviction under an indictment for the confidence game. The case made by the proof of the people scarcely bears any resemblance to the elements necessary to constitute the crime of the confidence game. [2] Independent of any other errors committed on the trial, the judgment must be reversed, because the proof fails to establish the crime charged. This was recognized by the trial court, as shown by remarks made in overruling a motion for a new trial. The court said if he acted on his own judgment he would not hesitate a moment to set the verdict aside; that there was no legal evidence to warrant the verdict. The court said he wanted the Supreme Court to review the case, and that he was satisfied the judgment would be reversed without remanding, and that would put an end to the case. He advised the state's attorney that if he had any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 9. Criminal law more cases like this one to inform the grand | 8. Criminal law 531 (3)—Involuntary nature jury that there was no merit in it. The trial of extrajudicial confession held not shown. court's opinion was right that there is no Involuntary nature of extrajudicial confesmerit in this case, and we think, entertain- sion held not shown. ing that view, it would have been better to have ended the case in the circuit court by granting the motion for a new trial instead of rendering a judgment upon the verdict, thereby compelling defendants to prosecute this writ of error. 1 2. Larceny 56 That property is taken from owner's possession without his knowledge or consent is evidence of larceny. That property is taken from owner's possession without his knowledge or consent is evidence of larceny. 3. Larceny 64(1)-Possession of property recently stolen is evidence that possessor is thief. Possession of property recently stolen is evidence that possessor is the thief. 4. Larceny 56-That goods are missing does not establish larceny, in absence of proof of circumstances. Mere fact that goods are missing with no proof of circumstances does not prove larceny. 5. Larceny 41-Mere possession of goods under suspicious circumstances is insufficient to necessitate explanation of possession, in absence of evidence of larceny. Possession by porter earning $22 a week of 50 or 60 dresses worth $40 each, in absence of other evidence of larceny, does not call for explanation by him of his possession, nor is fact that some goods were missing from store sufficient to require such explanation, in absence of proof that such dresses were part of goods so missing. 6. Criminal law 535 (2) - Corpus dellcti may not be established by extrajudicial confessions alone. Corpus delicti cannot be proved by extrajudicial confessions alone, though such confes sion may be considered with other evidence, and when fully corroborated be sufficient to show commission of crime. 766-Instruction as to jury's right to pass on both law and evidence held improperly denied. Refusal of instruction that jury were judg es of law as well as of facts in criminal case, and entitled to pass on legal points to exclusion of court's instruction, if on their oaths they considered they knew what the law was. and if they were prepared to say the court had erred in its exposition of it, held errone. ously denied. 10. Criminal law 766-Instruction as to jurors' right to judge both law and facts held properly refused for lack of limitation. Requested instruction that jury were judges of both law and fact, which did not contain limitation that jurors must upon their oaths consider that they know what the law is, and that court is wrong in its exposition of it, held properly refused. 11. Criminal law 782(1), 7832, 799-Instruction that indictment and statements of counsel and withdrawn evidence were not to be considered held improperly denied. Instruction that indictment was mere for mal charge, and was not evidence, and that statements of counsel and withdrawn evidence improperly denied. should not be considered against defendant, held Error to Criminal Court, Cook County; George Fred Rush, Judge. Mike Maruda was convicted of larceny, and he brings error. Reversed and remanded. George B. Cohen and Abraham H. Cohen, both of Chicago, for plaintiff in error. Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Henry T. Chace, Jr., Edward E. Wilson, and Clyde C. Fisher, all of Chicago, of counsel), for the People. ment in the criminal court of Cook county DUNN, J. Upon the trial on an indictcharging Mike Maruda in one count with larceny and in another with receiving stolen goods, he was found guilty of larceny, and was sentenced to the penitentiary. He seeks by writ of error to reverse the judgment. Maruda was a night porter in the retail store of Marshall Field & Co. His wages were $22 a week. He was first employed in August, 1922, and remained in that employment until December, when he quit of his own accord. He was again employed in July, 1923, and remained in that employ 7. Criminal law 563-Corpus delicti may be ment until his arrest in September. His proved by circumstantial evidence. duty was cleaning in the different departCorpus delicti may be proved by circum- ments of the store, and his hours of work stantial evidence. were from 5:30 in the evening until 2 o'clock For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) At the trial a large quantity of merchandise was produced before the jury, from what source the record does not show None of it was identified as a part of the articles found at Maruda's home except 10 dresses which Crawford testified that he saw there, and some bags. None of these 10 dresses were identified as the property of Marshall Field & Co. All the testimony of Crawford offered on this question was excluded. The state's attorney was given permission to withdraw the witness for a moment. He left the witness stand and the courtroom, and was not further examined on this question. In regard to the bags referred to above Crawford testified that he found them in a trunk and in a bureau in Maruda's home and asked him whose they were, and he said they were Marshall Field's. Hopper testified, on cross-examination, that he could pick out three articles in the courtroom that he saw at Maruda's that night. "A traveler's watch, one of those bags, or a bag similar to those, and two pairs of ladies' white silk hose with a sort of a brownish tint at the heel" The watch was not included in the indictment, the bag was only a bag similar to those in court, and none of the articles were identified as the property of Marshall Field & Co. Hopper testified that he left all the merchandise inside the Randolph street door of Marshall Field & Co.'s store, and did not follow it beyond that point. There is no evidence in the record as to what became of the goods so left at the store, and no evidence that they were the same goods produced at the trial. in the morning. In the evening of September | to the taxicab in which the trip from the 13 Joseph Lillus, who was an employee of store had been made. The parties returned the McGuire & White Detective Agency, as- to the store, and, after leaving the merchansigned to duty regularly in Marshall Field dise inside the Randolph street door of Mar& Co.'s retail store, telephoned to John J. shall Field & Co.'s store, Maruda was taken Hopper, another employee of the detective to the detective bureau. agency, to come to the store. Nathaniel L. Crawford, who was the superintendent's assistant in the store, was also summoned there. These three met during the evening in Hopper's office in the department of the store known as the special service department. Maruda was there, with Hopper and Lillus and another man, whose name does not appear. Crawford testified that he found Maruda sitting in his office with Hopper, who told Crawford that the man was under arrest. Crawford asked Maruda what he had been doing, and Maruda said he had taken a couple of dresses, which were at his home. Crawford asked, "How did you get them out?" He said, "I put them in my pocket and wrapped them around my body." Crawford asked, "Have you got anything more at your house that you have taken?" Maruda answered, "No," and Crawford said, "Well, Mike, we will have to go out and see whether you have got anything there or not." Maruda said, "All right; you can come out." Hopper testified that he asked Maruda if he had any merchandise at his home that was the property of Marshall Field & Co. or property which he had stolen from the stock. Maruda answered that he had; that about a month or two before he had taken 2 dresses and given them to his wife, and a little later had taken a third dress which his wife wanted, and he had perhaps taken | some small articles from different places on the main floor. Hopper then said that they were going to search his home; that he could give them authority to search it, or they would get a search warrant in the morning. Maruda said that he wanted them The state introduced evidence to prove to search his home; that they would find the ownership of Marshall Field & Co. of nothing there but his own goods. Crawford, some of the articles produced on the trial. Hopper, Lillus, Maruda, and the other man Mrs. Ryan, a saleswoman in the moderatelythen about midnight went in a taxicab to priced dress section, identified four dresses Maruda's home, on the second floor of a and no more, saying that she recognized building at 3201 South Morgan street. Hop- them as belonging to Marshall Field & Co., per testified that when they entered Mrs. and had seen them in her section. Then she Maruda was sitting on the floor with a quilt stated the value of them. The dresses were and a lot of small merchandise; that they not identified as coming from the possession also found there about 20 dresses, the same of Maruda, and Mrs. Ryan testified only, number of ladies' bags and pocket bags, "I know they were our dresses, but whether razors, opera glasses, shoes, and all sorts of they were sold or not I don't know." Lena merchandise; that he talked with Maruda | Ledrich, who had charge of the children's while they were at the house, and asked him where he got certain articles which Hopper had at the time in his hand, and Maruda said he bought some of the articles on Halsted street, some he stole at the store of Marshall Field & Co., and some he found. Crawford testified that they found there 50 or 60 dresses. The merchandise found at Maruda's home was gathered up in bundles and taken out in suit cases, bags, and boxes hosiery section, identified hosiery as the property of Marshall Field & Co., and testified that similar hosiery was missing last summer, which was the summer of 1923, during the months of July and August. Jacob B. Schoninger was department manager and buyer in the cutlery and leather goods department. He identified various articles as the property of Marshall Field & Co. which were produced before the jury-a shaving mirror, cigar and cigarette holders, and | statement. The law is well settled that the pocket knives-and testified to their value. corpus delicti cannot be proved by extraHe stated that they had no more trouble judicial confessions alone. Williams v. Peolast summer than they usually had in the ple, 101 Ill. 382; Andrews v. People, 117 ILL way of missing property; that they were | 195, 7 N. E. 265; Bartley v. People, 156 Ill. always missing things from time to time. Marie Lehmicke testified that some of the handbags produced were the property of Marshall Field & Co., and some of them were not. She testified that goods were missing frequently. None of these last four witnesses from the store of Marshall Field & Co. had any knowledge of any larceny or crime, of any particular articles being missing, of anything being missing under circumstances indicating it might have been stolen, or identified any article as having been missing from the store or stolen. 234, 40 N. E. 831. It may, however, be proved by circumstantial evidence (Campbell v. People, 159 Ill. 9, 42 N. E. 123, 50 Am. St. Rep. 134; People v. See, 258 Ill. 152, 101 N. E. 257; People v Goodwin, 263 Ill. 99, 104 N. E. 1018), and an extrajudicial confession may be considered, in connection with the other evidence, to establish the corpus delicti, and, if the evidence of other facts and circumstances so fully corroborates the confession as to show the commission of the crime beyond a reasonable doubt, may be sufficient (Johnson v. People, 197 Ill. 48, 64 N. E. 286). It is not sufficient, however, in this case, because of the failure to [1-4] There was no proof of the corpus delicti in this case that a larceny had been committed-aside from the alleged state-identify the property found in Maruda's pos ments, admissions, or confessions of Maruda, which he wholly denied. The fact that property has been taken from the possession of the owner without his knowledge or consent is evidence of a larceny; that such property so shown to be stolen is soon afterward found in the possession of another is evidence that he is the thief. The testimony, however, does not show that the articles produced in evidence before the jury or the articles found in Maruda's possession were taken from the possession of Marshall Field & Co. without their knowledge or consent. The evidence is that some articles of merchandise were missing from the Marshall Field & Co. store, but not that the articles about which testimony was given on this trial were so missing The fact that some pairs of stockings bearing the Marshall Field & Co. brand of "Burlington" were missing, or even were stolen, would not cast upon every person who might be found within a short time afterward with a pair of Burlington stockings in his or her possession the burden of explaining that possession. The mere fact that goods are missing, with no proof of the circumstances, does not prove a larceny. It must be shown that their taking was without the knowledge or consent of the owner. [5-7] The possession of 50 or 60 dresses, each worth $40, by a night porter working for $22 a week, without any other source of income, would afford ground for suspicion that they might have been stolen, but, in the absence of other evidence of a larceny, would not call upon the person in possession to explain his possession. The fact that some goods had been missing from the store would not call upon the plaintiff for explanation of his dresses without proof that they were part of the goods so missing. In this case it is not shown that the plaintiff in error was in possession of the property of Marshall Field & Co., or that the property of which he was in possession had been stolen from Marshall Field & Co., by evidence other than his own session as that of Marshall Field & Co., and the failure to identify the property testified about on the trial as that which was found in Maruda's possession. [8] It is argued on behalf of the plaintiff in error that the statements made by Maruda were not voluntary; that he was illtreated by Hopper, and was unable to understand what was said to him, or to make himself understood in the English language, and therefore his statement was not admissible in evidence. He is a Pole, who speaks the English language with difficulty, and the conversations testified to by Crawford and Hopper were carried on in the English language. There is no evidence of any duress exercised on the plaintiff in error except his own testimony, and this is denied by Crawford and Hopper. According to their testimony Maruda made his statement voluntarily and freely, and understood what was said to him, and knew what he was saying. There is no reason for holding the statement was not voluntarily made. [9] Complaint is also made of the refusal of instructions. It was error to refuse the ninth instruction, which was as follows: "In this state, the jury are the judges of the law as well as of the facts in a criminal case, and are entitled to pass on the legal points involved in the case to the exclusion of any instructions of the court, if they, upon their oaths, consider that they know what the law is. If, under all the circumstances, they are prepared to say that the court is wrong in its exposition of the law, the law has given them that right.' The giving of this instruction was approved in People v Kuchta, 296 Ill. 180, 129 N. E. 528. [10] Instruction 18 was that the jury are the judges of the law as well as the facts in this case. It was properly refused. The statement is not the law except subject to the limitation contained in instruction No. 9. (145 N.E.) [11] Instruction 17 was refused. It is as 5. Criminal law 8082-Instruction on selffollows: "The indictment in this case is a mere formal charge, and is not in itself any evidence against the defendant. Statements of counsel are not evidence, and should not be so considered. Of fers to prove certain alleged facts which may have been made in your presence are not evidence, and you should not take the same into consideration, nor allow yourselves to be in any manner influenced thereby Neither should the jury consider any testimony stricken out by the court." It should have been given. The proposition contained in the first sentence was included in instruction 7, which was given, but no other part of the instruction was covered by the instructions given. The last sentence, particularly, was important to the plaintiff in error, because certain evidence which had been given in regard to the ownership of the property was afterward stricken out by the court, and the jury should have been instructed that they were not to consider that testimony. (314 Ill. 413) defense in language of statute held improper. In homicide prosecution, instruction on selfdefense in the language of Cr. Code, § 149, held improper, in that it gave jury no accurate knowledge of the law of self-defense. Error to Criminal Court, Cook County; Harry A. Lewis, Judge. George Garines and others were convicted Reversed of murder, and they bring error. and remanded. Thomas D. Nash, Michael J. Ahern, and James J McDermott, all of Chicago (Thomas E. Swanson, of Chicago, of counsel), for plaintiffs in error. Edward J. Brundage, Atty Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson, Clyde C. Fisher, and Henry T. Chace, Jr., all of Chicago, of counsel), for the People. THOMPSON, J. The homicide, which is The judgment will be reversed and the the subject of investigation in this prosecucause remanded for a new trial. tion, occurred in a feud between two groups Reversed and remanded. of Greek gamblers operating near the intersection of Halsted street and Blue Island avenue, in the city of Chicago. This prosecution is for the killing of Anastasis Visvardis about 4:30 o'clock in the afternoon of June 29, 1923. He was a member of the faction headed by George Charahus, "king" of the Halsted street Greeks, who was killed about the same time. Plaintiff in error Angelo Barbas was chief of the Greek faction to which plaintiffs in error George Garines, Dennis Mandolatos, and Sam Vithoulkas belonged. Plaintiffs in error were indicted and tried for the killing of Visvardis, and were convicted of murder and their punishment fixed at life imprisonment. PEOPLE v. GARINES et al. (No. 16177.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Criminal law 747-Credibility of witnesses for jury. Where testimony of witnesses for prosecution was directly contradictory of testimony of witnesses for defendants, it was for the jury to determine which set of witnesses was telling the truth. 2. Criminal law 1165(1)-Record must be reasonably free from prejudicial error, where evidence conflicting. Where evidence is conflicting, the record, to sustain conviction, must be reasonably free from substantial and prejudicial error. 3. Criminal law 656 (5)-Court's remark leaving jury to think court regarded defendant's testimony as "a lot of cooked-up stuff" held prejudicially erroneous. Where counsel for prosecution referred to testimony of defendant's witness as "a lot of cooked-up stuff," court's remark, "We all know what it is; we are not blind," held improper and prejudicial to defendant, being calculated to give the jury the impression that the court thought defendant's testimony "a lot of cookedup stuff." 4. Criminal law ☺11701⁄2(1)—Improper Impeachment of witnesses who gave material testimony, held ground for reversal. Improper impeachment of witnesses who gave material testimony, held ground for reversal. The evidence for the state shows that plaintiffs in error conspired to kill deceased, and that pursuant to this conspiracy Garines killed Visvardis in front of a coffee house conducted by Mandolatos at 740 South Halsted street, and that at the same time Barbas killed Charahus inside the same coffee house. According to the witnesses for the state, both parties killed were unarmed at the time, and the killing was wholly unprovoked. Eight bullets entered the body of Visvardis and three that of Charahus. Plaintiffs in error Garines and Barbas claim that the shooting was in self-defense, and Mandolatos and Vithoulkas claim that they were merely witnesses to the killing of Charahus, and that they had conspired with no one to kill Visvardis. The evidence for the defense is to the effect that Visvardis assaulted Garines with a revolver the night before the day of the shooting, and that Garines saved his life by jumping behind an automobile parked in the street while other For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |