WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
SAMUEL B. EPSTEIN, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1960.
Reeves D. Smith was indicted in Cook County and charged with larceny by bailee, larceny of moneys, embezzlement, larceny of checks, and confidence game. A jury trial resulted in a verdict of guilty and a sentence of from one to three years in the State penitentiary was imposed.
The defendant, by this writ of error, seeks a review of the trial proceedings and asserts error in the admission of evidence relating to earlier, although similar, transactions, and suggests error in the argument of the State's Attorney.
The evidence indicates that for some time prior to 1957 the defendant was a real-estate broker and engaged in business as such in Cook County. In the year of 1957 he commenced operation as a home builder and, in August of that year, contracted with a Mr. and Mrs. Henry Niesman for the construction of a home on a lot in Glenview. The house and lot were to have cost $20,430. The contract was actually signed by the defendant and John Hutter, a relative of the Niesmans, for the reason that Hutter had an established credit rating, whereas the Niesmans, having recently moved from Arizona, did not.
At the time of the signing of the contract the purchasers paid $1,000 down and were to pay an additional $4,000 when a $15,430 mortgage loan at a specified interest rate could be arranged. The transaction was conditioned upon the availability of such a loan to the purchasers.
After signing the contract, application was made to a savings and loan association for a loan and, thereafter, at the defendant's request, an additional payment of $4,000 was made. Subsequent to that payment a further payment of $430 was made to the defendant, leaving a $15,000 balance for financing.
The defendant represented to the purchasers that he had purchased the lot on which the home was to have been constructed and further informed them that the loan had been approved. The purchasers were informed that the $4,000 payment was to be used for the purchase of the lot. The contract between the defendant and the purchasers was signed August 13, 1957.
On the following day the defendant contracted with a real-estate broker representing the owner of the lot for the purchase of the lot at a price of $4,000. At the time of that contract the defendant made a $500 down payment by a postdated check.
On September 6, 1957, the defendant visited with the purchasers, showed them the specifications for the house, and at that time told them that he had purchased the lot for them and that the lot was then theirs. He suggested to them that they should make certain arrangements with reference to trees and shrubberies on the lot that would interfere or be removed in the process of constructing the house.
The savings and loan association made a request of the purchasers for the legal description of the lot and the inquiry was referred to the defendant. He did not supply the description nor evidence of purchase, although, on October 21, 1957, the defendant did submit a survey of the lot to the building and loan association and at about this time further represented to the purchasers that the transaction was proceeding according to his earlier representations.
Further, on October 21, the actual owner of the lot notified the defendant that the $500 down payment had been forfeited for reason of nonperformance of the contract for the purchase of the lot, and the contract for purchase was canceled. Thereafter the purchasers made many efforts to contact the defendant, most of which were unsuccessful, and as a result of such efforts arranged a meeting for October 29 with the defendant and the attorney for the purchasers. At the time of that conference it was learned that the lot had not been purchased, that the loan had not been approved, and that no construction had been undertaken.
The evidence thus demonstrated that the defendant represented himself as engaged in a legitimate home-building enterprise, gained the confidence of Mr. and Mrs. Niesman, that he had urged them to contract with him, that he had made representations to them, and that he obtained moneys from them by reason of the confidence they reposed in his representations.
During the course of the trial evidence relating to other transactions in which the defendant had been involved was admitted, over objection, as being ...