{ "id": 3324005, "name": "The People of the State of Illinois, Defendant in Error, v. John Bain et al., Plaintiffs in Error", "name_abbreviation": "People v. Bain", "decision_date": "1934-03-06", "docket_number": "Gen. No. 36,728", "first_page": "215", "last_page": "241", "citations": [ { "type": "official", "cite": "274 Ill. App. 215" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 Ill. 594", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5167824 ], "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill/321/0594-01" ] }, { "cite": "268 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4795942 ], "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill/268/0328-01" ] }, { "cite": "352 Ill. 537", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5296284 ], "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ill/352/0537-01" ] }, { "cite": "343 Ill. 480", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5255530 ], "weight": 2, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/ill/343/0480-01" ] }, { "cite": "228 Ill. 589", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5629067 ], "pin_cites": [ { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill/228/0589-01" ] }, { "cite": "209 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3302346 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill/209/0215-01" ] }, { "cite": "256 U. S. 465", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3679685 ], "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/us/256/0465-01" ] }, { "cite": "291 Fed. 501", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3622793 ], "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/f/291/0501-01" ] }, { "cite": "3 F. (2d) 786", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1686919 ], "pin_cites": [ { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/f2d/3/0786-01" ] }, { "cite": "221 U. 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S. 204", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3687922 ], "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/us/249/0204-01" ] }, { "cite": "219 Fed. 917", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3891488 ], "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/f/219/0917-01" ] }, { "cite": "113 Ill. 531", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2866280 ], "pin_cites": [ { "page": "535, 536" } ], "opinion_index": 0, "case_paths": [ "/ill/113/0531-01" ] }, { "cite": "124 Ill. 399", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2930253 ], "weight": 2, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill/124/0399-01" ] }, { "cite": "242 Ill. 284", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5653869 ], "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill/242/0284-01" ] }, { "cite": "214 Ill. 421", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3316114 ], "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill/214/0421-01" ] }, { "cite": "22 Ill. 314", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281860 ], "pin_cites": [ { "page": "316, 317" } ], "opinion_index": 0, "case_paths": [ "/ill/22/0314-01" ] }, { "cite": "347 Ill. 562", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5271637 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/ill/347/0562-01" ] }, { "cite": "247 Ill. 394", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3397944 ], "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill/247/0394-01" ] }, { "cite": "280 Ill. 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890968 ], "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill/280/0032-01" ] }, { "cite": "204 Ill. App. 24", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2944862 ], "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill-app/204/0024-01" ] }, { "cite": "352 Ill. 262", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5294832 ], "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill/352/0262-01" ] }, { "cite": "272 Ill. 592", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4831753 ], "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill/272/0592-01" ] }, { "cite": "68 Ill. 271", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627967 ], "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/ill/68/0271-01" ] }, { "cite": "328 Ill. 332", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5197287 ], "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill/328/0332-01" ] }, { "cite": "239 Ill. 91", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 849015 ], "weight": 4, "pin_cites": [ { "page": "103" }, { "page": "103, 106" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill/239/0091-01" ] }, { "cite": "150 Ill. 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5470519 ], "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill/150/0441-01" ] }, { "cite": "303 Ill. 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5006410 ], "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill/303/0112-01" ] }, { "cite": "343 Ill. 78", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5254780 ], "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill/343/0078-01" ] }, { "cite": "329 Ill. 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5202134 ], "opinion_index": 0, "case_paths": [ "/ill/329/0104-01" ] } ], "analysis": { "cardinality": 1457, "char_count": 46218, "ocr_confidence": 0.509, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09336355131129266 }, "sha256": "ab609ecf0ba8b5b916d9cdd8949f5245eafa0ca70e9d48416f6007434f3df8f6", "simhash": "1:8ee9a540c63eaf71", "word_count": 7838 }, "last_updated": "2023-07-14T17:53:58.051062+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, v. John Bain et al., Plaintiffs in Error." ], "opinions": [ { "text": "Mr. Justice Gridley delivered\nthe opinion of the court.\nThis cause originated by the return of an indictment in the criminal court of Cook county on February 17, 1932, charging the six defendants with conspiracy to obtain money and other property by false pretenses, etc. The defendants, Mulholland and Buhlig, were granted a severance and, on the trial of the other four defendants, they testified as witnesses for the State. A jury having been waived by agreement the trial was had before the court during the summer of 1932, at which much oral and documentary evidence was introduced. The transcript of the record consists of more than 10,000' pages, and the printed abstract of more than 800 pages. For the State 114 witnesses testified. Each of the four defendants testified in his own behalf and defendants called more than 70 witnesses. The prosecution arose out of the closing on June 9, 1931, of 12 Chicago banks, known as the \u201cBain Banks,\u201d which were practically under the control of the principal defendant, John Bain. The 12 banks were organized under the laws of the State of Illinois and were named and known as: West Englewood Trust & Savings Bank; Armitage State Bank; Auburn Park Trust & Savings Bank; Brainerd State Bank; Bryn Mawr State Bank; Chatham State Bank; Chicago Lawn State Bank; Elston State Bank; Ridge State Bank; Stony Island State Bank; West Highland State Bank, and West Lawn Trust & Savings Bank. John H. Bain and Robert A. Bain are sons of John Bain, and W. Merle Fisher is his son-in-law. At the conclusion of the trial on August 25, 1932, the court entered the following findings and judgment:\n\u201cThat the People have not sustained by evidence beyond a reasonable doubt, within the rule laid down in People v. Clark, 329 Ill. 104, that the defendants conspired as charged in the indictment to receive deposits knowing the bank to be insolvent, or to keep the banks open to receive deposits when they knew the banks were insolvent as charged in other counts of the indictment, and the court finds that the defendants cannot be held guilty under those counts\u201d; that \u201cas to all other counts in the indictment, the court finds each and every one of the defendants guilty as charged and fixes the punishment of the defendant, John Bain, whose age the court finds to be 64, at imprisonment in the penitentiary for a term of not less than one year or more than five years; and the court adjudges that the defendants, John H. Bain, W. Merle Fisher and Robert A. Bain, each be condemned to pay a fine of one thousand ($1,000) dollars\u201d; and that \u201cthe court further finds that the defendant, John H. Bain, is 34 years of age, that the defendant, W. Merle Fisher, is 43 years of age, and that the defendant, Robert A. Bain, is 29 years of age.\u201d\nOn March 16, 1933, the present writ of error was sued out and on the same day it was here ordered that the writ 'be made a supersedeas upon the four defendants respectively entering into certain recognizances, with sureties, with the sheriff of Cook county. After briefs had been filed, the People, by the State\u2019s attorney, filed a written motion, accompanied with suggestions and affidavits, \u201cto strike from the transcript of the record the two original bills of exceptions incorporated therein.\u201d On November 16, 1933, after counter suggestions and counter affidavits had been filed, the motion was reserved to the hearing. During the oral argument on January 3, 1934, leave was given to counsel for defendants to present memoranda of additional suggestions and authorities bearing upon one of the points made in their original printed brief, and the memoranda were presented and have been considered.\nThe indictment consisted of 73 counts. Those on which the court found that the four defendants could not be held guilty are numbered 27 to 50, inclusive, and they need not now be considered. The other 49 counts, on all of which the court found the defendants guilty as charged, may be divided for convenience into three groups, of which counts 1 to 14, inclusive, form group No. 1; counts 15 to 26, inclusive, and counts 51 to 62, inclusive, group No. 2; and counts 63 to 73, inclusive, group No. 3.\nOf said group No. 1, count 1 charges the four defendants, and Mulholland and Buhlig, on June 9, 1931, in said county, with unlawfully, fraudulently and maliciously conspiring together, and with other unknown persons, to unlawfully obtain from the public generally the sum of $13,000,000, and divers checks, drafts, notes, bonds, and other instruments in writing for the payment of money of the value of $13,000,000, from the public generally, \u201cby false pretenses, and to cheat and defraud the public generally, . . . contrary to the statute,\u201d etc. (i. e., section 46 of chapter 38, Cahill\u2019s St. 1931, if 116, p. 1010.) In count 2 the same charges are made as being \u2018 \u2018 contrary to the law, \u2019 \u2019 etc. In count 3, the defendants are charged with unlawfully, etc., conspiring together, and with other unknown persons, to unlawfully obtain \u201cfrom stockholders, depositors, customers, creditors,\u201d and persons about to become such, \u201cof the West Englewood Trust & Savings Bank,\u201d an Illinois banking corporation, \u201cthe sum of $3,000,000,\u201d etc., and divers checks, etc., of that value, belonging to said stockholders, etc., \u201cby false pretenses, etc., contrary to the statute, \u2019 \u2019 etc.' In counts 4 to 14, inclusive, the charges are substantially the same as to each of the 11 other Bain banks.\nOf group No. 2, count 15 alleges in substance that on said date, etc., John Bain was and had been for a long time the president and a director of 'the West Englewood Trust & Savings-Bank; that John H. Bain was and had been an officer of the bank and an assistant of John Bain, performing certain powers and duties as president; that W. Merle Fisher was and had been cashier and a director of the bank; and that Walter IT. Buhlig was and had been a director of the bank and the chairman of its Discount and Finance Committee. And it is charged that the six defendants, on said date, etc., knowingly, wilfully, fraudulently, etc., conspired, etc., wrongfully, etc., as officers or agents of said bank, \u201cto buy, discount and purchase,\u201d or cause to be bought, discounted and purchased, for and on behalf of said bank, from John Bain and the other five defendants, and from firms and corporations which the six defendants \u25a0 controlled or were interested in, \u201cdivers notes, mortgages, and real estate property ... at an exorbitant, extortionate and excessive price,\u201d far in excess of their value, as they well knew, \u201cand to thereby collusively obtain,\u201d without consideration from the bank, \u201cfor themselves and for said firms and corporations, . . . the funds, money and property of said bank, and to thereby defraud said bank, contrary to the law,\u201d etc. In counts 16 to 26, inclusive, the charges are substantially the same in relation to each of the 11 other banks. Count 51 charges a conspiracy of certain defendants named as officers of the West Englewood Trust & Savings Bank, and of other defendants, \u201cto cheat and defraud said bank of its funds\u201d and to induce it \u201cto make excessive loans\u201d to persons insolvent or approaching insolvency without receiving security therefor, and to make or cause to be made to themselves, as officers and agents of the bank, or to companies in which said defendants were interested, excessive loans, when they or the companies were insolvent, \u201cthereby making such loans bad, desperate and worthless,\u201d as they well knew, and \u201cthereby to injure said bank and to defraud it of its funds, money and property, contrary to the law, \u2019 \u2019 etc. In counts 52 to 62, inclusive, the charges are similar except that the other 11 banks, respectively, are named.\nOf group No. 3, count 63 charges a conspiracy of certain named defendants as officers of the West Englewood Trust & Savings Bank, and of other defendants, to make for the bank, or cause the bank to make, loans to its officers or salaried employees, \u201cwithout first having an application for said loans made and approved by the board of directors of said bank, as to security and amount, contrary to the law,\u201d etc. In counts 64 to 73, inclusive, the charges are similar, except that 10 of the other 11 banks, respectively, are named.\nOn February 24, 1932, the four defendants were arraigned and pleaded not guilty. Thereafter they were given leave to withdraw their plea, and they filed a written motion to quash the indictment. Numerous grounds for the motion are specified, among which are that some of the counts are \u201cvague, indefinite and general,\u201d and \u201cfurnish no bases from which defendants may apprehend the number, time, place or character of the transactions, if any, to be produced in evidence against them\u201d; that some are bad for duplicity; that some, while purporting to do so, do not sufficiently charge the offense of conspiracy at common law; and that some, while charging the defendants with conspiracy to commit claimed unlawful acts as officers of the respective banks, do not allege that all defendants had any official connection with the particular bank. Subsequently, after a hearing, the court denied the motion to quash.\nOn June 13, 1932, the State\u2019s attorney filed a bill of particulars in the cause. Neither the record nor the abstract discloses that at any time after its filing defendants made any objections to its sufficiency, or made any motion for the filing* of an additional or more specific bill of particulars. The bill of particulars, as filed, is as follows:\nAs to counts 1 and 2 of the indictment, the members of the public intended to be defrauded by the conspirators \u201cinclude the class of persons referred to in counts 3 to 14, inclusive, and also the customers and stockholders of the Lews Company and of John Bain, Inc., a corporation, and also persons who were owners of securities, and the various banks who were also holders of securities and indebtedness of the various trusts in the bank, in which trusts the defendants, or either of them, were interested, to wit:\n\u2018 \u2018 The various trusts in the various banks, numbered as follows: 4, 7, 74, 185, 190, 625, 721, 725, 915, 1032, 393, 825, 833, 1200, 1240, 1202, 687, 1060, 1063, 1090, 1051, 1006, 1002, 852, Cn-211, CB 213, 1032, 131, 149, 120, 56, 51, 49, 37, 31, 28, 8 and 6.\u201d\nThe false pretenses, the means by which defendants intended to effect the consummation of the conspiracy as alleged in counts 1 to 14, inclusive, \u201cinclude false pretenses with reference to and concerning the value and worth of assets and resources and liabilities of the various banks mentioned, and of the Lews Company and of John Bain, Inc., and of the Trusts mentioned, and as to the solvency of the banks and worth of their various assets, and of their capital, surplus and undivided profits, and of the value of the properties and assets of the trusts mentioned, and of the firms and corporations and concerns and enterprises hereinafter mentioned and in which the various defendants or either of them were interested, which said indebtedness and securities and obligations were purchased by the divers banks and either retained or sold to divers members of the public. \u2019 \u2019\nThe conspiracy to purchase, for and on behalf of the banks from the defendants and each of them and from the firms and corporations which they controlled or were interested in, notes, mortgages, bonds, etc., as alleged in counts 15 to 62 inclusive, \u201ccomprises premises commonly known as:\u201d (Here follow the names of seven bank premises); the \u201creal estate bond issues commonly known as: \u201d (Here follow the names of 31 bond issues by name of building, etc.); the \u2018 \u2018 securities and obligations written against the divers trusts herein mentioned; the stock issues of John Bain, Inc., the Lews Company, Gage Park Safe & Securities Company, Stony Island Safe & Securities Company, Auburn Park Safe & Securities Company, Chatham Building Corporation, Chicago Lawn Building Corporation, Highland Building Corporation, Hop stein Safe & Deposit Company; and the real estate bought on behalf of the banks also include the real estate bought from the building corporations and occupied by the various banks as bank buildings; the Drexel Western Investment Company and the Caledonia Company; and all notes, signed by defendants and by the various directors of the banks, and by John Bain, Inc., and by the Lews Company, and by all officers of the banks, which have never been paid except by renewal or giving something in lieu of cash by the various parties, firms and corporations herein named, and which are now in the banks as assets of the various banks.\u201d\nUnder counts 51 to 62, inclusive, \u201cthe State will introduce the loans and discounts, stocks, bonds and other evidences of indebtedness and property, and purchases of the same made by various officers and directors of the various banks and from various firms, individuals and corporations above mentioned, and none others. \u2019 \u2019\nCounts 63 to 73, inclusive, in which the conspiracy is charged to make loans to the various officers of the banks named, and to the divers trusts, firms and corporations in which the defendants were interested or which they controlled, \u201crefer to the various persons, trusts, firms and corporations, building enterprises and real estate properties herein mentioned, and none others.\u201d\nIt appears from an interlocutory bill of exceptions (which is marked by the trial judge as having been presented on July 20, 1932, and which is contained in the present transcript as finally certified by him) that during June, 1932, and before the trial, a written motion was presented by one of the defendants, John Bain, to suppress certain evidence and certain of his personal books and records; that the motion was supported by his affidavit and that of James J. G-ammonly, his bookkeeper; that an assistant State\u2019s attorney, Edwin J. Baber, presented an answer to the motion and a counter affidavit, sworn to by him; that thereafter a hearing was had on the motion, at which, in addition to the affidavits and answers, certain testimony of Grammonly and of one Edward C. Barry, offered by the State, was presented; that defendants did not call any witnesses; and that at the conclusion of the hearing the court denied the motion, to which ruling counsel for John Bain excepted. The affidavit of Bain is in substance as follows:\nThat prior to November 3, 1931, there was pending in the circuit court of Cook county a chancery suit, entitled, Seaborg v. John Bain, Inc., a corporation, and others; that on November 3, 1931, affiant was called as a witness and testified before Judge Feinberg; that he was examined about a stock subscription he had made to the capital stock of John Bain, Inc.; that he then stated that all of his books and papers had been turned over by him to his bookkeeper (Gammonly) and that if the court desired he would order Gammonly to bring them into court, but suggested that Gammonly be subpoenaed; that after the books, etc., had been produced, the court ordered them turned over to an accountant employed by the Straus National Bank & Trust Co., receiver for John Bain, Inc.; that without affiant\u2019s knowledge or consent said accountant turned over the books, etc., to assistant State\u2019s attorney, Baber; that had affiant known this was to be done he would have \u201cprotested, and sought an order from the circuit court to prevent it\u201d; that following his appearance in the circuit court affiant was confined for a considerable time in a hospital because of illness, and did not learn that the books, etc., had been in Baber\u2019s hands \u201cuntil approximately April 15, 1932\u201d; that affiant is informed and believes and so states that the books, etc., \u201chave extensively been used,\u201d by the State\u2019s attorney and assistants \u201cin the discovery and preparation of evidence to be used in the present prosecution,\u201d and that the books, etc., \u201cor information derived from them, or witnesses who have been discovered because of them, are to be used against him in the present prosecution\u201d; and that, because of the foregoing, \u201caffiant says that the rights and privileges guaranteed to him by the Constitution of the United States and of Illinois have been violated, in that his private books and papers have been seised and taken possession of by the state\u2019s attorney without his consent, and that he has thus been compelled to be a witness against himself.\u201d\nThe affidavit of Gammonly is in substance as follows :\nThat affiant had been in Bain\u2019s employ, as his personal bookkeeper, for about 18 years, and as such had kept the records of all of his business transactions ; that among the books and records are certain journals, cash books, ledgers, canceled ledger sheets, scratch books, check books, check stub books, etc. (describing them); that about November 9, 1931, in response to a subpoena duces tecum, he appeared before Judge Feinberg and produced some.of the books, and at a later date produced, under the court\u2019s direction, other books and gave certain testimony; that about November 18, 1931, under the court\u2019s direction, he delivered all books into the custody of said judge\u2019s clerk, and received a receipt therefor signed \u201cby an assistant secretary of the Straus National Bank & Trust Co., receiver for John Bain, Inc.\u201d; and that during March, 1932, he discovered that all of the books and records, were in the possession of assistant State\u2019s attorney, Baber, \u201cin an office at 1538 West 63rd street, Chicago.\u201d\nIn the answer and counter affidavit of Baber he stated in substance:\nThat prior to November 6, 1931, Gammonly maintained an office separate and apart from John Bain, in which office he, and not Bain, had possession of the books, etc.; that Bain, without any order of the circuit court and of his own free will, requested Gamnlonly to produce the books, etc., in Judge Feinberg\u2019s court to be used in the cause there pending; that Gammonly produced them according to Bain\u2019s request; that after they had been in Judge Feinberg\u2019s court for about two days, Grammonly was served with a subpoena to produce them in a Federal court; that Grammonly advised Bain of the subpoena being served and Bain told him \u201cto produce the books in accordance with the subpoena and to co-operate in all matters pertaining to any investigation of the same \u2019 \u2019; that when the books were in Judge Feinberg\u2019s court, witnesses were there examined, and \u201cfinally the books, at the court\u2019s direction, were left with the clerk of that court and thereafter turned over by him to the auditor of the receiver for examination\u201d; that \u201cduring all of said proceedings, John Bain was represented in court by counsel and neither he nor his counsel ever raised any objection whatsoever to any acts or doings or orders pertaining to such books\u201d; that the books, etc., were examined for the receiver by one Oppenheimer; that affiant requested Oppenheimer to permit auditors for the State to examine them, which permission was granted; that on account of the inconvenience of having the examination made in Oppenheimer\u2019s office, \u201cOppenheimer permitted the auditors of the State to take the books from his office upon a receipt, promising to return the same to him, and that said auditors now have possession of the books by virtue of such receipt\u201d; that Bain and the other defendants herein \u201chave had permission to examine the books separate and apart from all employees of the State, and have had the same access to the books as the auditors of the State have had, except that the defendants herein were not permitted to take them from the premises where they were being held by the State, and for the reason that the State is bound to return them to said Oppenheimer\u201d; that \u201cabout January 30, 1932, John Bain assigned and delivered to the Chicago City Bank & Trust Co., for the benefit of his creditors, all of his personal assets, real, personal and mixed and wheresoever situated, including all legal and equitable property of any and every nature and by him held\u201d; and that the books mentioned \u201cwere the property of said Bain and were a part of his assets in connection with the matters in said books set forth.\u201d\nOn the hearing of the motion to suppress, Gammonly testified that early in November, 1931, in compliance with telephone calls received from Robert A. Bain and Edward C. Barry that John Bain wanted his personal books taken to Judge Feinberg\u2019s court room, he (the witness) took the books to that place; that he had also received a subpoena from the \u201cFederal Government Internal Revenue Department\u201d to produce the books; that on November 9, 1931, he saw John Bain and informed him of the subpoena, and Bain told him \u201cto take care of both subpoenas, and to co-operate, and bring in all the books and records \u2019 \u2019; that prior to taking the books to Judge Feinberg\u2019s .court room they were in his (the witness\u2019) possession \u201cat his office at No. 1538 West 63rd street, Chicago,\u201d which office \u201cJohn Bain had nothing to do with\u201d; that he (the witness) had had the books in his possession for about four years; and that after the Bain banks were closed in June, 1931, he continued to retain the possession of the books, although his active duties as Bain\u2019s bookkeeper, and his salary therefor, had ceased upon the closing of the banks. Edward C. Barry testified that early in November, 1931, John Bain instructed bim to tell Gammonly to bring his (Bain\u2019s) books to Judge Feinberg\u2019s court room.\nCounsel for defendants have assigned on the record 101 errors, but in the stated points in their original brief 20 grounds for reversal are set forth. And in none of these grounds is it urged that the finding of the trial court (that the defendants are guilty as charged in counts 1 to 26, inclusive, and in counts 51 to 73, inclusive) is against the manifest weight of the evidence, or that defendants were not proven guilty beyond a reasonable doubt. In their printed argument, however, in addition to urging said grounds for reversal, they argue that the evidence does not sufficiently show that defendants were guilty beyond a reasonable doubt of any of the charges, and they make the statement, many times repeated, that the judgment should be reversed as to all defendants because they were \u201cthe victims of the recent depression.\u201d The 20 grounds, boiled down (including the point made in counsels\u2019 printed argument), amount to six contentions in substance as follows:\n1. That the court erred in refusing defendants\u2019 motion to quash the indictment.\n2. That in view of the indictment containing so many counts, the failure of the court to require an \u201cadequate and fair\u201d bill of particulars constituted error.\n3. That the court erred in failing to limit the State in it's proof as to the transactions disclosed from the bill of particulars filed.\n4. That the court erred in denying defendants\u2019 motion to supress certain documentary evidence, obtained by the State\u2019s attorney by an \u201cunlawful seizure\u201d of John Bain\u2019s private books and records without his consent, in violation of his constitutional rights.\n5. That to support the court\u2019s general finding of guilty on all the counts in question it was \u201clegally necessary that all defendants be proven to have been in the same conspiracy,\u201d which was not proven.\n6. That the evidence does not sufficiently show that defendants are guilty beyond a reasonable doubt of any of the charges contained in the counts.\nIn this opinion we shall only consider the six contentions, as, under well settled rules, any assignments of error that are not supported by argument may be considered as waived. (People v. Cobb, 343 Ill. 78, 83; People v. Kozel, 303 Ill. 112, 114.)\nAs to the first contention (error of court in refusing defendants\u2019 motion to quash the indictment) counsels\u2019 argument in their brief is in substance that the indictment shows on its face that there was \u201ca misjoinder of offenses in the several counts \u2019 \u2019; that the rule is, that where \u201ctwo or more distinct felonies are charged in the same indictment, \u2019 \u2019 it may be quashed upon motion, or the prosecutor be compelled to elect upon which charge he will proceed (citing Kotter v. People, 150 Ill. 441, 445); that the \u2018 \u2018 rule is the same in misdemecmor cases where the charges are not founded on the same facts or form or are a part of a series of offenses of the same or similar character or are not based on the same transaction\u201d; that the indictment \u201ccontained three different groups of charges which did not grow out of the same transactions, and which were not founded on the same facts or formed a part of a series of offenses of the same or similar character\u201d;-that the \u201cmethods of the prosecution were unfair,\u201d in that defendants \u201cwere grievously prejudiced\u201d by the fact that the prosecution was \u201cupon an indictment containing 73 counts, covering 14 banks and many firms and corporations, and alleging false pretenses in all counts without setting out those false pretenses in either the indictment or bill of particulars,\u201d and \u201cneither defendants nor their counsel could prepare to meet such voluminous, general and omnibus charges, nor could the court properly rule upon the evidence\u201d; and that, hence, the court erred in not quashing the indictment upon defendants\u2019 motion. Wei find no substantial merit in the contention or argument. Each count of the indictment charged defendant with the offense of conspiracy, either in violation of the statute (sec. 46 of our Criminal Code, Cahill\u2019s St. ch. 38, ft 116) or at common law. It is illegal at common law to obtain money or property or to cheat and defraud, by means of false pretenses (People v. Smith, 239 Ill. 91, 103). Even if it could be said that the various counts charged separate and distinct misdemeanors, yet we regard them as of the same character or grade. Although separate felonies, as urged by counsel, may not be included in different counts of the same indictment, the same offense may be stated in different ways in as many different counts as the pleader may think necessary, provided that all the counts relate to the same transaction. (People v. Rasmussen, 328 Ill. 332, 333; Lyons v. People, 68 Ill. 271, 275.) And the rule as to misdemeanors is broader. In People v. Elliott, 272 Ill. 592, 600, it is said: \u201cThe State may join misdemeanors of the same character in the same indictment, and the court may fix separate punishment upon each count on which there is a conviction. . . . This practice has been approved by this court rather than to require separate indictments for each offense.\u201d (See, also, People v. Allen, 352 Ill. 262, 267; People v. Munday, 204 Ill. App. 24, 32, affirmed as to the particular point in 280 Ill. 32, 51.) In the Munday case, the indictment for conspiracy, consisting of numerous counts, was similar to the present indictment, and the court decided against a similar contention made by the convicted defendant. In People v. Jacobson, 247 Ill. 394, 398, it is said: \u201cIn the case of misdemeanors the joinder of several offenses of the same character will not, in general, vitiate in any stage of the prosecution. In such cases the practice of quashing the indictment or information or calling on the prosecution to elect on which charge he will proceed does not exist.\u201d In People v. Montgares, 347 Ill. 562, 567, it is said: \u201cIn an indictment charging misdemeanors, separate and distinct offenses of the same nature may be charged in the same indictment under various counts. The offenses as charged may be tried in the same case.\u201d Furthermore, it is clear to us, under repeated decisions of our Supreme Court, that counts 1 to 14, inclusive (comprising Group 1) are not obnoxious to a motion to quash. (People v. Smith, 239 Ill. 91, 103, 106.) And in an indictment charging a conspiracy to obtain money by false pretenses with intent to cheat and defraud, it is not necessary that the false pretenses be set forth. (People v. Smith, supra; Johnson v. People, 22 Ill. 314, 316, 317; Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 440; People v. Nall, 242 Ill. 284, 292.) And where a defendant is convicted upon a general finding or verdict of guilty under an indictment containing numerous counts, one or more of which is good, the conviction will not be set aside because other counts may be considered to be defective. (People v. Smith, 239 Ill. 91, 107; Ochs v. People, 124 Ill. 399, 414; Thomas v. People, 113 Ill. 531, 535, 536.) And it is difficult for us to perceive the force of counsels\u2019 argument, that because of the large number of counts, etc., defendants were hampered in preparing their defense, when consideration is given to the charges contained in the counts, the bill of particulars filed, and defendants\u2019 general knowledge of the business affairs of the 12 Bain banks, of which John Bain was the directing head, as shown by the evidence. These banks had more or less been operated as a unit prior to their closing on June 9,1931, and the conspiracies charged in the counts arose out of their operation. And the evidence shows that defendants for many years had conspired and acted together in selling to various persons and the public generally real estate securities, by means of circulars and printed statements which to their knowledge contained false representations as to the value of the properties.\nDefendants\u2019 counsel in their original brief further argue that in each of counts 51 to 62, inclusive (Group 2), two or more \u201cdistinct offenses\u201d are charged in the same count, and that, hence, those counts are bad for duplicity and should have been quashed. In our opinion the point is without merit. As we read the counts, each alleges, in connection with the particular named bank, one conspiracy to effect two unlawful objects. And, as we understand the rule, this is proper pleading. (United States v. Aczel, 219 Fed. 917, 933; Frohwerk v. United States, 249 U. S. 204, 209; Noyes v. State, 41 N. J. L. 418, 421; State v. Remedy, 63 Iowa 197, 200.) In the Acsel case it is said: \u201cIs this first count bad for duplicity? It charges a single conspiracy or combination to commit several crimes. \u2022 This does not make the count multifarious or bad for duplicity.\u201d In the Frohwerk case it is said: \u2018\u2018 Countenance we believe has been given by some courts to the notion that a single count in an indictment for conspiracy to commit two offenses is bad for duplicity. This court has given it none. . . . The conspiracy is the crime, and that is one, however diverse its objects.\u201d\nDuring the oral argument, and in the memoranda of additional suggestions then presented, defendants\u2019 counsel took the position, in urging error on the part of the trial court in denying the motion to quash the indictment, that the offenses charged in the indictment were felonies rather than misdemeanors, and that the above mentioned rule as to felonies should have been applied by the court in passing upon the motion. They state in said memoranda in substance:\nThat \u201cthe three groups of charges involved in the 73 counts of the indictment are distinct offenses, and felonies and not misdemeanors, and, therefore, cannot ... be charged in the same indictment, and the indictment . . . should have been quashed\u201d; that our Illinois statute defines a felony as \u201can offense punishable with death or by imprisonment in the penitentiary,\u201d and that \u201cevery other offense is a misdemeanor\u201d; that in Lamkin v. People, 94 Ill. 501, 504, in speaking of our statute, it is said: \u201cIt will be noted \u2018a felony is an offense punishable,\u2019 that is, absolutely punishable, not that may or may. not be \u2018punishable with death or by imprisonment in the penitentiary,\u2019 while the offense of which plaintiffs in error are indicted and convicted here shall be punishable by imprisonment in the penitentiary or by fine. Surely it is no more accurate, in view of this language, to say this offense is punishable by imprisonment in the penitentiary than to say it is punishable by fine, and it is impossible to say, under any rule of construction, that we are bound to lay more stress on the language fixing the punishment by confinement in the penitentiary than on that fixing the punishment by fine.\u201d And counsel further state that although this construction of the statute, as made in the Lamkin case, has been followed in many subsequent decisions in this State, yet such construction has not been discussed in any subsequent case upon its merits; that said construction \u201cwas a mistake,\u201d in that \u201cit has allowed the People to indict for many serious crimes in one indictment, overwhelming the defendant by an unfair prosecution\u201d; that the Lamkin case \u201cwas wrongly decided, because it misinterprets the English language\u201d; that the word \u201cpunishable\u201d has been otherwise defined by lexicographers, and similar statutes in many other jurisdictions have otherwise been construed (cases referred to); and that \u201cthe judicial legislation attempted by the court in the Lamkin case ought not to be longer followed, and defendants oppressed with the type of prosecutions (like the present one) that have become common in the use of the conspiracy charge.\u201d\nIn our opinion the above position, so taken by counsel, is without merit. Whatever may have been the construction of statutes similar to ours in other jurisdictions, the clear construction of our statute, as made in the Lamkin case, supra, has been repeatedly followed in many subsequent decisions of our Supreme Court and is now the unquestioned law in this State. (See Baits v. People, 123 Ill. 428, 429; Herman v. People, 131 Ill. 594, 597; Paulsen v. People, 195 Ill. 507, 514; People v. Stavrakas, 335 Ill. 570, 582; People v. Siemen, 351 Ill. 433, 434; People v. Mangano, 354 Ill. 329, 341.)\nAs to counsels\u2019 second contention (that the court erred in failing to require the State to file an \u201cadequate and fair\u201d bill of particulars), it is a sufficient answer to say that the record discloses that the State did file a bill of particulars (above set forth), and that neither the abstract nor the bill of exceptions discloses that defendants before the trial made any objections to said bill of particulars, or moved that an additional or more specific one be filed. In People v. Rogers, 324 Ill. 224, 229, it is said:\n\u201cPlaintiff in error\u2019s second contention is, that the court should have required the State to furnish a more specific bill of .particulars concerning the offense charged. As we have seen, the motion filed by plaintiff in error for that purpose was allowed and a bill of particulars was filed. If he was not sufficiently informed by it he was at liberty to demand a more specific bill of particulars. (People v. Depew, 237 Ill. 574, 578.) He did not, however, make such motion but went to trial on the bill of particulars furnished, and cannot now complain.\u201d\nAs to counsels\u2019 third contention (that the court erred in failing to limit the State in its proof as to the transactions disclosed from the bill of particulars filed), we do not find that counsel has pointed out any evidence that the court admitted over objection made on this particular ground. If evidence was admitted that is outside the field of the bill of particulars it should have specifically been referred to: It is not our duty to explore the record to ascertain what particular evidence counsel may have in mind. Furthermore, as the case was tried without a jury, it is to be presumed, if any such improper or incompetent evidence was admitted, that the court disregarded the same in reaching his findings.\nAs to counsels\u2019 fourth contention (error of the court in denying defendants\u2019 motion to suppress certain documentary evidence obtained by the \u201cunlawful seizure\u201d of John Bain\u2019s private books and records, etc.), we do not think that it is supported by the affidavit and testimony presented on the hearing of the motion. We fail to find that any \u201cunlawful seizure\u201d of the books and records was had. It appears rather that they were voluntarily produced in the circuit court, under Bain\u2019s orders, and that while they were in possession of that court, or of the Straus National Bank & Trust Co., as the court\u2019s receiver of John Bain, Inc., the State\u2019s attorney was allowed to and did examine them. Defendants\u2019 counsel argue in substance that there was a violation of sections 6 and 10 of Article II of the Illinois Constitution, in that there was an \u201cunlawful seizure\u201d of the books, etc., and that Bain was \u201ccompelled to give evidence against himself.\u201d We find no merit in the argument. It is the law of this State that if books, documents, papers or other property, belonging to and in the possession of a party who is a defendant in a criminal cause be taken by an unlawful search and, seizure, such books, etc., may not be introduced in evidence against said party upon the trial of said cause, and that prior to the trial a motion to suppress this evidence so obtained should be granted. (People v. Brocamp, 307 Ill. 448, 453, 454; People v. Castree, 311 Ill. 392, 397; People v. Winn, 324 Ill. 428, 441; People v. Brooks, 340 Ill. 74, 76.) But in Gindrat v. People, 138 Ill. 103, 111, it is said (italics ours): \u201cCourts, in- the administration of the criminal law, are not accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right.\u201d And in People v. Paisley, 288 Ill. 310, where the facts pertaining to the point under discussion were similar to those in the present case, it is said (p. 314, italics ours): \u201cThe court properly permitted the books of all three of the defendants\u2019 banks to be used in evidence, . . . These books were secured by the State\u2019s attorney\u2019s office from the receiver in bankruptcy, who had gotten them from defendants\u2019 receiver appointed on their bill. Consequently section 10 of article 2 of our constitution, providing \u2018no person shall be compelled in any criminal case to give evidence against himself,\u2019 was not violated. . \u00bb . Defendants were not compelled by the court to produce books or papers in their possession. . . . Even papers and documents illegally seized from a defendant\u2019s possession are admissible in evidence against him in a criminal case if otherwise competent. Courts will not take notice of how they were obtained. . . . Other States having similar constitutional provisions have made similar holdings upon the question now before us.\u201d (Citing cases.) Furthermore, it sufficiently appears that when the books, etc., in question, were examined by the State\u2019s attorney, John Bain had parted with his possession of them and did not have title to them. (People v. Bransfield, 289 Ill. 72, 77, 78; Matter of Harris, Bankrupt, 221 U. S. 274, 279.) Furthermore, it was no concern of John Bain how the State\u2019s attorney temporarily secured possession of the books, etc., from the receiver of John Bain, Inc., or from any person other than himself, because a defendant may only complain of the violation of his own constitutional rights, and not in respect to the manner in which the books, etc., were obtained by the State\u2019s attorney from a person not a defendant. (Guckenheimer & Bros. Co. v. United States, 3 F. (2d) 786, 789; Remus v. United States, 291 Fed. 501, 511; Burdeau v. McDowell, 256 U. S. 465, 476.)\nAs to counsels\u2019 fifth contention (that to support the court\u2019s general finding of guilty on all the counts in question it was legally necessary that all defendants he proven to have been in the same conspiracy, which was not proven), it is difficult for us to understand just what is meant. If counsel means that it was not proven that all defendants were officers of the same banks and that, hence, a defendant not an officer would be legally incapable of unlawfully conspiring with respect to the affairs of the particular bank, we are of the opinion that there is no substantial merit in the contention. As we view the evidence it sufficiently appears that all the defendants were either directly involved in the unlawful conspiracies as charged in said counts, or aided or abetted in their consummation. Counsels \u2019 contention is somewhat like the one made by the convicted defendants in the Ochs case, 124 Ill. 399, mentioned at page '421, which, for reasons thereafter stated in the opinion in that case, was decided adversely to them. And we think that the holdings in the Ochs case are a sufficient answer to counsels\u2019 present contention. (See, also, McCracken v. People, 209 Ill. 215, 221.)\nBefore discussing defendants\u2019 counsels\u2019 sixth contention (that the evidence does not sufficiently show that defendants are guilty beyond a reasonable doubt of any of the charges contained in the counts), we shall consider the written motion of the State\u2019s attorney (supported by suggestions and affidavits) to strike from the record the original bill of exceptions, which motion was reserved to the hearing after counter suggestions and counter affidavits had been filed. The main ground for the motion was that no agreement or stipulation had in fact been made between counsel for the respective parties to so incorporate the original bill of exceptions in the transcript. An examination of the trial judge\u2019s certificates to the transcript, duly signed by him on March 15, 1933, discloses, however, the statement that \u201cthe parties hereto have agreed and stipulated that the original bill of exceptions may be incorporated in the transcript of the record in lieu of a copy thereof.\u201d It thus appears that the judge was of the opinion that such an agreement or stipulation had been made and he so certified. In West Chicago Park Com\u2019rs v. Boal, 228 Ill. 589, 590, it is said: \u201cWe are without facilities in this court, in a case brought here by appeal or writ of error, to determine an issue of fact of this character, and we are satisfied it was not the purpose of the legislature to charge us with that duty.\u201d In the present case we shall be governed by the court\u2019s finding, as certified to, that the agreement and stipulation had been made by the parties. And the said motion, previously reserved to the hearing, is now denied.\nCounsel for the State contend that the abstract of record, filed by defendants, \u201cdoes not contain all the evidence\u201d and, hence, the question of their guilt or innocence is not properly before us. Counsel argue that it is not stated in the abstract that it contains all the evidence; that the abstract is defendants \u2019 pleading (citing People v. Ambolo, 343 Ill. 480, 483); that \u201cwhere matters have been introduced in evidence and do not appear in the abstract the court will assume that such matters are sufficient to justify the judgment, and this notwithstanding the fact that the record may be certified to contain all the evidence,\u201d (Citing People v. Ambolo, supra; People v. Miller, 352 Ill. 537, 540; People v. Yuskauskas, 268 Ill. 328, 329); that the State introduced about 3,000 documents or writings, of which there is no index, and some of them are not even mentioned in the abstract; and that some of the testimony of the various witnesses is not abstracted at all. In view of the holdings in the cases cited, and in other cases decided by our Supreme Court, there is much force in counsels\u2019 contention. And a comparison of the abstract with parts of the record itself, discloses that counsels\u2019 argument as to the insufficiency and incompleteness of the abstract is meritorious. Much of the testimony of the State\u2019s witness, Cutmor, a real estate appraiser, does not appear in the abstract, and about 30 of his appraisal reports of the values of various real estate properties financed by John Bain and his associates are omitted. This testimony and said reports were material to some of the issues of fact involved, when taken in connection with other admitted evidence. Some of the material testimony of other of the State\u2019s witnesses is also omitted. And some of the material testimony and admissions, given and made by the defendants, John H. Bain and John Bain, as well as by other of defendants\u2019 witnesses, are either omitted from the abstract or are not fully abstracted.\nHowever, we have read and considered the oral and documentary evidence as set forth in the abstract, have in numerous instances referred to the record itself and have read and considered the statements and arguments of opposing counsel, contained in the brief of the State\u2019s counsel and in the reply brief of defendants\u2019 counsel as to the purport and effect of the admitted evidence. No useful purpose will be served in detailing the evidence or discussing counsels\u2019 arguments. Suffice it to say that, after careful consideration of the evidence and those arguments, we are satisfied that the court\u2019s findings of guilty, as to all four defendants, of the charges made in all counts now in the case, are clearly sustained by the evidence, and that the court did not err in entering the respective judgments of conviction above mentioned. And we are of the opinion that from the entire evidence there can be no reasonable doubt of the guilt of all of the defendants. The case was carefully tried by an able and experienced judge, sitting in place of a jury by agreement of the parties. And in People v. Thompson, 321 Ill. 594, 600, it is said: \u201cA court of review will not reverse a judgment of conviction in a criminal case unless satisfied that there is a reasonable doubt of defendant\u2019s guilt. ... A judgment of conviction . . . will only be reversed where the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt.\u201d\nThe respective judgments of conviction rendered against the defendants should be affirmed, and it is so ordered.\nAffirmed.\nSullivan, P. J., and Scanlan, J., concur.", "type": "majority", "author": "Mr. Justice Gridley delivered" } ], "attorneys": [ "Harry Olson and Sanford Olson, for plaintiffs in error.", "Thomas J. Courtney, State\u2019s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert J. Woll, Assistant State\u2019s Attorneys, of counsel." ], "corrections": "", "head_matter": "The People of the State of Illinois, Defendant in Error, v. John Bain et al., Plaintiffs in Error.\nGen. No. 36,728.\nOpinion filed March 6, 1934.\nHeard in the second division of this court for the first district at the June term, 1933.\nRehearing denied March 21, 1934.\nHarry Olson and Sanford Olson, for plaintiffs in error.\nThomas J. Courtney, State\u2019s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert J. Woll, Assistant State\u2019s Attorneys, of counsel." }, "file_name": "0215-01", "first_page_order": 273, "last_page_order": 299 }