It is my opinion that the crime committed by the plaintiffs in error was not the confidence game. The gist of that crime is the obtaining of the confidence of the victim by some false representation or device. (People v. Peers, 307 Ill. 539;People v. Harrington, 310 id. 613.) In this case the victim's money was lost through fraudulent tricks and devices employed by various people while he was engaged in playing cards for money. It was not lost through any abuse of confidence. He was given no assurance that he would win. He was engaged in an adventure in which *Page 344 he was cheated, but which, if played honestly, might have resulted in his winning or losing. There is no evidence that the defendants designedly obtained his confidence or that he reposed any confidence in them. In the absence of such evidence no conviction was warranted.
The indictment was brought under section 98 of the Criminal Code, which defines the confidence game. It should have been brought under section 100, which provides: "Whoever, by the game of 'three card monte,' so called, or any other game, device, sleight of hand, pretensions to fortune telling, trick or other means whatever, by use of cards or other implements or instruments, fraudulently obtains from another person property of any description, shall be punished as in case of larceny of property of like value." A swindling operation which is not connected with the element of confidence fraudulently obtained for the purpose of the swindle does not constitute the crime of confidence game. (People v. Rallo, 293 Ill. 304; People v.Santow, id. 430.) The difference between sections 98 and 100 is that under the former it is essential that the victim's confidence shall first be obtained through some trick or device, and it then makes no difference how the money or property is obtained from him so long as it is done in pursuance of the design, but under the latter section the essential element is that the money or property must be obtained by means of a trick or device operating at the time and but for which the victim would not have parted with it. Abuse of confidence wrongfully obtained is not a necessary element. This vital difference appears to have been overlooked in this case.
Mr. JUSTICE HERRICK concurs in this dissent. *Page 345