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covered by other instructions, offered by them, of the said corporation, and to falsely, willthat were given.

23. Criminal law 1174 (6)-Permitting jury to take to jury room exhibits used by witnesses to refresh recollection held harmless

error.

That jury was permitted to take with them to the jury room, for consideration in making up their verdict, certain exhibits marked for identification in the trial, and used by witnesses to refresh their recollection, while error, was harmless.

Error to Third Branch, Appellate Court, First District, on Error to Criminal Court, Cook County; Wells M. Cook, Judge.

Michael Glassberg and another were convicted for conspiracy to do illegal acts injurious to the public trade. The Appellate Court affirmed the conviction. On consolidated writs of error. Affirmed.

William S. Forrest and Benjamin C. Bachrach, both of Chicago, for plaintiffs in error. Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and S. S. Du Hamil, of Springfield (Edward E. Wilson and Joseph P. Savage, both of Chicago, of counsel), for the People.

DUNCAN, J. Plaintiffs in error, Michael Glassberg and Morris Markin (herein called defendants), were jointly indicted in the criminal court of Cook county for conspiracy to do illegal acts injurious to the public trade. They were found guilty by a jury as charged in the indictment, and after motions for a new trial and in arrest of judgment were overruled each was sentenced to 30 days in jail and to pay'a fine of $2,000. The Appellate Court for the First District affirmed the judgment, and a writ or error is prosecuted by each of the defendants to review the record. The separate writs of error have been consolidated, as the record in each case is identical.

The indictment consisted of three counts, the second and third of which were nollied by the people. The first count of the indictment charges, in substance, that the defendants did on May 31, 1922, in Cook county, Illinois, unlawfully, willfully, fraudulently, and deceitfully conspire, combine, confederate, and agree with each other and with Eugene L. Garey, with the fraudulent and malicious intent unlawfully, wrongfully, and wickedly to do illegal acts injurious to the public trade; that is to say, to knowingly, fraudulently and willfully

(1) Offer to file and file with the secretary of state of the state of Illinois a false, untrue and fraudulent balance sheet of and concerning the Checker Cab Manufacturing Corporation, a corporation, and then and there to set out an untrue, false and fraudulent statement of the assets, liabilities and net worth

fully and fraudulently recite in and by said balance sheet that the said corporation then. and there owned and possessed as a part of the assets of such corporation notes receivable in the sum of $5,426.94, when and while the said corporation then and there had no notes receivable;

(2) And to offer to file and file with the secretary of state aforesaid a certain schedule of and concerning the notes and accounts receivable of said corporation and to fraudulently, falsely and willfully recite therein among the notes and accounts receivable of said corporation that it then and there possessed hotes and accounts receivable, to wit, note of Abr. Lomberg, in the sum of $5,426.94, when and while the said Abr. Lomberg was not then and there indebted to the said corporation, and had not made his note in any sum whatever in the premises;

(3) And to offer to file and file with the secretary of state aforesaid a certain schedule of the machinery and equipment owned and possessed by the said corporation and to falsely, fraudulently and willfully recite therein that the said corporation was then and there possessed of and owned a certain jig, to wit, main body jig of the book value, after allowing for depreciation thereof, of $6,500, when in truth and in fact the said main body jig was then and there of a value not to exceed $500;

(4) And to offer to file and file with the secretary of state aforesaid in and as a part of said schedule of said machinery and equipment of the said corporation that said corporation then and there owned and possessed a sample body of the book value, after allowing for depreciation thereof, in the sum of $25,000, and in addition thereto that the engineering and designing of the sample body aforesaid was of the book value, after allowing depreciation thereof, of the sum of $15,000, when and while the said sample body aforesaid was of a value not to exceed, to wit, $1,000;

(5) And to offer to file and file with the secretary of state aforesaid in and by a schedule of notes and accounts payable of and concerning the said corporation, a false, fraudulent and untrue statement of the notes and accounts payable of said corporation and to knowingly, willfully and fraudulently omit from the said schedule of notes and accounts payable divers notes and accounts payable in the sum of $28,000;

(6) And to offer to file and file with the secretary of state aforesaid a false and fraudulent detailed itemized statement of consideration received for each and all issued and outstanding securities of said corporation, and to falsely, willfully and fraudulently recite therein that "100 shares of preferred stock and 22,500 shares of common stock no

(158 N.E.)

par value" of the stock of the said corpora- set forth merely for the purpose of discustion, was issued and outstanding "for which sion. In these eight numbered paragraphs there was assigned on April 20, 1922, to the are set forth the illegal acts alleged to be 'issuer'" (meaning said corporation) "the en- injurious to the public trade, and they are tire assets of the Markin Auto Body Corpora- alleged under a videlicet, and are also pretion, a corporation of Illinois, subject, how- ceded by the words "to knowingly, frauduever, to the assumption and agreement by the lently and willfully," which quoted words 'issuer' to pay all the liabilities of said Mar- should be and are construed to precede and kin Auto Body Corporation. The net value modify the first seven numbered paragraphs. thereof was appraised at $182,703.28" (mean- This is indicated by the context of this count, ing thereby that the net value of the Markin and also by the further fact that the eighth Auto Body Corporation assets was appraised numbered paragraph contains words similar at $182,703.28 and that same had been receiv- to the quoted words aforesaid. The first ed as a consideration for 100 shares of pre- seven numbered paragraphs set out seven ferred stock and 22,500 shares of common illegal acts alleged to be committed by the stock no par value of Checker Cab Manufac- defendants, in all of which it is stated, in turing Corporation, a corporation, and that substance, that the defendants did offer to the assets of Markin Auto Body Corporation, file and file with the secretary of state a bala corporation, were of a fair value of $182,- ance sheet, statement, schedule, and inven703.28), when in truth and in fact the net tory of and concerning the assets of the value of the assets of the said Markin Auto Checker Cab Manufacturing Corporation, a Body Corporation were of a value not to ex- corporation, which documents were required ceed $50,000; to be filed with the secretary of state in the matter of the sale of stock of corporations in class D as classified by the statute in such case made and provided, and it is alleged in all of said paragraphs that the documents were false, fraudulent, and untrue statements of and concerning said assets. The indictment then closes with the eighth statement that the defendants then and there unlawfully, knowingly, and willfully did offer for sale and sell to the public generally shares of stock in the Checker Cab Manufacturing Corporation.

(7) And to offer to file and file with the secretary of state aforesaid divers other false, fraudulent and willful misrepresentations of and concerning the assets, liabilities and net worth of the said Checker Cab Manufacturing Corporation, a corporation, in and by the said balance sheet, schedules and documents required by law to be filed with the secretary of state aforesaid in the matter of the sale of stock of corporations in class D as classified by the statute in such case made and provided;

(8) And to then and there unlawfully, knowingly and willfully offer for sale and to unlawfully, knowingly and willfully sell shares of stock of the said Checker Cab Manufacturing Corporation, a corporation, in violation of the Illinois Securities Law, to the public generally, contrary to the statute, etc.

The defendants pleaded to the indictment without first raising any objections to it by motion to. quash or otherwise. After the verdict was rendered, and after the motion for a new trial was overruled, they sought to attack the indictment by motion in arrest of judgment, and under that motion they insist in this court that it must be held to be bad The indictment charges the defendants and insufficient to support the verdict and with a conspiracy to do illegal acts injurious judgment, and they set forth a very great to the public trade, and is drawn under sec-number of alleged grounds in support of their tion 46 of the Criminal Code (Smith-Hurd motion, among which are the following: Rev. St. 1925, c. 38, § 139), which provides that, if any two or more persons conspire or agree together with the fraudulent or malicious intent wrongfully and wickedly to do any illegal act injurious to the public trade, they shall be deemed guilty of a conspiracy and shall be fined not exceeding $2,000, or be imprisoned in the county jail not exceeding one year, or shall be imprisoned in the penitentiary for a term not less than one year and not exceeding five years, or may be so fined and so imprisoned in the county jail or the penitentiary.

In the original indictment the first count is written as a continuous single sentence and punctuated substantially as above set forth, without any numbered paragraphs. We have paragraphed this count of the indictment and numbered the paragraphs as above

(1) The matters and things charged in the first count of the indictment do not constitute an offense against the laws of the state.

(2) The allegations in that count fail to show an offense against the laws of the state with the certainty required by law.

(3) The count is bad for uncertainty. (4) The count is bad for want of the following allegations: (a) An allegation showing that at least two of the alleged conspirators were officers of the Checker Cab Manufacturing Corporation, with a specification of the offices held by them; (b) an allegation showing that the purpose of the offer to file, and file, the statement, balance sheet, schedule, documents, the misrepresentations, and other papers, was to procure the examination and the filing of the same in the office of the secretary of state by the secretary of

(8) Each and every allegation in the count of each and every of the purposes of the conspiracy sought to be charged therein (except possibly the purpose to offer for sale and to sell shares of stock of the corporation) is a nullity, as the complete and successful execution of all and each of said purposes could not possibly work or cause any harm, danger, or fraud to the public or to any person whatever.

(11) All the allegations in the count which purport to charge the purpose to offer for sale and to sell shares of stock of the corporation to the public generally, in violation of the Securities Law, are nullities, because they fail to show that the shares of stock were in class D under the Securities Law.

state in order thereby to qualify the shares, class D must be filed in the office of the secreof stock of the corporation as securities in tary of state and by the secretary of state. class D under the Illinois Securities Law (7) It is legally and physically impossible (Smith-Hurd Rev. St. 1925, c. 1212, §§ 96- for any person other than the secretary of 137); (d) an allegation showing that the state, or one of his duly authorized deputies, statement, balance sheet, schedule, etc., were to file in the office of the secretary of state each to be signed by two officers of the corpo- | said statement, balance sheet, schedule, etc. ration and to be verified by their oaths, to be taken before an officer authorized to administer oaths in this state; (e) an allegation that the statement, balance sheet, etc., were to be in writing; (g) an allegation showing wherein the balance sheet was or would be "a false, untrue and fraudulent balance sheet of and concerning" the corporation, together with a scienter; (h) an allegation showing wherein the statement mentioned in said count of the assets, liabilities and net worth of the corporation was or would be untrue and false, together with a scienter; (j) an allegation of the scienter of the alleged fact that the corporation had no notes receivable; (m) an allegation denying that the book value of the main body jig mentioned in said count, after allowing for depreciation thereof, was $6,500, and averring the true book value thereof; (0) an allegation denying that the book value of the sample body mentioned in said count, after allowing for depreciation thereof, was $25,000, and averring the true book value thereof; (r) an allegation showing and designating with reasonable certainty the divers notes and accounts payable which it is alleged in said count were to be omitted from the schedule of notes and accounts pay-mean "in the office of the secretary of state." able or showing that the notes and accounts [1, 2] The venue of a conspiracy to do ilpayable to be omitted from the schedule legal acts injurious to the public trade, or to were unknown, together with a scienter; (t) do any other illegal acts, is properly laid in an allegation showing wherein the detailed the county in which the unlawful agreement is made, and it may also be properly laid in itemized statement of consideration mentionany county in which overt acts were done by the alleged conspirators in carrying out the conspiracy, as the gist of the offense is the unlawful agreement. The statute punishes the act of conspiring to do certain wrongful acts without regard to where such wrongful acts are to be committed, and it does not matter that the wrongful acts are to be commit

(13) The first count is bad because the word "there," wherever said word appears as an allegation of the place where any one or more of the purposes sought to be charged were to be executed, renders it uncertain whether it is charged that such purpose or purposes were to be executed in the county of Cook or in the county of Sangamon. This is especially true if the allegation in the first count, "with the secretary of state," be construed to

ed in the first count was or would be false, together with a scienter; (u) an allegation showing with reasonable certainty the divers other false, fraudulent and willful misrepresentations mentioned in the first count, together with an allegation showing wherein the misrepresentations were or would be false, together with a scienter; (v) an allegated in a county other than where the conspirtion showing with reasonable certainty wherein the offering for sale and the selling of shares of stock of the corporation to the public generally would be in violation of the Securities Law, and thereby showing which one or more, if any, of the following sections of the Securities Law would be violated by such offering for sale and selling of said shares of stock, to wit, sections 29, 30, 31, 32, 33, 34, 36, and 37.

(6) The allegation to offer to file and to file with the secretary of state, wherever it appears in the count, is bad, as the Securities Law provides that all the statements, documents, and other papers which are required by said law to be filed in order to qualify the securities of any corporation as securities in

acy was entered into, or whether or not they are to be committed in another state. The offense is complete when the unlawful agreement is made between the defendants to do illegal acts without regard to whether or not any of the illegal acts are ever committed, as it is the conspiracy with intent to commit illegal acts that constitutes the crime charged in all conspiracies, under the statute. For the same reason it would make no difference that defendants, charged with a conspiracy and shown to have entered into it to do illegal acts, afterwards ascertained the matter of doing the illegal acts was not within their power or within their capacity.

[3-6] As the essence of the offense charged in this case is the unlawful combination or

(158 N.E.)

agreement to accomplish the criminal or ille-, corporation.

The copies of the summary

"Securities in class D under Illinois Securities Law: These are speculative securities. This statement is prepared by parties interested in the sale of securities herein mentioned. Neither the state of Illinois nor any officer of the state assumes any responsibility for any statement contained herein nor recommends any of the securities described below."

gal act, it is unnecessary to prove any overt statement required to be filed with the secreact toward the accomplishment of the unlaw-tary of state by the provisions of section 15 of ful purpose. This court has therefore often the Securities Law are headed in bold-face held that an indictment is sufficient which type with these expressions: charges the offense in the language of the statute, and it is not necessary to allege the means by which the unlawful act is to be accomplished, as a conspiracy to do an unlawful act by any means is an indictable offense. People v. Blumenberg, 271 Ill. 180, 110 N. E. 788; People v. Buckminster, 282 Ill. 177, 118 N. E. 497; Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 73 N. E. 770; Smith v. People, 25 Ill. 17, 76 Am. Dec. 780. [7-9] We may further say that we do not concur with the view of the defendants that the offense with which they are charged could only be committed by officers of the Checker Cab Manufacturing Corporation, or that it is necessary to charge them with doing or attempting to do the illegal acts in question as officers of the corporation, or to allege that the balance sheet, schedule, inventory, etc., were in writing and subscribed and sworn to as officers of the corporation. Neither was it necessary that the object of the conspiracy constitute an offense against the criminal law for which an individual might be indicted and convicted. Smith v. People, supra. It is sufficient if the object of the conspiracy is charged to be any illegal act which, by reason of the combination, has a harmful effect upon society and the public. It is not necessary that the language of the indictment be grammatically exact, if the offense with which the defendants are charged is stated plainly enough to be readily understood by the jury, and to enable the defendants to properly prepare their defense. People v. Lloyd, 304 Ill. 23, 136 N. E. 505.

[10, 11] It sufficiently appears from the indictment that the first seven illegal acts were committed by the defendants for the purpose of qualifying the stock or securities of the Checker Cab Manufacturing Corporation for sale to the public as class D securities under the Securities Law, and that such illegal acts were necessarily injurious to the public trade, and the conspiracy to commit such illegal acts is so plainly and fully stated as to enable the defendants to properly and fully prepare their defense to such charge, and the record in this case shows they did so prepare their defense.

[12] Under the Securities Law the public, in purchasing class D securities, must necessarily depend upon the showing in the office of the secretary of state made by any individual or corporation as to the character, the amount and value of its assets, in determining for themselves the value of the securities offered for sale. The representation and showing of the assets in the office of the secretary of state are made under oath by parties who are either agents or officers of the

Section 21 of the act provides that each financial statement, prospectus, advertisement, circular and document circulated, published, or distributed for the purpose of effecting sales of securities in class D shall contain the words in bold-face type, "Securities in class D under Illinois Securities Law. These are speculative securities." Section 22 of the act provides that the secretary of state shall, upon request therefor, mail or deliver to any person a copy of the summary of the statements or a supplemental statement required to be deposited in his office. It thus appears that the sworn statements of the assets and liabilities, and all other statements filed in the office of the secretary of state with reference to class D securities, are filed for the benefit of any purchaser or other person who may desire to ascertain the value of such securities offered for sale. It is therefore undoubtedly injurious to public trade, or to the public who may purchase such securities, for the issuer or his agents or officers to falsify the assets and liabilities of such issuer in the manner alleged in this indictment.

[13] The very purpose of the Securities Law is to prevent the sale and disposition of fraudulent securities and to protect the public from the dishonesty and irresponsibility of persons engaged in disposing of securities of uncertain values. Stewart v. Brady, 300 Ill. 425, 133 N. E. 310.

[14] No one of the specific allegations of illegal acts injurious to the public trade is insufficient for want of a scienter, or an allegation of knowledge of the defendants which is necessary to charge them with the consequences of the crime charged. As we have already indicated, every false and fraudulent misstatement of the assets and liabilities of the corporation is alleged to have been knowingly and willfully made, and it is also alleged that such acts injurious to the public trade were unlawfully, willfully, fraudulent. ly, and deceitfully made.

[15] The Illinois Securities Law does require the filing of the balance sheet, schedules, and documents mentioned in the indictment. The argument that the making of a false statement in the balance sheet, schedules, and documents aforesaid is not prohibited by the Securities Law is without merit. Section 9 of that act provides for the filing of such

be conceded that there are technical objections for want of further particularity in the allegations that might have been taken advantage of on motion to quash. Young v. People, 193 Ill. 236, 61 N. E. 1104.

documents in the office of the secretary of, quash or otherwise attack the sufficiency of state before any security in class D shall be the indictment before trial and verdict, if it offered for sale, and that such documents shall, except as otherwise provided therein, be verified by the oath of not less than two of the officers of the issuer if the issuer be a corporation. Among the documents mentioned in that section to be filed is an inventory [19] The people, to sustain the indictment, showing the assets of the issuer, an appraise- offered in evidence the documents, statements, ment of the assets of the issuer, and a copy balance sheets, inventories, and other papers of the most recent balance sheet. By section which were filed in the office of the secretary 10 of the act there is required to be filed of state with reference to qualifying the sewith the inventory an appraisement of the as-curities of the Checker Cab Manufacturing sets described in the inventory by disinteres- Corporation for sale as class D securities. ted qualified persons, verified by their oaths. The proof offered by the people showed that By section 25 of the act the secretary of state these papers and documents purported to be is given power to make all needful rules and signed and sworn to by the defendant Markin regulations to carry the act into effect and and Eugene L. Garey as president and secreto prescribe the forms of all statements, docu-tary of the corporation, and some of the documents, and summaries required by the act. ments are also signed and sworn to by the Section 33 of the act declares, in substance, defendant Glassberg. The documents are nuthat any person shall be deemed guilty of per-merous, and some of them are very lengthy, jury, and subject to the penalties therefor, and they are such documents, in form and in who shall sign and file with the secretary of substance, as are required to be filed by the state any statement, list, inventory balance | Securities Law. These documents are headed sheet or other paper or document required to be filed by the act and verified by his oath, knowing that any representation therein contained is false and untrue.

[16] The contention of the defendants that it was impossible for them to file any documents under the Securities Law is sought to be sustained by the fact that section 2 of the act defines the word "file" or "filing" to mean the indorsement by the secretary of state on any statement or document received, of the word "Filed," followed by the month, day, year, name of the secretary of state, etc. In section 32 of the act this language is used "The statements and documents filed by the issuer in the office of the secretary of state." In that section, and in the indictment, the word "file" is used in its ordinary sense of "deposit with," and the defendants' objection is untenable.

with a statement in bold-face type, as follows:

"Securities in class D Illinois Securities Law: These are speculative securities. This statement is prepared by parties interested in the sale of securities herein mentioned. Neither the state of Illinois nor any officer of the state astained herein nor recommends any of the sesumes any responsibility for any statement concurities described below."

Then follows the statement on behalf of the corporation that it is proposed to offer for sale 2,500 shares of the preferred capital stock of the issuer, having a par value of $100 per share. One share of no par value common stock is to be given as a bonus with each share of preferred stock sold. All of the no par value common stock has been issued, and the owners and holders thereof have turned over and delivered to the company 2,500 shares of no par value common stock, with directions that there be transferred and delivered, as a bonus to the purchasers of the preferred stock proposed to be sold, one share of no par value common stock with each share of preferred stock purchased. The issuer, by resolution duly adopted, accepted the offer and is now in possession of the stock. The name of the issuer is Checker Cab Manufacturing Corporation. The issuer was incorporated on April 18, 1922, under the laws of Delaware. The corporation was organized to manufacture, build, construct, buy, sell and generally deal in motor trucks, automobiles, and motor vehicles, together with all machinery and equipment necessary for the same; to build, erect, construct, buy, sell, and gen

[17] It is also contended that the statement of the illegal acts set out under the videlicet in paragraphs 3 and 4 as we have numbered them is defective, because neither statement denied that the book value was as alleged but merely stated that the actual value did not correspond with the book value. It is not necessary to discuss the objection, as the matters stated in both of those paragraphs were provable under the statement in paragraph 7. [18] Section 9 of division 11 of the Criminal Code provides that all exceptions that go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sus tained for any matter not affecting the real merits of the offense charged in the indict-erally deal in all kinds of mechanical and ment. The strict rules of pleading called for by the defendants as outlined in their many objections cannot now be insisted on by them, as they were waived by failing to move to

electrical machinery; to buy, sell, and generally deal in all kinds of goods, wares, and merchandise, and to own, hold, and acquire patents, applications for patents, inventions,

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