WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOSEPH A. POPE, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1959.
By an indictment returned in the criminal court of Cook County, defendant was charged with having obtained from Louis Mufale money, goods and personal property of the value of $4,000 by means and use of the confidence game. On November 8, 1957, after trial before the court, defendant was found guilty of the offense charged. Motions for a new trial and in arrest of judgment were overruled.
Defendant then made application for probation. His counsel stated that defendant desired to make restitution to the parties who had testified concerning transactions with him; and that defendant owned a valuable property at 3810 West Lawrence Avenue in the city of Chicago which would be sold, if necessary. Counsel requested time for the purpose of working out a feasible plan to raise the necessary funds and the cause was continued to November 22, 1957. On that date little, if any, progress had been made and a request for a further continuance was granted. Between November 22, 1957, and June 5, 1958, five hearings were held and six requests by defendant for further continuances were granted.
At the hearing on June 5, 1958, the court was advised by counsel representing interested parties that the value of the Lawrence Avenue property was only $80,000 to $85,000 instead of $134,000 as stated by defendant; that suit to foreclose a mortgage of $43,000 on the property had been filed and defendant had not apprised the court of such fact; that there were other claims involved in the foreclosure amounting to $15,000; and that on January 10, 1957, the Federal government had filed a claim for lien against defendant and his wife in the amount of $5,980.77. After hearing these undisputed statements, the court denied defendant's application for probation and sentenced him to confinement in the penitentiary for a term of not less than three nor more than ten years.
The principal contention made upon writ of error is that the evidence did not establish the corpus delicti of the crime. Specifically, defendant claims that there was no evidence from which the court could properly find that Mufale had confidence in the defendant; that, if such confidence existed, there was no proof that it was obtained by any false or fraudulent representation, trick or device on defendant's part; and that there was no showing that defendant abused any confidence reposed in him.
A proper consideration of these propositions requires a careful review of the evidence. However, the record is voluminous and it would unnecessarily prolong this opinion if we were to attempt to detail all of the testimony of the many witnesses for the People. Therefore, we shall review the evidence concerning the Mufale transactions, which were the basis of the indictment, and refer briefly to the typical testimony of other witnesses relative to similar contemporaneous deals with the defendant.
Louis Mufale, herein referred to as Mufale, a police officer of the city of Chicago, testified as follows concerning this transaction: In September of 1955, he and his wife were living in an apartment at 2112 N. Sheffield Avenue and his father and mother occupied the flat above him. At that time the two families were interested in obtaining adjoining lots for homes. Since Mufale was a police officer, it was necessary that he live within the city's corporate limits. About September 10, 1955, the Mufales were out riding and saw a sign advertising the construction of homes for $17,000. They visited and inspected a "model home" in Norwood where they met a salesman representing the defendant. Mufale explained to the salesman that he was not interested in a home in that locality and the salesman stated that defendant was going to get some lots in the city and asked if he would be interested in them. Mufale assured him that he would be and stated that he desired one for himself and one for his parents.
As a result of a telephone call received about three weeks later, Mufale, his wife and parents went to the offices of Lawrence Home Builders at 3810 Lawrence Avenue, and met defendant and the salesman whom they had previously contacted. Defendant showed them a list of lots located in the Lawrence and Austin area of the city and asked them to take a ride and pick out the lots they wanted. The list included adjoining properties at 4820-4822 Melvina Avenue.
On October 12, 1955, Mufale and his parents met defendant at the Lawrence Avenue offices and told him that they had selected the adjoining lots on Melvina. Defendant told them that he had an option to buy these properties and, when asked if the lots were clear, stated that "all he had to do was go over and present the check he had first chance to buy." At that time defendant accepted $100 from Mufale and $100 from his parents to bind the agreement, but told them they would each have to bring in another $900 to "start the deal rolling on these houses." The additional amounts were furnished as requested on October 15, 1955, by two cashier's checks each in the amount of $900.
Receipts dated October 12, 1955, were given to Mufale and his father by defendant. Each receipt acknowledged that defendant had received from the payor the sum of $1,000 as a deposit on the purchase of a new home to be constructed at "Lawrence and Austin Area, Chicago, Illinois" on "lot to be selected from lot list furnished;" and thereby defendant promised "to build a new home on said lot for the undersigned in accordance with the usual form of construction contract of Lawrence Home Builders" which "the undersigned agreed to sign when presented." The total cost, including the lot, which "Lawrence Home Builders will procure," was specified as $16,950. The receipts further provided: "If the above described lot is not obtainable, then said home shall be constructed on any other lot mutually agreed upon by the parties hereto." The respective documents were signed by the Mufales and were executed by defendant as "Lawrence Home Builders, by Ben Lewis, sole owner."
Early in November, Mufale received a telephone call in which defendant stated that he wanted to see him and his parents. When they arrived at defendant's office, he told them that he was ready to purchase the lots at 4820 and 4822 Melvina and requested that they each pay an additional $3,000 and sign construction contracts. Such contracts, as prepared by defendant, were signed on November 12, 1955. The contract signed by Louis Mufale and wife provided for the construction of a new home on the real estate described as 4822 N. Melvina Avenue and that signed by the elder Mufales made similar provision with reference to the lot described as 4820 N. Melvina.
Both contracts recite that the Mufales are the "owners" of the respective lots but contain the further provision that Lawrence Home Builders would purchase the lots as agreed upon at a price not to exceed $3,000, to be included in the total contract price, and that a Chicago Title & Trust Company policy would be furnished by the builder. The contracts were signed for Lawrence Home Builders by "Ben Lewis, Sole owner." Shortly after the execution of these contracts, the Mufales delivered two cashier's checks to defendant payable to the order of Lawrence Home Builders, each in the amount of $3,000, which were endorsed: "Lawrence Home Builders, Ben Lewis, Sole owner," and cashed. Defendant told the Mufales that all he had to do was to present a check to receive title to the lots and that he was going to start building in ten days.
Two or three weeks passed during which the defendant neither began construction nor contacted the Mufales, so Mufale called him by telephone. Defendant stated that he was "having a little difficulty" purchasing the lots; that some school teacher owned them and he had been unable to get her signature on the deed. This was early in December. Following this conversation Mufale checked on the ownership of the lots and found that title was in Victor Werner. About December 15, Mufale saw defendant at his office, advised him that he knew title was in Werner; and that Werner had told a friend of his that no one had ever contacted him concerning these lots. Defendant became angry, stated that he knew Werner owned the lots; and that he had been trying to buy them from him and accused Mufale of trying to "queer his deal" with Werner.
By February of 1956, defendant had not purchased the lots and the Mufales were becoming impatient. Some time during that month defendant suggested an alternate set of lots located at 4815-19 North Merrimac Avenue and asked the Mufales to look at them. After inspecting these lots Mufale told defendant they would accept them and asked defendant if he owned them. Defendant assured him that he could get them but Mufale insisted that a definite time be set for such purchase. Accordingly, defendant wrote the following letter to Louis and Dominic Mufale dated March 1, 1956: "Gentlemen: Please be advised that I have purchased lots located at 4815 and 19 North Merrimac, Chicago, Illinois. If these lots are not cleared and title received from forty-five days from the above date I will release you from all claims and return your deposit without any charges of any kind to you." These lots were never obtained, construction was not started and refund was not made.
When Mufale inquired about the progress in connection with the purchase of these lots, defendant told him that the lots were in an estate in which nine people were involved and that he could get only eight signatures. Defendant then suggested other lots but made no assurances of ownership. The Mufales looked at some ...