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People v. Caldwell

NOVEMBER 1, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HAROLD D. CALDWELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LESTER JANKOWSKI, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 29, 1972.

The defendant, Harold D. Caldwell, was charged in two complaints with violating a certain section of the Illinois Charitable Solicitation Act. (Ill. Rev. Stat., ch. 23, sec. 5111.) Following a bench trial in the Circuit Court of Cook County, Mr. Caldwell was found guilty on both complaints. The trial court sentenced him to pay a fine of $500.00 upon each complaint and to serve six months in jail upon each complaint, the sentences to run concurrently.

The issues presented for review are: (1) whether the trial court erred in failing to determine the constitutionality of section 11 of the Illinois Charitable Solicitation Act; (2) whether the trial court erred in allowing the defendant's trial to commence in light of the fact the defendant was not served with copies of the complaint until trial; (3) whether the trial court erred in refusing to allow the defendant additional time to prepare a defense following the amendment of the complaints filed against the defendant to include the word "wilfully"; and (4) whether the defendant was proven guilty beyond a reasonable doubt of wilfully violating section 11 of the Illinois Charitable Solicitation Act.

On January 27, 1969, the defendant, Harold D. Caldwell, was named in a complaint charging him with violation of section 11 of the Illinois Charitable Solicitation Act. (Ill. Rev. Stat., Ch. 23, sec. 5111.) Subsequently, on June 2, 1969, the defendant was named in a second complaint which also charged him with violation of the Act. Both complaints stemmed from the defendant's participation as an organizer of a charity art auction to be held on January 26, 1969. More specifically, the first complaint charged the defendant with using the name of Mrs. Jerry Rohrer in connection with the art auction without first obtaining Mrs. Rohrer's written consent as required by section 11 of the Illinois Charitable Solicitation Act. In both the brochures and the programs which advertised the art auction, Mrs. Rohrer was named as one of the persons who was helping to bring the art auction about. Similarly, the second complaint charged the defendant with using the name of Mr. William Balkin without his written consent. Both complaints were subsequently consolidated for trial with similar complaints which had been filed against one of the other organizers of the art auction, Mrs. Donna Skinner.

On January 5, 1970, the trial of the defendant on both complaints was commenced in the Circuit Court of Cook County. At a bench trial, both complainants testified neither had ever consented to having their name used in any capacity in furthering the art auction, even though both their names appeared in the brochures and programs of the auction. The defendant also testified he had never obtained consent of either complainant. The trial court found the defendant guilty on both complaints. Thereafter, the defendant was ordered to pay a fine of $500.00 and was also sentenced to six months in jail on each complaint, such sentences to run concurrently. It is from these findings in the Circuit Court that the defendant appeals.

The first issue presented for review is whether the trial court erred in failing to determine whether section 11 of the Illinois Charitable Solicitation Act (Ill. Rev. Stat., ch. 23, sec. 5111), was unconstitutional as violative of not only the defendant's right to due process of law, but also certain other rights reserved to the individual by both the Constitution of the United States and the Illinois Constitution.

The defendant contends section 11 of the Illinois Charitable Solicitation Act violated his right to due process of law. The defendant bases this contention on his assertion that the Act is so vague an ordinary person cannot read the provisions of the Act, section 11 in particular, and determine whether his fund-raising activity is governed by the Act.

• 1 We cannot accept this contention as valid. Section 11 of the Illinois Charitable Solicitation Act reads, in pertinent part, as follows:

"§ 11. (a) No person shall for the purpose of soliciting contributions from persons in this State, use the name of any other person, except that of an officer, director or trustee of the charitable organization by or for which contributions are solicited without the written consent of such other persons.

(b) A person shall be deemed to have used the name of another person for the purpose of soliciting contributions if such latter person's name is listed on any stationery, advertisement, brochure or correspondence in or by which a contribution is solicited by or on behalf of a charitable organization or his name is listed or referred to in connection with a request for a contribution as one who has contributed to, sponsored or endorsed the charitable organization or its activities."

In light of the clarity of the language of section 11, as well as its obvious legislative purpose of protecting persons from having their names misused in connection with fund raising for legitimate or illegitimate charities, we necessarily find the defendant's contention that the application of section 11 violates his right to due process of law as erroneous.

The defendant also contends section 11 of the Illinois Charitable Solicitation Act is unconstitutional because it denies him, as an individual, the right to contract with others by requiring written consent first be obtained before using another's name for solicitation of funds for a charitable purpose.

• 2 In view of the aforementioned intent of section 11 which is quite obvious, we also reject this contention as urged by the defendant. The Illinois Charitable Solicitation Act was not enacted to deny an individual the right to contract with others but was enacted, and we reiterate, as a clear exercise of the legislature's power to protect an ...


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