APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Defendants, Orris Ballard, Lawrence (Larry) Ballard, Serge Gaudry and Donald Russell were indicted and charged with 15 counts of theft by deception (Ill. Rev. Stat. 1971, ch. 38, par. 16-1). Following jury trial, defendants Orris and Larry Ballard and Gaudry were found guilty on 12 counts and were each sentenced to two to eight years imprisonment. Defendant Russell was found guilty on four counts; he is not a party to this appeal. Defendants Orris and Larry Ballard and Gaudry appeal from the jury's verdict and the sentences imposed by the trial court.
The charges arose from an alleged fraudulent scheme involving the sale of distributorships by defendants to purchasers, referred to as investors. At trial 13 witnesses testified that each had purchased a distributorship from a company named American International Tool Company (hereafter AITC). After seeing a newspaper advertisement, the witnesses met with either Larry Ballard or Donald Russell, who sold the distributorships. Serge Gaudry was president of AITC and Orris Ballard acted as consultant and participated in one or two of the sales. The distributorships were sold for amounts varying between $3000 and $8500. The witnesses signed written contracts which promised that the marketing department of AITC would obtain locations for the placement of the tools, generally 20-40 accounts or locations. Other written and oral promises were made as follows: (1) Large profits could be made because there was a one-third markup for the retail store and one-third markup for the investor; (2) the company would furnish locators, who would set up accounts and locations to place the tools and other merchandise in high volume retail outlets; (3) the tools and other merchandise would be of the same high quality which the salesmen demonstrated to the investor; (4) a refund of the investment would be paid within one year after the contract if either party desired to cancel, subject to certain adjustments for inventory outstanding.
According to the witnesses, however, once the money was paid to defendants, they received small amounts of merchandise, often of poorer quality than had been represented; that while the accounts and locations were set up, the tools and other merchandise did not sell and the locations were not of the quality represented. The witnesses' complaints went unsatisfied. While one witness did report that her distributorship made some profit for a time, the other 12 testified that they made no money from the investment, and none of them received a refund when requested from defendants. Ultimately they were notified by letter that AITC had gone out of business.
Serge Gaudry, testifying for the defense, explained the theory of the business as follows:
"* * * Well, it seemed to me if I was going to have a successful business, that I had to have some kind of an incentive for my distributors to go out there and perform. So, I thought if I would take a deposit from them of $4,000.00, $5,000.00, $8,000.00, and told them that I would give that deposit back to them at a rate of 10% on their reorders, that gave me two things. First of all, they would keep buying from me. If I was holding that money the only way they would get it back by buying products from me. They would always come back and that's where once I set them up in business they could go and find their own source of things and in that way they always would come back to me and that gave them incentive to go out and promote their sales,
Well, what I intended to do was build a network of successful distributors, maybe build it up to a hundred, two hundred distributors; with that many that would give me a volume of business big enough that I could pay at a cheap enough price. I would also realize a nice profit on reorders; my people, distributors would realize a nice profit and I could make a living and that's what I had in mind."
According to Gaudry, the company's ultimate failure was due to his lack of business experience; that the business was under capitalized; there was not sufficient reorder to pay refunds as the demands came in; finally, the product simply did not sell.
The first issue on appeal is whether the indictment was valid. Defendants contend that the failure of the indictment to set forth the acts of deception rendered it fatally defective. The indictment reads as follows:
"That on or about the 27th day of December, 1972, in the County of Winnebago and State of Illinois, ORRIS BALLARD, LAWRENCE BALLARD, SERGE GAUDRY, DONALD RUSSELL committed the offense of theft, in that they knowingly obtained by deception, control over property of the owner, to wit: an amount of money exceeding $150. belonging to Max Boynton, with the intent to deprive Max Boynton, permanently of the use and benefit of the property, in violation of Paragraph 16-1, Chapter 38, Illinois Revised Statutes, (1971) as amended."
Each of the 14 succeeding counts alleged theft by deception in the same manner as alleged in the count above, except as to the date of the offense and the owner of the property.
1 The purpose of an indictment is to appraise a defendant of the exact crime with which he is charged so that he may prepare his defense, and may plead the judgment in bar of a subsequent prosecution for the same offense. (People v. Smalley (1973), 10 Ill. App.3d 416, 294 N.E.2d 305.) It is well established that an indictment phrased in the language of the statute creating the crime is sufficiently certain where the words of the statute so particularize the offense by their use alone as to notify the accused of the precise offense charged against him. But where the statute does not specifically define the crime or does so only in general terms, some act showing an alleged violation of the statute must be averred. People v. Grieco (1970), 44 Ill.2d 407, 409-10, 255 N.E.2d 897, 899.
In People v. Grieco, defendant was charged with battery in an indictment which read as follows:
"* * * Joseph Grieco * * *, committed the offense of battery, in that they, intentionally and knowingly, without legal justification, committed a battery on George Quarnstrom which caused great bodily harm to said George Quarnstrom, in violation of ch. 38, § 12-3, of the Ill. Rev. Stats., 1963, * * *." (44 Ill.2d 407, 408.)
In holding that the indictment there met the test for certainty our supreme court pointed out that the term "battery" was one of common usage and understanding, and while the indictment was phrased in the language of the statute, the statute itself set forth all elements necessary to constitute the offense intended to be punished. Coupled with the allegations setting forth the name of the person upon whom the battery was committed and the date it occurred, the indictment was sufficiently certain to enable defendant to prepare a defense and to permit any judgment entered to be pleaded in bar of a subsequent indictment for the same offense.
Applying this reasoning to the case before us, the indictment here is phrased in the language of the statute which sets forth all the elements necessary to constitute the offense intended to be punished. The word "theft" is a word commonly understood; moreover, the indictment particularizes the charge as theft by deception. The indictment also sets forth the names of the persons whose property was taken as well as the approximate date when the thefts occurred. Moreover, a motion for a bill of particulars was available to defendants; while defendant Russell's motion for such a bill was denied, no request for one by the remaining defendants, represented by other counsel, was ever made. As a practical matter, the record demonstrates no difficulty in preparing and presenting a defense and clearly the indictment is sufficient to support a plea of double jeopardy should the need arise. People v. Grieco.
We have examined the cases relied on by defendants on this issue, principally People v. Leach (1972), 3 Ill. App.3d 389, 279 N.E.2d 450; People v. Aud (1971), 1 Ill. App.3d 867, 276 N.E.2d 97; and State v. Kesterson (Mo. 1966), 403 S.W.2d 606. However, in those cases the court found that indictments phrased in the language of the statute were not sufficient where the indictment did not give a defendant notice of the crime with which she was charged (Leach); where the statute itself did not set forth all the elements of the offense and there were no other allegations in the indictments from which defendants could definitely ascertain what acts they were charged with (Aud); and where it would not be sufficient to bar further prosecution for the same offense (Kesterson).
2 It is the policy of our modern courts> to disregard mere technical objections and require only that the indictment state the essential elements of the offense; whether an indictment sufficiently charges an offense does not depend on nice attention to technicalities of pleadings or formalistic recital of allegations. (People v. DePratto (1976), 36 Ill. App.3d 338, 343 N.E.2d 628.) As the indictment in the case before us fulfills the requirements outlined above, we hold that the failure of the indictment to specifically allege the various acts of deceptions does not render it invalid.
Next, defendants contend that the State failed to prove them guilty beyond a reasonable doubt. As outlined above, 13 complaining witnesses testified as to the promises both oral and written made to them by defendants and the failure of the defendants to fulfill those promises, particularly the failure to provide refunds of the investment. On the other hand defendants contend that while they intended the business to be successful, due to the reasons referred to earlier, the business failed.
Defendants correctly point out that failure to perform the promise or promises standing alone is not evidence that the offender did not intend to perform, and that the State has the burden of proving that the defendants made their various promises knowing either that they did not intend to perform the promises or that ...