Writ of error to the Criminal Court of Cook County; the Hon.
ABRAHAM W. BRUSSELL, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendants, Perry Elbert Walker and George Walker, brothers, were tried jointly upon charges of conspiracy and confidence game. Both charges were grounded upon fictitious injury claims made to an insurance company. A jury found them guilty of both charges. Perry received a $2,000 fine and a two to five year term for the conspiracy charge and a concurrent four to eight year term for the confidence game charge. George received concurrent one to two-year terms upon both charges.
Defendants' writ of error was transferred by the Illinois Supreme Court to this court for disposition. Defendants contend that "the obtaining of insurance proceeds by false representation does not constitute the crime of confidence game" and that the record does not support a conviction on either charge.
In substance, the evidence shows that on June 20, 1960, Perry Walker suggested a deliberate automobile collision to Frank McCauley, Jr., Bill Swain and George Walker. On June 21, the four entered Perry's 1947 DeSoto to accomplish their objective, and later, while proceeding on Western Avenue, the Walker automobile was struck from behind by an automobile driven by one Frank Wirth.
A police squadrol arrived on the scene, and the officers were informed that no one was injured. The drivers exchanged identification information, including insurance data, and all left the scene of the occurrence. On the morning of June 22, 1960, Wirth telephoned his insurer (Allstate Insurance Company) and reported the collision. On the same morning, Perry Walker, George Walker, Bill Swain and Frank McCauley met at a tavern, and after some conversation with Perry, Willie Stevens, the bartender, agreed to take the place of "another boy that was in the accident with us," who had to go to work.
Perry then drove the DeSoto and his four companions to the Allstate Insurance Company's Chatham office, located at 87th Street and Stony Island Avenue in Chicago. Perry entered the office and reappeared with an Allstate property damage adjuster, who made an estimate of the amount of damage. Thereafter, at about 1:00 p.m., Perry Walker, George Walker and the three others entered the Allstate office and talked with Robert Samardick, an Allstate adjuster.
Samardick had a conversation with all five regarding the occurrence. He was told by each of them that "they were injured as a result of this accident . . . and they stated they were not working this day, they were attempting to settle the claim. . . . Mr. Walker, who was employed by the Anniston Soil and Pipe Company told me that he was en route back to his home and waiting for the settlement to take the airplane back." He offered "$25 to each individual as a means of settling the claim for the personal injuries involved." This offer was refused, and "the demand made by the gentlemen was $150 for each person, plus the property damage to the car. I told them I could not offer this amount of money, my top offer would be $100 for each individual plus the property damage to the car." It was on this basis that the claims were settled. "I then made out the drafts to the five people and I gave each individual a draft for $100, with the exception of the driver of the car, Mr. Perry Walker. His draft was for $151.25. This included the damage to the car." Each of the five individuals executed a release in his presence and, in return, he handed each of them a draft for the agreed amount. After identification, the releases and drafts were received in evidence.
Samardick further testified, "I relied upon the fact that our assured had reported he was in an accident and from my determination of the facts, our assured was liable. And I relied upon the fact that the individuals stated that they were injured as a result of the accident, and this was the reason I paid them."
After leaving the Allstate office, the five went down the street to a currency exchange and, using a business card of Samardick, the endorsed drafts were exchanged for cash. The drafts were ultimately charged against an Allstate bank account. After receiving currency for the drafts, they drove back to 61st and Prairie Avenue and, while in the car, and at the instructions of Perry, "they each kept the $50 and gave Perry the rest of the money that was left, and we all got out of the car and went back to the corner."
The five claimants were jointly indicted upon charges of a confidence-game conspiracy, a confidence-game acquisition, and a false-pretense acquisition. In the jury trial of Perry and George Walker, the prosecution witnesses included two of their coindictees Frank McCauley, Jr., and Willie Stevens. They both testified in detail as to the series of events and their own participation. Both defendants testified and denied that the occurrence was planned.
The contentions of defendants are: (1) "The settled law of the State of Illinois is that the obtaining of insurance proceeds by false representation does not constitute the crime of confidence game"; (2) "Where property or money is obtained by unlawful means other than by fraudulently obtaining the confidence of the victim and abusing the confidence so obtained, a conviction of the crime of Confidence Game cannot stand"; and (3) "There is no evidence in the record to prove the crime of conspiracy to obtain property by means of Confidence Game as charged in the indictment."
The statutory provision relating to the crime of confidence game (Ill Rev Stats 1959, c 38, § 256) reads as follows:
"Every person who shall obtain or attempt to obtain from any other person or persons any money, property or credit by means or by use of any false or bogus check or by any other means, instrument or device commonly called the confidence game shall be imprisoned in the penitentiary not less than one year nor more than ten years."
To support the contention that obtaining insurance proceeds by false representations does not constitute the crime of confidence game, defendants cite People v. Peers, 307 Ill. 539, 139 N.E. 13 (1923), and People v. Ingravallo, 309 Ill. 498, 141 N.E. 176 (1923). In the Peers case, Peers was involved in an automobile collision at a time he had no insurance on his car. With the collusion of the insurer's agent, he purchased a policy and made a fraudulent claim, representing that the loss occurred after the policy was purchased. In stating ...