APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Cook County, the defendant, Sam Gallo, was found guilty of criminal usury (Ill. Rev. Stat. 1967, ch. 38, par. 39-1) and intimidation (Ill. Rev. Stat. 1967, ch. 38, par. 12-6) and sentenced to concurrent terms of imprisonment for not less than three nor more than five years. He appealed directly to this court.
The State's principal witness was Donald Doyle, a former truck driver for a Chicago newspaper. He testified that on October 5, 1968, he borrowed $300 from the defendant in order to put back money he had stolen from his route collections and to pay off other debts. The interest payments on this loan were to be $33 per week, none of which would reduce the principal amount. He further testified that in late November, 1968, after he had missed several weekly payments on the loan, the defendant telephoned him and said he would "break my legs in three or four places unless I come up with some money." Then, on December 1, 1968, the defendant told him that a $33 per day penalty had been imposed, so that he now owed $2,500, which could be paid off at a rate of $25 per week for 25 months. Doyle still made no payments and did not hear from the defendant again until February, 1969, when the defendant telephoned and said, "You are killing yourself, and unless you come up with some money it will be out of my hands." Doyle testified that after this phone call he reported the matter to the State's Attorney's office.
The State's Attorney's police then arranged a controlled payment of money to the defendant. On March 30, 1969, Detective Donald Masnjak, posing as Doyle's brother-in-law, accompanied Doyle to a meeting with the defendant and offered to pay Doyle's debt. According to both Doyle and Masnjak, the defendant stated that Doyle owed him $2500, but that he could make a deal for $1250. Two hundred dollars was then paid to the defendant and arrangements were made for payment of another $1050. On April 12, 1969, a second meeting between Doyle, Masnjak and the defendant took place, at which Masnjak gave the defendant $550 and promised to pay the remaining $500 the next week. Police officers, acting in response to a prearranged signal from Masnjak, then arrested the defendant and seized the $550 in marked bills.
The defendant did not deny receiving any of the money from Masnjak. He testified, however, that as a favor to a mutual friend, Ralph Casale, he had originally loaned Doyle $1250, which was to be repaid at the rate of $25 per week, and that the $750 he received was in payment of that loan. He denied telling Doyle and Masnjak that Doyle owed him $2500, and he denied making any threats to Doyle over the telephone.
Ralph Casale testified that in August of 1968, Doyle told him that he needed almost $1000 to pay his debts and asked him to contact the defendant about a loan; that he contacted the defendant and told him that he would back up a loan to Doyle; and that in the middle of October, 1968, the defendant told him he had loaned Doyle $1250.
Ralph Bartuch, a fellow employee of Doyle, testified that in August of 1968, Doyle told him he needed about $800 to pay his debts. The defendant's brother-in-law, Peter Catizone, another of Doyle's fellow workers, testified that on December 1, 1968, he overheard Doyle tell the defendant that he could not get the $1250 he owed him. Evidence was also introduced to show that on September 30, 1968, the defendant's wife withdrew $900 from her savings account. The defendant testified that he used this money to make the loan to Doyle.
The court found the defendant guilty of both criminal usury and intimidation.
At the outset the defendant attacks the indictment upon the ground that the prosecution was barred by the statute of limitations, and that the indictment was substantively inadequate. The offense charged is a misdemeanor and the period of limitation is 18 months. (Ill. Rev. Stat. 1967, ch. 38, par. 3-5) Three indictments were returned in this case, and the defendant went to trial on the third. The first indictment, No. 69-1774, was returned on May 29, 1969, and the second, No. 70-1330, was returned by the April, 1970, grand jury. The third indictment, No. 70-7027, was returned on July 14, 1970. Each indictment alleged that the offenses occurred on March 30, 1969, April 12, 1969, and in late November of 1968.
Section 3-7(c) of the Criminal Code excludes from the statute of limitations any period in which a prosecution is pending against the defendant for the same conduct. To meet the requirements of this section the third indictment stated:
"Further, the Grand Jurors present that the period within which the prosecution of this count of the instant indictment must be commenced does not include the period between May 29, 1969, and the date of return of the instant indictment, in that:
`On May 29, 1969, an indictment to wit: Indictment Number 69-1774 was voted and returned by the May 1969 Grand Jury of the Circuit Court of Cook County, Illinois, against Sam Gallo; which said Indictment Number 69-1774 was a prosecution against Sam Gallo for the same conduct as was charged in Indictment Number 70-1330, which is a Reindictment of Indictment 69-1774. The Indictment Number 70-1330 was voted and returned by the April 1970 Grand Jury of the Circuit Court of Cook County, Illinois, against Sam Gallo; and which said Indictment Number 70-1330 remains in full force and effect and is now this day of return of the instant indictment, pending in the Circuit Court of Cook County, Illinois'"
The defendant contends that this indictment is inadequate because it does not allege that the two previous indictments were for the same conduct. To establish such a requirement the defendant relies upon the following statement contained in People v. Isaacs (1967), 37 Ill.2d 205, 231: "The salient requirement is that it allege the tolling of the Statute of Limitations on the basis of the pendency of prior proceedings against the same defendants for the same conduct." This statement in the Isaacs case was dictum. There is no requirement that identity of the two indictments be alleged in the most recent one, and indeed such an allegation of identity would be a legal conclusion. "The vital condition of ...