APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
A. KRAUSE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1979.
In this consolidated appeal we review the convictions of the defendant James H. Clark, formerly county treasurer of Du Page County and treasurer of several other public bodies in that county; and of the defendant Richard L. Curtis, formerly an official of the Michigan Avenue National Bank of Chicago. Following a jury trial Clark was convicted of multiple charges including the offenses of bribery (Ill. Rev. Stat. 1975, ch. 38, par. 33-1), violation of the county treasurer's act (Ill. Rev. Stat. 1975, ch. 36, par. 38), violation of the corrupt practices act (Ill. Rev. Stat. 1975, ch. 102, par. 3) and official misconduct (Ill. Rev. Stat. 1975, ch. 38, par. 33-3(d)), and Curtis was convicted of various counts of bribery and violation of the county treasurer's act. (The court directed a verdict as to additional counts of the indictments charging both defendants with conspiracy.) Each defendant was sentenced to 24 months probation with four to eight months of the period to be spent in a work release center and fined $10,000.
In substance, the indictments charged that on March 9, 1971, at the request of Clark, the Du Page County Forest Preserve District adopted a resolution designating the Michigan Avenue National Bank (Michigan) as a depository of public funds for the district controlled by Clark as its treasurer; on or about March 11, 1971, Curtis, then president of Michigan, arranged for a loan of $50,000 from the Drovers National Bank of Chicago (Drovers) for Clark; on March 16, 1971, at the request of Clark the Du Page County Board of Supervisors designated Michigan as a depository for county funds controlled by Clark as county treasurer; on or about March 29, 1971, Clark opened a non-interest-bearing demand deposit account on behalf of the Forest Preserve District at Michigan with an initial deposit of $516,790; on subsequent dates Clark deposited additional public funds in Michigan demand accounts, with deposits at times being in excess of $3,500,000 and additional funds in certificates of deposit at times in excess of $8,000,000. The indictments further charged that during 1971 Drovers made additional loans to Clark with a year end balance of $241,000, and that these loans were made through the good offices of Curtis in exchange for the use of Michigan as a depository for Du Page County public funds. It was further charged that during 1972 Clark's loans from Drovers increased to $439,000, in 1973 to $635,000, and in 1974 to $904,000; that the loans remained unpaid until July 10, 1975, when Clark filed a petition under chapter XII of the Federal Bankruptcy Act; and that in 1976 Drovers charged $693,000 of the loss to its bad debts reserve. The indictments further charged that Clark "knowingly accepted these loans for the performance of acts in his official capacity, such acts being the deposit of public funds under his control in the Michigan Avenue National Bank of Chicago."
Both defendants pleaded not guilty to all counts of the indictments. On July 6, 1976, Curtis moved for a severance. He also moved for a dismissal of the indictments on the ground that they did not state an offense against him, and moved for a change of venue on the ground that he could not receive a fair trial in Du Page County. On July 22, 1976, defendant Clark moved for a transfer of the trial from Du Page County to some other venue on the grounds of prejudicial pretrial publicity. He also moved to dismiss the indictments. These motions were denied. On a later date defendant Clark also moved for a change of venue to Cook County alleging that none of the acts charged took place in Du Page County and that the inhabitants of that county were prejudiced against him. In addition, on Clark's motion several of the counts contained in the original indictments were severed. (We have deferred statement of the relevant evidence brought out in the trial of the case to the discussion of the various points raised by the defendants.)
Each defendant has claimed numerous errors as a basis for a reversal or for reversal and a remand for a new trial. The principal issues common to both appeals are first considered and include: (1) is the county treasurer's act unconstitutional; (2) should a severance have been granted; (3) was venue properly fixed in Du Page County; and (4) alternatively, should that question have gone to the jury?
Constitutionality of the county treasurer's act.
1-3 We first conclude that the county treasurer's act (Ill. Rev. Stat. 1975, ch. 36, par. 17 et seq.) is constitutional. The claim of unconstitutionality is essentially based on the claim of defendants that the act arbitrarily applies criminal sanctions only to the proscribed conduct in counties of more than 150,000 inhabitants, that it is impermissibly vague in its terms, and that it contains no requirement of a specific state of mind or intent to constitute a violation which entails severe consequences.
4 A classification based on population calls for the application of the same principles that would be applied when reviewing the constitutionality of any other legislative action. Thus, in upholding a statute which applied criminal sanctions in connection with the registration of copper purchases but which did not apply in municipalities with populations of 1 million or more, the Illinois Supreme Court upheld the legislation against constitutional attack, stating:
"`* * * a legislative classification based upon population will be sustained where founded on a rational difference of situation or condition existing in the persons or objects upon which it rests and there is a reasonable basis for the classification in view of the objects and purposes to be accomplished. [Citations.]' * * *
Furthermore, we will presume that the legislature surveyed the conditions existing in the population centers of this State and pursued the various means available to the General Assembly not available to this court in informing itself of these conditions before enacting a classification based on population. This court will nullify such a classification only when it can be said that the same is `clearly unreasonable or palpably arbitrary.' [Citations.]
Another established principle applicable to this case holds that those who attack the validity of the classification have the burden of proving that the same is unreasonable or arbitrary." (People v. Palkes, 52 Ill.2d 472, 477 (1972).)
See also People v. Warfield, 26 Ill. App.3d 772, 774-75 (1975); cf. People v. Fix, 44 Ill. App.3d 607 (1976).
The legislature may well have believed that the problem of county treasurers taking "fees, perquisites and emoluments" (Ill. Rev. Stat. 1975, ch. 36, par. 36) in counties having populations exceeding 150,000 required special legislation. The incidence of county treasurers taking outside compensation may not have been perceived as being as great a problem in the smaller counties. The legislature may have concluded that existing bribery laws were sufficient to police the actions of county treasurers in such counties. (See People v. Palkes, 52 Ill.2d 472, 478 (1972).) It should be remembered that the presumption is that a legislative classification is reasonable. (See, e.g., Salsburg v. Maryland, 346 U.S. 545, 553, 98 L.Ed. 281, 289, 74 S.Ct. 280, 284 (1954).) The defendants have not, in our view, overcome this presumption in this case. People v. Palkes, 52 Ill.2d 472, 476-77 (1972).
The further argument that the terms "fees, perquisites and emoluments * * *" required under the act to be paid into the county treasury (Ill. Rev. Stat. 1975, ch. 36, par. 36) do not adequately, without definition, inform the defendants of the proscribed conduct, is next considered. Defendants note in this connection that the foreman of the jury sent a note to the judge requesting a definition for the terms "perquisites and emoluments." However, the jury was sufficiently informed that it should apply "common English usage."
5 It is, of course, true that a criminal statute which seeks to punish an individual but fails to give him adequate notice of what conduct is prohibited would be an unconstitutional deprivation of due process. (People v. Dednam, 55 Ill.2d 565, 568 (1973).) However, the test is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. (People v. Dednam, at 569). We conclude that the terms used pass this test.
The common dictionary definition of "perquisite" is "privilege, gain, or profit incidental to an employment in addition to regular salary or wages"; and "emolument" is defined as a "profit or perquisites from office, employment, or labor"; a "fee" is a "perquisite" or an "allowance" (Webster's Third New International Dictionary (1961)); and "emolument" has been judicially defined "by reference to any standard * * * that which is received as a compensation for services, or as a pecuniary consideration annexed to the possession of an office, as, salary, fees and perquisites." (People v. Foster, 133 Ill. 496, 519 (1890). See also County of Lake v. Westerfield, 196 Ill. App. 432, 439 (1915).) The terms are therefore not so obscure that they fail to give a person of ordinary intelligence fair notice of what kind of conduct is forbidden by the statute. (United States v. Harriss, 347 U.S. 612, 617, 98 L.Ed. 989, 996, 74 S.Ct. 808, 812 (1954).) The fact that, as defendants argue, there may be marginal cases in which it is difficult to determine whether a gift or a purchase for a public official is within the proscription of the statute does not invalidate it. (See United States v. National Dairy Products Corp., 372 U.S. 29, 32, 9 L.Ed.2d 561, 565, 83 S.Ct. 594, 597 (1963); City of Decatur v. Kushmer, 43 Ill.2d 334, 336 (1969).) The use of the terms "fees, perquisites and emoluments" does not therefore make the statute unconstitutionally vague.
We reach the further argument of the defendants that the failure in the county treasurer's act (Ill. Rev. Stat. 1975, ch. 36, par. 38) to specify a required mental state creates an illegal absolute liability crime. Section 22 of the act (Ill. Rev. Stat. 1975, ch. 36, par. 38) provides in substance that the making of a personal profit or emolument by the county treasurer or any other county officer out of county monies by "loaning, depositing or otherwise using or disposing of the same in any manner whatsoever" is a class 3 felony. The section also provides that any other violation of the provisions of the county treasurer's act, if done "willfully," is punishable as a class 4 felony.
6 We cannot agree that section 22 of the treasurer's act is intended to impose absolute liability for any unintended personal profit or emolument in the loaning or depositing of county money. Where the purpose of a statute is the punishment of a crime with substantial consequences of imprisonment and large fines, rather than mere regulatory measures designed for the "achievement of some social betterment rather than the punishment of the crimes," absolute liability will not be found to be the intent of the legislature. (See Morissette v. United States, 342 U.S. 246, 96 L.Ed. 288, 72 S.Ct. 240, 247 (1952).) Instead, the statute will be read as incorporating a mental state requirement as prescribed by section 4-3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 4-3 et seq.). Since the treasurer's act does not set out an appropriate state of mind for violation of the deposit and loan provision, either intent, knowledge or recklessness as a state of mind is applicable. (Ill. Rev. Stat. 1975, ch. 38, par. 4-3(b).) Consequently defendants' contention that this section of the statute is unconstitutional because it imposes absolute liability is not persuasive. See People v. Valley Steel Products Co., 71 Ill.2d 408, 425 (1978).
Both defendants have maintained at all times that venue was improperly laid in Du Page County. Section 1-6 of the Criminal Code requires that a criminal action shall be tried in the county where "the offense was committed", with exceptions not here material. (Ill. Rev. Stat. 1975, ch. 38, par. 1-6.) Both defendants therefore can only be tried in the county "where the offense was committed." Both defendants urge that none of the alleged acts in the indictments occurred in Du Page County. There appears to be no evidence that any of the loans were consummated, that any of the conversations took place or that there were any transfers of money in Du Page County. Rather, all of these operative facts took place in Cook County. If venue is properly to be found in Du Page County it must then be based on either the fact that Clark was a county official of Du Page County who sought the designation of depositories by the County Board of Supervisors in Du Page County or that, as a public officer of Du Page County, he breached a fiduciary duty to that county.
7 It is, of course, true that a charge that a crime was committed in a particular county is a material averment which must be proved beyond a reasonable doubt to sustain a conviction, although it may be proved by circumstantial evidence. (People v. Allen, 413 Ill. 69, 76 (1952). See also Ill. Rev. Stat. 1975, ch. 38, par. 1-6.) If the record does not affirmatively show that the offense was committed in the county alleged in the indictment a judgment of conviction must be reversed. (People v. O'Gara, 271 Ill. 138, 142 (1915).) However, if a crime against the State is committed partly in one county and partly in another, venue may be proper in either county. People v. Dillingham, 111 Ill. App.2d 161, 166 (1969).
As a general rule the situs of a crime is to be determined from the nature of the crime alleged and the location of the act or acts which constitute it. See, e.g., Travis v. United States, 364 U.S. 631, 5 L.Ed.2d 340, 81 S.Ct. 358, 361 (1961).
8 Here, the essence of the charges against Clark is that he was an unfaithful fiduciary who, as a public official of Du Page County, owed the people of that county the duty to deal impartially with public funds in accordance with the law which forbade him from accepting an emolument for doing an official act. Faithful performance of official duties requires that one not be called upon to make decisions that can advance an individual's interest. (Brown v. Kirk, 64 Ill.2d 144, 149 (1976).) Further, a public fiduciary relationship can be abused even absent any loss to the public. City of Chicago ex rel. Cohen v. Keane, 64 Ill.2d 559, 566 (1976). See also United States v. Carter, 217 U.S. 286, 54 L.Ed. 769, 30 S.Ct. 515, 520 (1910).
It should be further noted that Clark, as county treasurer of Du Page County, in order to relieve himself of personal responsibility in the deposit of county funds, necessarily called upon the County Board of Supervisors to designate the depositories pursuant to section 4 of the county treasurer's act. (Ill. Rev. Stat. 1975, ch. 36, par. 20). It was also to the people of Du Page County through their representative Board of Supervisors that he was under a duty to account for his management of county funds. Ill. Rev. Stat. 1975, ch. 36, pars. 10-15.
9 An analogy can be made to embezzlement cases in which there are numerous holdings that the unfaithful agent can be tried either in the place where he converts his principal's property to his own use or in a place where he was under a duty to account. (See Kossakowski v. People, 177 Ill. 563, 568 (1899). See also People v. Davis, 269 Ill. 256, 271-72 (1915).) As noted in Keane, "[t]he fiduciary responsibility of a public officer cannot be less than that of a private individual." (64 Ill.2d 559, 565.) We therefore conclude that where a public official by virtue of his public office is tried for alleged offenses which directly or indirectly involve the breach of fiduciary duties as to funds under his control, venue may properly be laid in the county of his office.
10 We further conclude that venue as to Curtis was also properly fixed in Du Page County on the theory of accountability pursuant to section 1-6(n) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1-6(n)). The theory of the charge against Curtis was that he aided in the commission of the charged offense in Du Page County and under the statute he could therefore be tried for the offense in either Du Page or Cook County.
11 We further note that under the circumstances of this case the trial of the case in one of two adjoining counties in no way undercuts the policy which underlies the safeguards regarding the trial of crimes. That policy has been defined as "the unfairness and hardship to which trial in an environment alien to the accused exposes him." United States v. Johnson, 323 U.S. 273, 275, 89 L.Ed. 236, 238, 65 S.Ct. 249, 250 (1944).
The defendants additionally complain that even if the facts would support the fixing of venue in Du Page County the matter should have been determined by the jury under proper instructions. We agree that where the issue of venue is controverted the matter should be given to the jury. People v. Anderson, 355 Ill. 289, 303 (1934).
12 However, in the instant case, there was no dispute as to whether Clark was the treasurer of Du Page County at the time of the alleged offenses. It thus appears, in view of our holding that an unfaithful public fiduciary can be tried in the county where he was under a duty to account, that Du Page County was, as a matter of law, a proper venue for the trial of Clark. Indeed, it appears that the jury could not have venue improperly fixed in Du Page County unless it acquitted Clark of all charges, in which case the issue of venue would be of no consequence. Hence, we hold that the trial court did not err as to Clark in refusing to instruct the jury on venue.
13, 14 Section 1-6(n) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1-6(n)) provides that, "Where a person in one county solicits, aids, abets, agrees, or attempts to aid another in the planning or commission of an offense in another county, he may be tried for the offense in either county." It thus appears that venue was properly fixed, as a matter of law, as to defendant Curtis in Du Page County also. If the jury found him guilty of any of the offenses charged against him, it would necessarily have to find that he, at the very least, "solicited" Clark to commit a crime, the situs of which would be Du Page County. Hence, we also conclude that the trial court did not err as to Curtis in refusing to instruct the jury as to venue. In any event, the error, if any, in refusing to give an instruction on this issue as to either defendant was harmless beyond a reasonable doubt. See, e.g., People v. Ward, 32 Ill.2d 253, 256 (1965).
15 We also cannot agree with the contention of both defendants that the failure to grant a severance of trial amounted to reversible error.
16 Severance motions are subject to well established rules. Normally, persons indicted jointly for the commission of an offense should be tried together (People v. Brooks, 51 Ill.2d 156, 166 (1972)); the motion is addressed to the sound discretion of the trial court which a reviewing court will not interfere within the absence of abuse of discretion. (People v. Yonder, 44 Ill.2d 376, 386 (1969).) The trial court in ruling on the motion, must consider whether the defenses of those being jointly tried are so antagonistic that a fair trial can be had only by severance (44 Ill.2d 376, 386. See also Ill. Rev. Stat. 1975, ch. 38, par. 114-8); but the mere apprehension of a conflicting situation is not sufficient grounds for granting the motion (People v. Nickson, 58 Ill. App.3d 470, 482 (1978)); and a trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice appears. Schaffer v. United States, 362 U.S. 511, 4 L.Ed.2d 921, 80 S.Ct. 945, 948 (1960); cf. People v. Betson, 362 Ill. 502, 507-08 (1936).
Clark in his motion for severance presented prior to trial alleged that he would be prejudiced if required to be tried with the co-defendants (Curtis, as well as with other defendants employed by the banks involved who were alleged to be part of the conspiracies and were later dismissed from the case). Clark stated that if tried alone he would subpoena the co-defendants to testify in his behalf; that they had indicated that they would give favorable testimony but would not testify in a joint trial "when said testimony could incriminate them in any way"; and their testimony would
"* * * tend to indicate that the Defendant did not commit any of the offenses with which he is charged and their testimony would further show that the Defendant was totally unaware of the transfer of amounts of cash in various county depository banks to banks in which the Defendant had taken loans. Said transfers being in the form of compensating balances."
Curtis also moved for a severance before trial essentially on the grounds that the people of Du Page County, because of the great publicity given the case, had formed opinions as to Clark's guilt or innocence which in either case would reflect unfavorably on Curtis, who was not a resident of nor known in the county.
In order to properly analyze the effect of the pretrial motions to sever as well as the renewal of the motions during trial, we must briefly review the evidence which would bear on the claims of prejudice.
The State introduced several letters written by Curtis to one of the original co-defendants, Whelan, who was president of Drovers. One letter dated March 16, 1971, reads:
"While this letter obviously must be kept in a confidential file, it is our assurance to you that a $50,000 advance to James H. Clark, the County Treasurer of DuPage County, will be repurchased upon your request.
This matter has been reviewed with my Executive Committee and they are aware that the note is being placed in your bank and that we are under obligation to repurchase it upon demand."
A letter dated March 29, 1971:
"My friend, James Clark, the Treasurer of DuPage County has now asked that we change his borrowing arrangement just slightly.
On April 6 he would like to close the purchase contract and would like to do so if possible at the Drovers National Bank. He is buying his acreage under a contract wherein he will pay $50,000 down and the balance of $250,000 will be in a form of a first real estate mortgage and taken back by the sellers. He would then put the acreage and property into a trust in the Drovers National Bank and assign to the note the beneficial interest. He would then personally guarantee the back side of the note.
If you would be so good as to assign a trust number for the purpose of this land trust and make some arrangement for a closing in your organization on April 6, I would be most appreciative."
The State also produced a letter written by Curtis to Clark dated March 11, 1971, in which Curtis notes that he is
"* * * enclosing a note for the $50,000 loan which we have arranged for you through the Drovers National Bank of Chicago. It is undated, and the funds will be made available when needed.
Jim, I certainly enjoyed our lunch yesterday and look forward to working closely with you. I feel confident that it can be a practical and workable arrangement."
A letter dated June 24, 1971 from Curtis to Patrick C. O'Malley, vice president of Drovers, was admitted in evidence as to Curtis and states:
"This letter is being written in connection with the $50,000 secured loan which you extended to Mr. James H. Clark on June 23, 1971.
We hereby agree that in the case of default on this loan we will repurchase it at your request."
Mr. O'Malley was also called. He testified that all loans from Drovers to Mr. Clark had been renewed as recently as 1975. The bank ledger, although not entirely clear, indicates a renewal of a loan of $871,561.23 on the Clark account as late as March 10, 1975.
O'Malley further testified that some time in the spring or early summer of 1971 Mr. Whelan had a conversation with him in which Whelan stated that Clark wanted to borrow more money from Drovers, but that Drovers would extend the credit only on the conditions that the loan be funded by Michigan and also that Michigan agree to ...