People v. Curran

207 Ill. App. 264, 1917 Ill. App. LEXIS 628

• Court: Appellate Court of Illinois
• Decided: October 2, 1917
• Docket: Gen. No. 22,634
• Status: Published

Opinion

Mr. Presiding Justice Holdom

delivered the opinion of the court.

A vigorous and severely critical attack is made by the counsel for defendants upon the conduct of the learned judge who presided at the trial. We have no hesitation in repelling this attack by saying that it is wholly unwarranted. Seldom in the history of trials in this jurisdiction has a judge béen confronted with so difficult a task as was the judge in this case, and to the credit of the judiciary be it said that he discharged the duties imposed upon him with equanimity and fairness and that by no action of his were the rights or interests of the defendants or any one of them prejudiced in the slightest degree. The defendants were represented by an array of counsel who, instead of being an aid to the court, seemed to impose every obstacle that their ingenuity could suggest in the hope of impelling the court to commit error. At the very inception of the trial, in an effort to secure a jury, some of the methods of the conspirator defendants in terrorizing whoever opposed them were made manifest. Talismen were intimidated and many of them were excused from duty through fear of physical violence to themselves and their property at the hands of defendants and those aiding and” abetting them. Their fear was so pronounced that they felt disqualified to sit as dispassionate jurors and calmly listen to and weigh the evidence. The tactics of counsel were such that eight weeks were consumed in securing the jury. On no reasonable theory can the consuming of so much time be justified without casting grave reflections upon the legal system which makes it possible or the actions of the presiding judge in tolerating it. An atmosphere of terror and fear was created by defendants and their counsel, with the apparent intent to overawe the jury in- the discharge of their sworn duty. Happily these machinations proved futile, although the result might have been otherwise but for the integrity of the trial judge’s rulings and his firmness of action.

The trial judge, it is charged by defendants’ counsel in argument manifested sternness to all the defendants and used reproving language' towards defendants’ counsel. The record inclines us very strongly to the opinion that such sternness was essential and that the reproving language used was well merited and necessary to maintain control in an orderly way of - the course of counsel in the trial.

The prejudice of the judge, it is further charged, is evidenced by his calling of certain witnesses as the court’s witnesses and allowing the State’s counsel to cross-examine them. The witnesses so called were undoubtedly hostile to the State and so proved by their evidence. The law in this State recognizes that in these circumstances it is the right of the court, in the furtherance of justice, to call such persons as its own witnesses. What the- court said in People v. Rardin, 255 Ill. 9, is equally applicable to the instant case:

“The witnesses were friends and associates of the plaintiffs in error, and evidently testified with a view to shield their friends and to shield themselves. The court was very careful during their direct and cross-examination to safeguard the rights of plaintiffs in error. We think the practice adopted in taking the evidence of these witnesses was fully justified by the holdings of this court' in Bressler v. People, 117 Ill. 422; Carle v. People, 200 id. 494; People v. Cleminson, 250 id. 135.” People v. Baskin, 254 Ill. 509.

These witnesses were Arnold, Ballard, Schorr and Kelhnan. The first two were fellow business agents of the defendants. Schorr was a co-conspirator, not then on trial, and Kelhnan was friendly with defendants Staley and Hahn and was a member of the Glaziers’ Union, and as said in Cassem v. Galvin, 158 Ill. 30: “An examination of this record evidences that the witness was unwilling and evasive, and in such cases leading questions are permissible, in the discretion of the court.”

The trial judge is again severely criticised for his action in addressing the jury in approval of their verdict after it had been returned and in his attempt to overrule, in the presence of the jury, the motion for a new trial. There are two complete answers to this criticism. Whatever was done after the verdict was rendered is of no moment as affecting the rights of defendants, and in his remarks there is no evidence convicting the judge of partiality or even tending in the remotest degree to show that he had any prejudice against defendants. While we have no doubt that the judge was quite ready and capable of deciding the motion for a new trial at the time the verdict was returned into court, yet he did not do so and gave defendants an opportunity not only* to file a written motion for a new trial, which they availed of by assigning forty-eight reasons in writing why a new trial should be granted, but heard arguments upon the motion, took it under advisement and at a later date overruled it and gave judgment upon the verdict; the record shows, concerning the motion for a new trial, that “thereupon a motion for a new trial coming on to be heard, the same was argued by counsel for the defendants and each of them and taken under advisement by the court. ’ ’ The record binds the parties and disposes of counsel’s criticism.

, We find no error in the court’s refusal to quash the indictment. There is nothing in any of the counts of the indictment which is antagonistic to the ruling in Town of Paris v. People, 27 Ill. 74, or Maloney v. People, 229 Ill. 593. The counts which conclude contrary to law are sufficient to charge a common-law conspiracy, which is defined as a combination of two or more persons to do a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. The. unlawful act need be neither criminal nor indictable to make it a conspiracy. Chicago, W. & V. Coal Co. v. People, 214 Ill. 421. While an indictment may be in the terms of the statute, still, if such statute is but a re-enactment of the common law, then a crime at common law is charged and the conclusion “contrary to law” is proper. This indictment charges in terms a conspiracy to commit a crime by. obtaining money by threats, and it is of little moment whether the indictment charges a common-law or a statutory offense. People v. Pouchot, 174 Ill. App. 1.

Several of the counts charge a conspiracy to boycott. Boycotts are unlawful. Doremus v. Hennessy, 176 Ill. 608. As said in Thomas v. Cincinnati, N. O. &. P. Ry., 62 Fed. 803:

“The combination was unlawful without respect to the contract feature. It was a boycott. * * * Boycotts, although unaccompanied by violence or intimidation, have been pronounced unlawful in every State of the United States where the question has arisen, unless it be in Minnesota; and they are held to be unlawful in England. * * * Boycotts have been declared illegal conspiracies in State v. Glidden, 55 Conn. 46, 8 Atl. 890; State v. Stewart, 59 Vt. 273, 9 Atl. 559; Steamship Co. v. McKenna, 30 Fed. 48; Casey v. Typographical Union, 45 Fed. 135; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730.”

• One good count is sufficient to support a verdict. The court said in People v. Jones, 263 Ill. 564:

‘ ‘ The jury returned a verdict of guilty. As there are two good counts in the indictment charging an offense which the evidence on the part of the People tends to prove was committed, they are sufficient to sustain a conviction under a general verdict of guilty, and the motion in arrest of judgment was therefore properly denied.”

People v. Darr, 179 Ill. App. 130; People v. McCann, 247 Ill. 130. In the McCarnn case, supra, the court said:

“The fifth count being good, it was sufficient to support the judgment, and even if the other counts are defective, the denial of the motion to quash was not such error as to require a reversal of the judgment.”

If in this case there should be any difficulty with either count, the verdict would be referable to any good count found in the indictment, of which indisputably there are several.

The objection that the court erred in overruling defendants’ motion for a bill of particulars is not preserved for review. People v. Ellsworth, 261 Ill. 275. If it were it would be unavailing, and what was said in People v. Smith, 144 Ill. App. 129, is equally applicable here namely, that:

“All the substantial and material facts proved are shadowed forth with sufficient particularity in the various counts of the indictment, and evidence properly received in support of them. This is in accord with the settled law of this State on that subject. Gallagher v. People, 211 Ill. 158; Kelly v. People, 192 Ill. 119; DuBois v. People, 200 Ill. 157.”

The matter of allowing a bill of particulars is within the sound discretion of the court and will not be cause for reversal unless it clearly appears that the defendant was damaged thereby, and we are unable to see from the record that defendants were in any way circumscribed in their defense by reason of not having a bill of particulars; furthermore, such record clearly shows that the charges in the indictment were familiar to them all.

We perceive no error in the court’s ruling on the admission and exclusion of evidence. The conspiracy charged involved a boycott and obtaining money by threats of a boycott, and the manner in which it was carried out appears in the statement preceding this opinion. In all the cases the first step was the preparing of the “black list,” in which all the defendants participated, as is proven by the secretary of the Painters’ District Council, and is not seriously disputed. In most of the cases the second step was a demand for money. A refusal was followed promptly by a smashing of plate glass windows in the building of the approached victim. If by any chance the windows were replaced before financial settlement, they were again smashed and not until the victim had yielded to the extortion was he able to permanently replace such plate glass without further interference. It is abundantly proven that all of the convicted defendants took part in and had knowledge of the preparation and circulation of this black list, which was sent twice weekly to the plate glass dealers, who, acting with the defendants and their co-conspirators, refused to furnish glass to the victims until their names were removed from such list at the direction of- the conspirators. Every convicted defendant was proven to have received money from some one or more of the victims of the conspiracy. They were all acting together at their headquarters, and much of the money extorted was paid to and received by most of them at Johnson’s saloon.

The argument that there is no evidence proving that any of the defendants personally smashed any plate glass windows is, in light of the facts, of no consequence. The sequence of events shows conclusively that such windows were broken as a part of the conspiracy to which all the defendants were parties, and from the statements made by several of the defendants that the money extorted was needed for other persons, it may reasonably be inferred that the glass breakers were such other persons. While the. pretense was made that the money extorted was for fines by certain unions, the evidence clearly demonstrates that such pretense was false. No union is proven to have, received a dollar of these ill-gotten gains. Nor does it appear that any of the money extorted was in fact fines levied by any nnion organization, nor were there in existence any nnion by-laws which authorized the collection of the money extorted. In po evept, however, and under no circumstances, could fines be assessed against any one not a member. The defendants applied the money extorted to their own personal use, and it is manifest that defendants weró not, in their demands for any such money, engaged in enforcing union principles. In every instance where so-called “scab” work was the pretense for the exaction, after the money was paid no further question was raised regarding nonunion labor or work, and such work was allowed to remain without any change. The claim that money was paid to union workmen was a bald pretense, as no such workmen were at any time engaged in doing any work for the persons from whom the money was extorted or in or about their premises. Another suspicious circumstance is, that when checks were proffered they were refused and cash was demanded and nothing but cash accepted. Defendants preyed upon the community indiscriminately. In one instance they exacted money from a thrifty laborer and in another they attempted to extort money from a hod-carrier. The spirit of the humble hodcarrier is worthy of emulation. Evidently his inmost soul rebelled at the illegal extortion attempted, and he refused to yield to the extortioner. He dispensed with plate glass and installed a frame, setting therein small common glass, and strange as it may seem he was not thereafter molested.

In this case, the competent and unchallenged evidence in the record so conclusively fastens guilt upon each defendant convicted that, aside from errors in procedure, a court of review is not justified in reversing the judgment. As the Supreme Court said in People v. Cleminson, 250 Ill. 135, so we say:

“After much deliberation we have concluded that as we cannot say that upon the competent evidence there might be a doubt as to defendant’s guilt, we would not be justified in reversing the judgment on account of the errors committed. Wallace v. People, 159 Ill. 446; Jennings v. People, 189 id. 320; Barber v. People, 203 id. 543; Wistrand v. People, 218 id. 323.”

In People v. Halpin, 276 Ill. 363, the court said:

“Error against the plaintiff in error occurred on the trial. Was it of such a character as to require a reversal of the judgment ? The plaintiff in error was denied none of his constitutional or statutory rights. The errors were errors of procedure, in the admission of evidence and instructing the jury. If the correction of the errors might reasonably be expected to result in a different verdict this judgment should be reversed. On the other hand, if the jury, acting reasonably on the competent evidence, under proper instructions, could have reached no other conclusion than that of guilt the judgment ought not to'be reversed so that a better record may be made on another trial. ’ ’

It was further said in People v. O ’Brien, 277 Ill. 305, that:

“The record, as in the Ealpin case, is not free from error, but it is free from any error that would justify a reversal of the judgment. The purpose of a criminal trial is to determine whether or not the defendant is guilty of the crime charged in the indictment. It is essential that the defendant shall be accorded all the rights he is entitled to under the law, and, if errors were committed denying him substantial rights, a reversal of the judgment of conviction would be required. It is not necessary, however, to sustain a conviction that the record should be free from all error, and where guilt is conclusively proven by competent evidence, and5no other rational conclusion could be reached but that defendant is guilty, it would require more substantial errors than any shown by this record to justify a reversal of the judgment, and it is affirmed.”

So in this case is guilt conclusively proven by competent evidence, and no other rational conclusion could be reached than that defendants are guilty as charged. Although there may be errors in this record, still, as they do not affect the constitutional or statutory rights of defendants, they cannot have the effect of justifying a reversal. The defendants before us are proven by the record, beyond all peradventure, to be guilty of the conspiracy charged against them in the indictment.

It was within the discretion of the court to excuse Juror Brown from service after he had been sworn to try the case, and it was not error to disallow the peremptory challenge of Juror Shaw. At common law jurors are sworn individually as accepted. Shaw had been sworn to try the case. Thereafter he was not subject to challenge except for cause, and no cause for excusing him was shown, nor pretense of a cause made. Moreover, it is the duty of the court to discharge a juror who has been sworn if it appears that from physical ailment he would be unable to sit through the trial. There is nothing in this record to show that defendants were prejudiced in any way or manner by the retention of Juror Shaw.

Several witnesses whose names were not upon the indictment were produced by the State, and testified against the objection of defendants. It was discretiontary with the court to allow these witnesses to testify (Simons v. People, 150 Ill. 66), and it is not contended that defendants or any of them were taken by surprise by the calling of these witnesses. The discretion exercised in this regard is not reviewable. Bolen v. People, 184 Ill. 338. Furthermore, the court afforded defendants’ counsel every opportunity to examine these witnesses and to confer with them and tendered them for that purpose. Counsel did not avail of this opportunity and cannot therefore now be heard to complain.

Grave complaint is made regarding remarks of counsel for the State in their closing arguments, to which defendants excepted. A careful examination of the language objected to fails to disclose any reprehensible departure from the latitude allowed counsel by rules of law in argument. The remarks which bordered on the objectionable were incited by the arguments of counsel for defendants and were used in answering such arguments. At the conclusion of the evidence the State dismissed Lindloff and Geimer out of the case and one of the counsel criticised the State’s Attorney for not sooner dismissing them. In answer to this Mr. Baber, representing the State, in his closing argument gave a reason for not dismissing the case earlier as to these defendants,- saying, in substance, that he had waited until the case was closed in the expectation that these dismissed defendants would take the stand and he would have an opportunity to cross-examine them. This comment was permissible, but we think counsel went too far when he said, “Let me tell you that an honest man, when you make a charge against an honest man, a man whose record is clean, he invites investigation and puts himself there (indicating witness stand) and submits to any kind of a question, and why didn’t Lindloff and Geimer do it? ”

Mader and Crowley were the only remaining defendants who did not take the stand in their own defense, and it is said that such language was tantamount to telling the jury that if Mader and Crowley were “honest” men they would have taken the witness stand. Such an inference might have been indulged from such language, and were Mader and Crowley not proven to be flagrantly guilty as two of the leading and most active parties in the conspiracy, these remarks might be cause for reversal. They should not have been made, and far from approving we condemn them. If there was the slightest doubt about the guilt of these two defendants this criticism inferably directed against them might be regarded as cause for reversal. We think, however, in circumstances of this case that a sufficient corrective was supplied in the court’s instruction to the jury to disregard the remarks objected to and in giving, at the request of defendants, an instruction in appropriate language telling the jury not to consider such remarks; furthermore, in the selection of the jury each juror was frequently told by defendants’ counsel that the law did not require any defendant to take the stand — that they could do so or not as they might choose. In a measure, the State’s counsel were goaded into these dangerous paths by the arguments of defendants’ counsel. For instance," one of the counsel for defendants persisted in his closing argument in commenting upon the unfairness of the State in keeping the defendants Geimer and Lindloif in the case until the proofs were closed, and he expatiated at some length upon the assumed virtues of these men. He roundly abused the State’s representatives for their part in the prosecution of the case, and among other statements said: “There has not been a more unfair trial, I venture to assert, in the twenty-seven years of experience that I have had at this bar. There has not been anything quite like it.” It was this character of argument which provoked the counsel for the State to say in closing the case some things which might well, have been omitted, but we must admit that the provocation was great and we hold that the bounds permitted in such cases were not exceeded.

This same counsel in his argument to the jury assumed a virtue which illy became him in telling the jury that he was willing to go to the penitentiary and serve a year of his client’s time. He knew that under no circumstances could he suffer part of the punishment meted out to his client. The comments of the State’s counsel in answer to this boastful and insincere offer were permissible. Moreover, these remarks endangered the client’s liberty, for from them the jury might reasonably infer that his counsel had anticipated a conviction. We fail to discover any other remarks objected to which can be construed to have adversely affected any of the defendants.

More than sixty instructions were tendered the court, thirty-nine of which were given, seven tendered by the defendants being modified. A careful examination of all the instructions leads us to the conclusion that the jury were sufficiently and correctly instructed as to the law of the case and every phase thereof developed by the proofs — that no material legal principle applicable to the facts and the contentions of the parties was omitted from the instructions. The jury were sufficiently informed upon the law of the case and there was no error in the modification of instructions. Nor was the ruling of the court on defendants’ refused instructions reversible error. Even if these refused instructions had been given regardless of their being right or wrong, the jury would not have been justified in returning any other verdict than that found in the record.

There are other matters argued as reasons for reversal which we have fully considered, - but we do not find therein anything which in the slightest degree restricted the rights or privileges, under the law, of any of the convicted defendants who, after a long and patient hearing, were found guilty of the conspiracy charged in the indictment.

The record is free from reversible error and the judgments of the Criminal Court as to each and all of the defendants in this writ of error are affirmed.

Affirmed.