Appeal from the Criminal Court of Cook County; the Hon.
SIGMUND J. STEFANOWICZ, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Matthew Wilson appeals from a judgment on a verdict finding him guilty of obtaining $7,000 from Loney Neal in violation of the Confidence Game Statute (Ill Rev Stats 1961, c 38, § 256) and that he serve not less than seven nor more than ten years in the Illinois State Penitentiary.
On January 14, 1960, Loney Neal was walking southward from Madison Street on State Street in Chicago upon leaving the First Federal Savings and Loan Association where he had just made a deposit to his account. He was confronted by a stranger, whose identity is unknown, hereinafter called the "first man," who told Neal that he was an illiterate legatee from Arkansas and that he was carrying a great deal of money in a money belt around his waist. He asked Neal the location of a Reese Hotel and expressed a desire to see a girl before he returned to Arkansas. Neal replied that he did not know where the Hotel was located and suggested that "first man" consult the telephone directory. At this point, the defendant, Matthew Wilson, also a stranger to Neal, joined the pair. Wilson, a well-dressed, intelligent-looking man, answered that he knew the location of the Reese Hotel and offered to drive "first man" there in his automobile. Wilson asked Neal to escort "first man" to State and Adams Street while he acquired his automobile from a nearby parking lot. When Wilson arrived in the automobile, "first man" entered the rear seat. Neal said he was going home, accepted Wilson's offer to drive him to the south side of Chicago, and entered the front seat.
After riding about fifteen minutes, during which time "first man" repeated his desire to see a girl and to go to the Reese Hotel, Wilson drove into a parking lot near 26th and State Streets. Wilson exited, saying that he was going into the hotel to see if he could get a girl for "first man." Upon his return some fifteen minutes later, Wilson stated that a girl would not be available for about fifteen minutes. Neal thereupon left the automobile, saying he was going home. Wilson offered to drive him to 47th Street; Neal again accepted, entered the automobile, exited at 47th Street, and entered the CTA elevated train station. Neal, a CTA employee, spoke to the collector in the station. Wilson, in the meantime, used the telephone and then told Neal that his boss gave him more time. He said he would drive "first man" back to the hotel and would then drive Neal home. Neal again accepted the offer.
While riding in the automobile, Wilson remarked that "first man" had too much money to take into the hotel, to which Neal suggested that Wilson drive "first man" to a bank on 47th Street so that "first man" could deposit his money until he was ready to leave town. "First man" declined to do this, stating that if he deposited his money in a bank a white man's signature would be necessary as a voucher in order to withdraw the money, since this was the custom in Arkansas. Neal stated that "first man" was mistaken, that he, Neal, had just made a deposit at the First Federal, and produced his passbook. Wilson suggested that Neal withdraw his money from First Federal to prove to "first man" that a white man's signature is not a prerequisite to a withdrawal. Neal declined, stating that he did not want to lose the interest on his money, but Wilson assured him that a withdrawal of only a few hours would not result in a loss of interest. Neal decided to withdraw his funds from First Federal in order to protect "first man." "First man" wagered that Neal could not withdraw the money without a white man's signature, and Neal accepted the wager.
The three men returned to the hotel to see if a girl was available, but were informed by a third stranger, whose identity is unknown and who shall be referred to as "third man," that there would be a long delay. Wilson then suggested that they proceed to the First Federal. "Third man" asked if he could accompany them and Wilson said "yes." The four men proceeded to a parking lot near Washington and Dearborn Streets, and Neal started to depart for the First Federal, located at Madison and Dearborn Streets a block away. "First man" said someone should go with Neal to insure that no white man signed for his withdrawal, so "third man" offered to and did accompany Neal.
With "third man" watching, Neal received $7,000 from the bank teller; the money was in $100 bills and bound with a rubber band. Neal placed the money into the pocket of his leather jacket and the two men returned to the automobile, where Wilson and "first man" were playing a game of cards. Wilson asked "third man" if the withdrawal was accomplished and "third man" replied in the affirmative. Wilson then asked Neal if he could see the money and Neal handed it to him. Wilson said, "We'll tie it up in this handkerchief." He proceeded to wrap the money in the handkerchief while the other three men bantered among themselves, and then gave Neal a stuffed handkerchief which Neal placed into the pocket of his jacket. Neal thought that the handkerchief contained both his and "first man's" money. "First man" stated that he did not want Neal carrying his, "first man's," money around in the jacket pocket, removed the bundle from the pocket, unbuttoned Neal's shirt, and shoved the bundle under the shirt.
Wilson then said that he would drive "first man" over to the hotel and suggested that Neal remain in the loop and meet him at State and Adams Streets. Neal exited within five minutes after his return from the bank.
While proceeding to State and Adams Streets, Neal decided to re-deposit his money at the First Federal since there was no longer any reason to carry it. He removed and opened the handkerchief, only to find strips of paper which fell out. Two plainclothes detectives, Harold Olson and Joseph Senase, observed Neal remove and open the handkerchief from about twenty-five feet away. They observed the paper strips fall out. The two officers conversed with Neal, who then led them to the parking lot at 122 North Dearborn Street which Wilson had just left, where they acquired the license plate number of Wilson's 1960 Cadillac sedan. Neal did not see Wilson again until four days later when he identified Wilson to a policeman at the County Building in Chicago and again later that same day in a multiple lineup at police headquarters.
Defendant Matthew Wilson testified in his own behalf. He stated that he met Neal and "first man" on State Street and agreed to drive them to a hotel to find a girl; "first man" offered to pay Neal and Wilson ten dollars apiece for their trouble. Wilson stated that he drove to 47th Street and South Park where Neal checked on his work schedule and that the three men then drove to 39th and Drexel where he contacted a man ("third man") about some girls. Upon his return to the automobile he found Neal and "first man" engaged in a game of cards. After about forty-five minutes of playing cards, Neal said that he had lost all of his money and then produced his passbook, but "first man" would play only for cash. Wilson stated that Neal asked him to drive him to the First Federal Savings and Loan Association so that he could make a withdrawal, that "first man" objected to his going alone, and that "third man" accompanied Neal to make the withdrawal. Neal returned with a large amount of money and proceeded to gamble in the automobile in the parking lot at 122 North Dearborn Street. The gambling continued for about forty-five minutes when two policemen ordered the game to cease. After the policemen left, the game continued for another forty-five minutes when Neal and "first man" began to argue about bets. Neal jumped out of the automobile, saying that he wanted to get even. Wilson said that he drove off when Neal refused to re-enter the automobile.
During the course of this two and one-quarter-hour card game, Wilson stated that he had the motor of the automobile running for some time because it was cold that day. He also stated that he knew how to play various card games, but that he was not playing that day because he was short of money. He testified that he was employed as a bartender and made $65 per week.
Wilson denied that he ever received $7,000 from Loney Neal or that he tied $7,000 of Neal's money into a handkerchief; he also denied any conversation about a white man's signature being necessary to withdraw money from a bank.
The manager of the parking lot at 122 North Dearborn Street, Woodrow Waller, also testified for the defense. He stated that he observed the transfer of a white package from Wilson to Neal. Waller testified that he had seen Neal, Wilson, and two other men sitting in an automobile and observed a card game in progress on the day in question, which facts he failed to disclose until May 7, 1962, the opening day of the trial. He also stated that Wilson offered him $100 and, if he had paid, Waller would have told the police nothing.
Defendant contends that the corpus delicti of the crime of obtaining money by use of the confidence game was not established in this case, for the reasons that Wilson was not shown to have obtained and retained possession of the $7,000 nor was he shown to have said or done anything by way of false representations in order to gain Neal's confidence. In the alternative defendant contends that, if the corpus delicti of the crime was established, the evidence fails to establish his guilt beyond a reasonable doubt. We are of the opinion ...