Dorr v. People

Mr. Justice Farmer delivered the opinion of the court: Notwithstanding the labor imposed by setting out in the abstract a great portion of the testimony in full by questions and answers instead of “a complete abstract or abridgment” of the testimony, we have read it carefully from the alleged abstract, and having reached the conclusion that the evidence is insufficient to sustain a conviction for the confidence game, it is unnecessary for us to discuss the numerous other errors assigned and argued in a brief of 227 pages on behalf of plaintiffs in error and a brief of 106 pages on behalf of defendant in error. It is not contended that the business of the Merchants’ Credit Guide Company with its customers and subscribers, among whom were included a number of the largest and most reputable mercantile houses in Chicago and other cities, was an unlawful or illegitimate business. The evidence shows that Kitzeman, the prosecuting witness, advertised in the Chicago Tribune, some time in April, 1904, for a position, stating in the advertisement he had $500 to invest. Plaintiff in error Dorr saw the advertisement and wrote him a letter, which resulted in Kitzeman calling at the office of plaintiffs in error and the Merchants’ Credit Guide Company about the latter part of the month of April. At this time an extended interview took place between Dorr and Kitzeman with reference to the character of the business of the Merchants’ Credit Guide Company, the employment of Kitzeman as district manager and the territory he should operate in. No contract was entered into by the parties at this time nor was any made until there had been at least three, and probably four, more interviews between the parties. According to Kitzeman’s testimony Dorr fully explained the character and methods of the Merchants’ Credit Guide Company’s business, gave him the names of a number of its subscribers in the city of Chicago and showed him some letters pi endorsement from some of these subscribers. Among the subscribers referred to in the city of Chicago were such well known houses as Lyon & Healy, Franklin McVeagh, Humiston, Keeling & Co. and the Skinner Manufacturing Company. Kitzeman says he called on at least some of these firms before entering into the contract and inquired about the Merchants’ Credit Guide Company and its business. He was not permitted to testify to what he was told by these houses, but it is reasonable to suppose that he did not receive an unfavorable report or he would not have afterwards accepted employment with said corporation. On May 5, which, as we understand the evidence, was the fourth interview between Kitzeman and Dorr, the latter exhibited to Kitzeman the form of the contract to be executed if Kitzeman accepted the position of district manager. The territory to be allotted Kitzeman was called the territory of north-eastern Ohio, embraced several counties in that section of the State and included the city of Cleveland. According to the testimony of Kitzeman he read the. contract over carefully. Some of its provisions did not suit him, and at his suggestion and request certain modifications of it were made. After this was done the contract was signed by the parties and a $500 certified check turned over by Kitzeman to Dorr, for which he received twenty shares. of stock in the Merchants’ Credit Guide Company. Soon after, Kitzeman proceeded to Cleveland to enter upon the work of his position. The Merchants’ Credit Guide Company paid his railroad fare to said city and also sent a representative to instruct Kitzeman in the business and assist him in getting a start. Kitzeman remained' in Cleveland until September, 1904, and being unable to secure enough subscribers to the Merchants’ Credit Guide Company to make the business a success, he quit the field and wrote to said company.notifying it that he had quit its employment because he was unable to secure enough business to justify him in continuing in the work and requesting a return of the $500 paid for stock, which stock he offered to surrender back. Kitzeman was unable to do much business in the territory to which he was assigned, although he testified he labored hard and earnestly. During his employment, in addition to his car fare from Chicago to Cleveland, he received from the Merchants’ Credit Guide Company $50 and remitted to said company” $40. He retained and used $140 or $145. Plaintiffs in error, on behalf of their corporation, refused to return to him the $500, claiming that it was unlawful for the corporation to buy the stock back, and called attention to the fact that under the terms of the contract the}'- were under no obligation to return Kitzeman the money. The only provision of the contract relating to the stock purchase was, that in case of the resignation of Kitzeman he would co-operate with the Merchants’ Credit Guide Company in securing a successor who would take his stock at the same price he paid for it. This is not an agreement that the company would take the stock and pay back to Kitzeman the money he paid for it, nor is it claimed by the defendant in error that the written contract imposed any such obligation upon plaintiffs in error. Kitzeman does not claim he did not fully understand the contract when he signed it. He does testify, however, that Dorr verbally agreed to take the stock and give his money back if he should quit his employment, and this is the only respect in which Kitzeman claims to have been deceived or defrauded, except that he testified plaintiffs in error showed him a carbon copy of a report which they represented was from their district manager from Toledo, Ohio, which he said showed a profitable business. He testified he saw no name on the report. Plaintiffs in error both testified they had no report from the Toledo manager at that time, but that the report shown Kitzeman was from their St. Louis manager, which report they produced at the trial. Dorr denies he ever promised Kitzeman to take up his stock and pay him his money back, and it is not claimed that any such promise was ever made by Sawyer, who testifies no such proposition was ever made in his presence or hearing. If proof beyond a reasonable doubt that Dorr did make such verbal promise would be sufficient to establish his guilt of the confidence game, it would seem to be a grave question whether the fact was proven by that degree of evidence. If Kitzeman was corroborated at all, it was by Lawrie and Burnett. These two parties had been employed by plaintiffs in error under contracts similar to the one made with Kitzeman. The court permitted them to testify that when they made their contracts they purchased stock of plaintiffs in error under a verbal agreement to buy it back if they quit the employment; that they did quit said employment and plaintiffs in error refused to take the stock back and refund the money. If this had been competent testimony, (which it is unnecessary here to determine,) it is still open to serious question whether, as against the denial of the plaintiffs in error, corroborated as they were by the written agreement with Kitzeman, the evidence of the prosecution was sufficient to justify a conviction. But however that may be, we are of opinion the proof in this case fails to show the guilt of plaintiffs in error of the crime charged in the indictment. The indictment charges them with obtaining the certified check by means and by use of the confidence game. It is not sufficient, under such an indictment, to prove the defendant guilty of such acts and fraudulent practices as would subject him to liability in a civil action or to indictment and prosecution under some other provision of the Criminal Code. It is argued by counsel for defendant in.error that the evidence shows the whole scheme and purpose of plaintiffs in error was to defraud any person whom they could induce to trust them. This is a misconception of the force and effect of the testimony. The proof shows that the business of the Merchants’ Credit Guide Company was the collection of claims due their subscribers and ascertaining and reporting the financial condition of business men and others when so requested by their subscribers. That the methods employed by said company were not considered disreputable, fraudulent or unlawful is evidenced by the fact that the proof shows, as we have before said, their subscribers embraced a large number of the leading business concerns in Chicago and other cities. The proof further shows said company had about seven hundred subscribers. The subscription prices ranged from $25 up to $100 per year, and some of them had been renewed a number of times. The business had been carried on in the same manner ever since 1896, and there is an utter absence of evidence that its object and purpose was to defraud. If the plaintiffs in error did, as contended, induce Kitzeman to pay $500 for stock in the corporation under a verbal agreement to return his money and take the stock back if he left their employment, when the written agreement signed by Kitzeman, and which he does not pretend he did not read carefully and understand, exempts plaintiffs in error from such duty, we think this insufficient to bring the act within the confidence game. The cases of Maxwell v. People, 158 Ill. 248, DuBois v. People, 200 id. 157, Hughes v. People, 223 id. 417, and Chilson v. People, 224 id. 535, are essentially different in all their material facts from the case at bar. In those cases the parties convicted under indictments charging them with obtaining money by means of the confidence game were not engaged in any legitimate business having any connection with the acts which resulted in their indictment and conviction, but the only business in which the evidence shows the defendants in those cases were engaged was deceiving innocent and unsuspecting persons and obtaining money from them by devices and tricks that left no room for doubt as to the criminal character of the acts and were within the definition of the confidence game. In'this case it is not testified by Kitzeman that either of plaintiffs in error represented to him that the stock purchased would be a valuable investment on account of it paying dividends or of its probable future increase in value. Kitzeman testified Dorr told him the corporation was not selling stock, except a certain amount that had been set aside for persons employed as district managers, and that the purpose of selling this stock to them was to insure them giving the business their best efforts. He says he does not remember whether Dorr said anything about dividends on the stock, while Dorr testifies he told him no dividends had ever been paid thereon. Kitzeman was an educated, intelligent man, had lived in Chicago many years, and had had a very considerable experience in business affairs with and for important business concerns in said city. He believed the plan of the Merchants’ Credit Guide Company was a good one and that employment by it would be profitable, but the evidence does not show this belief was induced by false representations of plaintiffs in error. In addition to Dorr explaining it fully to him, Kitzeman investigated it among the subscribers to the system. It is true that, apparently through no fault of Kitzeman or plaintiffs in error, he failed to make the business a success in the territory assigned to him, but there is an absence of evidence to show that he was induced to part with the certified check by acts intended to be embraced within the 98th section of the Criminal Code. The judgment of the criminal court is therefore reversed and the cause remanded. Judgment reversed.