dissenting :
We do not concur in the opinion of the majority of the court in reversing this judgment on the ground tip at the verdict of the jury is not supported by the evidence. That there is no error in the rulings of the court on the motion to quash the indictment, the admission or rejection of evidence or the giving or refusing of instructions may be fairly assumed, since none is pointed out in the foregoing opinion of the court, and the judgment of reversal is based entirely on the want of sufficient evidence to support it. It is therefore unnecessary to discuss other questions that have been urged by plaintiffs in error as reasons why the judgment should be reversed. All these questions have been ignored and eliminated by the majority view and it is not our purpose to discuss them, but we respectfully dissent from the foregoing opinion of the majority of the court in holding that this judgment should be reversed and the cause remanded because the same is not supported by the evidence. We fully recognize the right and the duty of this court to reverse and remand a criminal cause whenever it appears that the verdict of the jury is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice; (Graham v. People, 115 Ill. 566; Sanders v. People, 124 id. 218;) but it has always been the rule of this court to use this power with great caution, and especially in cases where the record is otherwise free from error. In Smith v. People, 103 Ill. 82, on page 84, it was said: “The guilt or innocence of the accused is always a question for the jury, and their finding will seldom be disturbed, unless where it is manifest they have been misled by the instructions of the court to the prejudice of the defendant.” We are impressed that the facts in the case at bar do not bring it within the rulé which authorizes or requires this court to interfere with the conviction on the sole ground upon which the opinion of the court in this case is based.
In addition to the facts stated in the foregoing opinion of the court, in order to get a clear view of the exact character of the business in which plaintiffs in error were engaged, it is necessary to state some additional matters.
As already stated, plaintiffs in error were conducting a sort of collecting business, under the name of “The Merchants’ Credit Guide Company.” This concern was incorporated and purported to have a paid up capital of $250,000. In truth and in fact it did not have any capital, and the evidence shows conclusively that $500 was all the money that was .ever paid into the treasury which was not drawn out by the persons who paid it in. What became of the $500 does not appear, but it is a 'fair inference that one or other, or both, of plaintiffs in error received the benefit of it. This so-called Merchants’ Credit Guide Company had four stereotyped letters which were used by its subscribers in intimidating debtors to pay accounts due subscribers. Letter No. 1 in the record is, in part, as follows;
“[Name of Debtor.]
“Dear Sir—We have been requested by one of our subscribers to furnish a report concerning your financial responsibility and promptness in meeting your obligations. In the course of our investigations we incidentally learned that there is an account against you held by...........of.......amounting to $...., which is past due. Will you please advise us by return mail why this account should not be paid, and whether you can arrange for a settlement with creditor by..........., at which time we are to file our report.
“We make this special inquiry of you direct, because we wish to avoid doing you an injustice in our report. As we have not found other delinquent accounts against you, we shall feel justified in furnishing a favorable report, provided you can arrange this matter satisfactorily.
“Please note that this account is not in our hands for collection, nor has the creditor written us or made any unfavorable report of you to our representative. We enclose addressed envelope for your reply.
“Yours very truly,
Merchants' Credit Guide Co.”
Each subscriber was furnished a supply of letters, of which the foregoing is a copy of No. I. They were also furnished with copies of letters numbered 2, 3 and 4, which were intended to be used to terrify the debtor and raise his apprehensions of a loss of credit unless he made a remittance, regardless of the reasons which caused the delay. It must be borne in mind that these letters were not sent out by the so-called Merchants’ Credit Guide Company, but the subscriber bought the privilege of the plaintiffs in error of sending out these letters indiscriminately, whenever, in the judgment of such subscriber, it would aid in coercing the payment of some past due demand. The answer from the debtor would, of course, be sent to the Merchants’ Credit Guide Company and would be by plaintiffs in error turned over to the subscriber who had sent it out. This, so far as the evidence shows, was the only duty performed by plaintiffs in error in connection with this scheme for collecting debts. These letters were copyrighted and constituted the capital of this corporation, which was increased from $2500 [the amount for which it was incorporated in 1899) to $250,000 in September, 1903. Aside from a slight increase in the number of subscribers the corporation had no more assets after the capital was raised to $250,000 than it had when it was $2500. It was to all intents and purposes a mere paper corporation, doing business on the imaginary-value of some copyrighted falsehoods contained in the so-called letters above referred to.
It is said in the "opinion of the majority of the court: “The cases of Maxwell v. People, 158 Ill. 248, DuBois v. People, 200 id. 157, Hughes v. People, 223 id. 417, and Chilson v. People, 224 id. 535, are essentially different in all their material facts from the case at bar. In those cases the parties convicted under indictments charging them with obtaining money by means of the confidence game were not engaged in any legitimate business having any connection with the acts which resulted in their indictment and conviction, but the only business in which the evidence shows the defendants in those cases were engaged was deceiving innocent and unsuspecting persons, and obtaining money from them by devices and tricks that left no room for doubt as to the criminal character of the acts, and were within the definition of the confidence game.”
With this statement these four previous decisions of this court are passed over, and no further attempt is made to distinguish them from the case at bar. We do not think that the case at bar can be distinguished from the three latest decisions of this court above cited. By implication, the majority opinion lends the certificate of legitimacy to the business in which plaintiffs in error were engaged. How it can be said that the business of plaintiffs in error is legitimate when it is built upon a tissue of falsehood and fraud, from the very inception of it until its final conclusion, is something that we cannot comprehend. Take the letter that is set out above for example, and it is a brazen falsehood in every sentence and in every line of it, and is a fraud upon the debtor which no reputable business man would want to perpetrate upon his customer unless he never expected to have any interest in him beyond the collection of the amount that then might be due. The debtor who receives such a letter will be deceived. First, it is a deception as to the sender of the letter. It appears to come from the Merchants’ Credit Guide Company when in truth it is sent by the person claiming the demand against him, and the body of the letter is filled with false representation, and is sent with the manifest purpose of intimidating the debtor into the payment of the demand, whether just or unjust, to avoid the execution of the ill-concealed threat to make an unfavorable report upon his credit. The letter purports to be sent out of a tender regard for the debtor, “because we wish to avoid doing you an injustice in our report,” when the real purpose is to coerce the payment of the- bill. The truth is, that the Merchants’ Credit Guide Company has received no inquiry concerning the recipient of this communication, and will have no occasion to make any report, favorable or unfavorable, with respect to his financial standing. Still, the letter advises the debtor that “we shall feel justified in furnishing a favorable report, provided you can arrange this matter satisfactorily.” A business that requires a resort to such subterfuges and deception as plaintiffs in error were guilty of can hardly be said to be a “legitimate business.” To pay one’s just debts is a duty that every citizen owes, and creditors have a right to proceed by all lawful means, in or out of court, for the purpose of collecting amounts justly due; but the law draws a line of distinction between methods which are proper and lawful and those which are unlawful and improper, permitting the use of the former and denying the employment of the latter. Because the end sought to be accomplished is lawful it must not be assumed that any means that ingenuity can devise to accomplish that end are therefore legal.
But if it be granted that the relations of plaintiffs in error with their subscribers, and through the subscribers with their debtors, is not absolutely illegal as being in violation of any statute of the State or rule of the common law, still in the relations of plaintiffs in error to their managing agents who were induced to buy worthless stock in this concern, their conduct seems to us to come clearly within the definition of “confidence game,” as defined by this court in the cases above cited. The transaction in question with the complaining witness, Kitzeman, was a swindling operation, in which advantage was taken of the confidence reposed by the prosecuting witness in the plaintiffs in error,—a confidence that had been obtained by deceit and false pretenses,—which brings the case clearly within the rule laid down in DuBois v. People, supra, Hughes v. People supra, and Chilson v. People, supra. In the Chilson case, on page 539, this court said: “Where a contract, apparently legal, is entered into by one party with the intention of taking no steps to carry it out but with the wrongful intent of causing the other to part with his money without receiving any adequate consideration therefor, such contract may, and in this case did, become a mere incident of the ‘false and fraudulent scheme.’ The ordinary case of agreeing to sell the gullible one a gold-brick now in the possession of the aged Indian presents a breach of a contract, and yet counsel would scarcely pretend that it is for that reason any the less a confidence game. The fact that the affair was made to assume the guise of an ordinary business transaction, whereby, as a preliminary, Spooner was required to pay his money for the lots, is without significance. It is the substance, and not the form, that is material.”
The language of the above quotation is applicable to the facts of the case in hand, where plaintiffs in error went through the form of employing Kitzeman and of selling him a block of stock in the so-called Merchants’ Credit Guide Company. That this stock was utterly worthless is shown beyond all reasonable doubt. The stock was sold by means of false and fraudulent representations, if the evidence of Kitzeman and the witnesses other than the plaintiffs in error is to be believed. Plaintiffs in error were co-operating together for the purpose of getting the money of the complaining witness for this stock. That was the substance of the whole transaction. While, in form, it assumed the guise of a pretended employment of the complaining witness as a so-called managing agent in certain territory, yet no one can read this record and have any doubt remaining that the great concern of plaintiffs in error was to defraud the complaining witness out of a sum of money for the pretended sale of stock that was not worth the paper upon which it was printed.
It is said in the opinion, and in the record by plaintiffs in error, that they were doing an extensive business and had some seven hundred subscribers on their list; but it is to be noted that in every instance where plaintiffs in error employed a managing agent and induced him to buy a block of this stock it resulted in completely defrauding the party out of all the money that he paid to plaintiffs in error. Not a single managing agent is called in .from the field to testify that he was not defrauded by the plaintiffs in error out of all the money that he had paid them. On the contrary, two others besides the complaining witness lost $1000 and $1500, respectively, in the same so-called “legitimate business” in which the plaintiffs in error were engaged. In short, speaking from the standpoint of this record, the plaintiffs in error swindled and defrauded every person to whom this stock was sold, out of the entire amount that he paid for it. If this is not confidence game, then in our judgment there are several persons in the penitentiary in this State for that offense who ought to be liberated.
We are of the opinion that the judgment ought to be affirmed.