In each count the defendants were charged with obtaining property from Douglas. Flake without any designation of the kind or character of the property, or anything, except the name Douglas Flake, to distinguish the offense from obtaining, by means or by use of the confidence game, anything of any sort or description which could be the subject of property. Section g of the bill of rights provides that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, and it has uniformly been held that in fulfillment of that guaranty every indictment must, either by a sufficient statutory description or other proper averments, so identify the particular offense as to notify the defendant of the crime laid to his charge. This indictment did not specify the particular offense charged, and would not have been sufficient, under the bill of rights, in an indictment for larceny, embezzlement, obtaining property by false pretenses or in the case of any other offense relating to property, or under the established rules of criminal pleading at the common law. The argument for the sufficiency of the indictment rests upon section 99 of division 1 of the Criminal Code and section 6 of division 11 of that code. Section 99 declares that “it shall be deemed and held a sufficient description of the offense, to charge that the accused did, on, etc., unlawfully and feloniously obtain, or attempt to obtain, (as the case may be,) from A B (here insert the name of the person defrauded or attempted to be defrauded,) his money (or property, in case it be not money,) by means and by use of the confidence game.” Section 6 of division 11 provides that it shall be sufficient to charge the defendant with a statutory offense in the terms and language of the statute describing the offense or so plainly that the nature of the offense may be easily understood by the jury.
The General Assembly may prescribe the form of an indictment on condition that the form prescribed meets the requirements of the constitution, and in this case the form prescribed uses the generic term “confidence game” as including the mode, manner and means by. which confidence may be created and money or property obtained. The term includes all the various means, instruments or devices resorted to to secure the confidence of the one from whom money or property is obtained, and constituting, in the common understanding, the crime in question. The manifest purpose of the form prescribed is to obviate the necessity of specifying the particular act or acts that may be embraced within the general description of the confidence game, but the nature and cause of a criminal prosecution of which the accused must be informed by the indictment are not equivalent to the mode or manner or specific agepcy used to accomplish the result. A statement of the mode or manner of committing the crime, or the means employed, is not necessary to give the accused information as to the nature of the accusation which he is called upon to meet nor to identify the particular offense. Regarded as obviating the necessity of specifying a particular means, instrument or device resorted to to secure confidence and obtain money or property, the form has been sustained in numerous cases and violates no constitutional provision. The conclusion reached by the majority in this case has resulted from a failure to distinguish between the accusation or crime and the mode, manner or means by which the crime is committed, and the distinction is clearly recognized by the courts.
A statute of Wisconsin provided as follows: “In indictments or informations for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment or information for murder to charge that the accused did willfully, feloniously and of his malice aforethought kill and murder the deceased, and in any indictment or information for manslaughter it shall be sufficient to charge that the accused did feloniously kill and slay the deceased.” In the case of Rowan v. State, 30 Wis. 129, the court had under consideration the question whether an indictment in the form of the statute violated the provision of the bill of rights, and said that an information drawn under that statute plainly, substantially and formally des'cribed the crime of murder or manslaughter, and that when one is charged with murder he is fully informed of the nature and cause of the accusation against him without setting forth the manner in which or the means by which the crime was committed. The statute of Ohio was as follows: “In an indictment for manslaughter it shall not be necessary to set forth the manner in which or the means by which the death was caused, but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.” In the case of Wolf v. State, 19 Ohio St. 248, it was held that the statute was not in conflict with the bill of rights, because the manner in which the crime was committed is apart from the nature and cause of the accusation. In Cathcart v. Commonwealth, 37 Pa. St. 108, it was contended that an indictment drawn under a similar statute infringed upon the bill of rights. The court said that an indictment must exhibit the nature and cause of the accusation,—that is, it must set out the crime laid to the charge of the accused,—but the mode in which the crime was committed is entirely apart from the nature and cause of the accusation. The General Assembly may provide that where one is accused of murder it shall not be necessary to state whether he held the weapon in his right hand or left hand, or what the weapon was, or whether the fatal blow was administered upon the head or some other part of the body; but that would be quite different from a provision that the indictment need not state who was killed or otherwise identify the crime. It does not follow that because the General Assembly may prescribe a form which charges the accused with stealing, an indictment would be good which omitted to state what property was stolen, or that an indictment for arson would be sufficient under the bill of rights which merely charged the accused with burning a dwelling house or other building, or charged the crime of burglary by breaking and entering a dwelling house or other building without identifying the building in some way.
The question now before the court has never been decided, and could not have been for the reason that it was never presented to the court in any form, since the indictments in the various cases relied upon to sustain the indictment in this case were for obtaining money, and that description of property is sufficient in any case. (People v. Clark, 256 Ill. 14.) In the case of Morton v. People, 47 Ill. 468, where the question was whether the words “confidence game” sufficiently defined the mode, manner and means of obtaining property, the indictment charged in the first count that the defendants obtained from one Daniel Hughes $30 of his money, and in the second count that they obtained certain legal tender notes and bank notes of the values therein stated. In Maxwell v. People, 158 Ill. 248, the first count charged the defendants with obtaining ' from one Simon Rudesill $15 of his money, and the second count charged them with obtaining three United States legal tender treasury notes for the payment of $15. In Graham v. People, 181 Ill. 477, the first count charged the defendant with attempting to obtain from John A. Bowlin his money, and the second charged him with attempting- to obtain $1500 good and lawful money of the United States. In DuBois v. People, 200 Ill. 157, the charge was for obtaining money. In Hughes v. People, 223 Ill. 417, the charge was for obtaining a check for $200, which was a good description. In Juretich v. People, 223 Ill. 484, there was a charge of obtaining money by means of the confidence game in the first count, and in the second obtaining money by false pretenses. In People v. Weil, 244 Ill. 176, the indictment was for obtaining money by means and by use of the confidence game.
In the case of People v. Clark, supra, the decision that a charge of obtaining money sufficiently designated the offense was based on three decisions in Massachusetts 'and Michigan, one of which was for the embezzlement of money ■ to the amount, in value, of $25,000, the second for stealing a bank bill, and the third for larceny of money. None of them related to the confidence game or established a different rule for that offense than the requirement in a charge of larceny or embezzlement but decided that a description of property as money was specific. Of course, it would not be supposed that a charge of larceny or embezzlement of property other than money, without specifying the species of property, would be a compliance with the constitutional provision. Those decisions and the decision of this court were based on the doctrine that money was a species of property, and that the word “money” designated such property as a species from the generic term used in this case embracing every kind of property. The description, of course, may be quite general, as in a case where the charge is stealing a watch, which is sufficient because definite, although the owner may have a number of watches, the description in such case giving the accused sufficient information of the crime laid to his charge. If uncertainty arises outside of the indictment it is to be removed by a bill of particulars, which is the proper office of such a bill.
As the question here involved was never before the court and could not by any possibility have been, no decision of the court is warrant for saying that the indictment in this case is good or ever would have been regarded as good. The objection in the cases cited was that there was no generally accepted definition of the words “confidence game,” but it was held to be sufficient to describe the mode or means of obtaining money by a term popularized to the extent that it was well understood* and in Maxwell v. People, supra, the definition from Webster’s International Dictionary was given. That definition was repeated in DuBois v. People, supra, and the definition of the Century Dictionary was added, and the opinions show that that was the only question before the court. It seems clear that the purpose of prescribing the form was to enable the charge to be made with reference to the means by which confidence was gained. That being the purpose, it cannot be said that it was the intention of the General Assembly, by insert-. ing parenthetically the word “property” to indicate that the charge was to be for obtaining property rather than money, to disregard the constitution • as to one particular offense and overturn every known rule of criminal pleading. It ought not to be assumed that the General Assembly intended to disregard the constitution, and it is not necessary to say that there was such an intention, since there is no provision that the offense need not be identified by any description of property obtained. If that was the intention it would not be effective, since the constitution is supreme.
The provision of section 6 relating to charging the defendant with a statutory offense in the terms and language of the statute or so plainly that the nature of the offense may easily be understood by the jury is subject, as has often been held, to' the necessary qualification that it is not sufficient to charge the accused with some one of the same general class of offenses, but the indictment must specify the particular offense so that he may be apprised of the nature and cause of the accusation. Whether a charge in the language of the statute satisfies the constitution depends upon the manner in which the offense is defined in the statute, and if the statute is not sufficiently specific to give notice of the particular crime included in the class with which the accused is charged, a more particular statement is necessary. It is therefore never sufficient merely to copy a statute which uses nothing but the generic term of a class of offenses. (Anthony v. State, 29 Ala. 27; State v. Jackson, 39 Conn. 229; State v. Higgins, 53 Vt. 191; Commonwealth v. Filburn, 119 Mass. 297; United States v. Cruikshank, 92 U. S. 542; United States v. Hess, 124 id. 483; Johnson v. People, 113 Ill. 99.) In McNair v. People, 89 Ill. 441, the court said that the offense charged, whether in the language of the statute or so as to be easily understood by the jury, should so describe the offense that the judgment on the trial could be pleaded in bar of another prosecution, and that counts for printing an obscene pamphlet with intention to give the same away, which might apply equally well to any number of pamphlets and give no notice of any particular charge, could not be held good on any construction of the section of the statute authorizing a charge in the terms and language of the statute. In West v. People, 137 Ill. 189, the court said that the purpose of the provision in the bill of rights that one accused of a criminal offense shall have the right to demand the nature and cause of the accusation against him, is to secure to the accused such specific designation of the offense laid to his charge as to enable him to prepare fully for his defense and plead the judgment in bar of a subsequent prosecution for the same offense, citing a. great number of decisions. In Prichard v. People, 149 Ill. 50, it was said that the rule requiring all allegations of fact in pleadings to be direct and positive is not changed by the section of the Criminal Code providing for charging an offense in the terms and language of the statute. In Cochran v. People, 175 Ill. 28, it was held that section 6 does not make an indictment sufficient which charges the offense in the language of the statute if the statute so fails to describe the offense that the use of the statutory language will apprise the defendant of the real offense with which he is charged. In Gunning v. People, 189 Ill. 165, it was said that all necessary facts should be pleaded in an indictment with reasonable certainty, and that séction 6 of division 11 of the Criminal Code has not dispensed with that rule. These cases were all decided in view of the constitutional guaranty that an indictment shall notify one accused of crime of the nature and-cause of the accusation, and any interpretation of the statutory provision which would infringe upon that right would render the statute unconstitutional and void. Not only must every criminal accusation inform the accused what crime he is alleged to have committed, but it must also state sufficient matter to differentiate that crime from other crimes of the same class, that the accused may know, without doubt or uncertainty, the nature and cause of the accusation against him and be able to plead the judgment against a further prosecution for the same offense. Bartell v. United States, 227 U. S. 427.
The statement of the courts that a charge must be so specific that the accused may plead a judgment upon it in bar of a subsequent prosecution was based on the practice by which the record in the former case was pleaded as a plea preliminary to the trial. By that practice the plea of aittrefois acquit or autrefois convict being interposed, the question whether the two indictments were for the same offense could only be determined by an inspection and comparison of the indictments without the aid of extrinsic circumstances. (Durham v. People, 4 Scam. 172.) The issue on that plea was tried before the plea of not guilty, and while no one was permitted to contradict the record of the former acquittal or conviction, the record, of course, neither established the identity of the party nor the identity of the offense, which had to be proved by parol. . When that practice prevailed the indictments were necessarily required to describe the offense so that a comparison of the two would determine whether the evidence under the first indictment would sustain a conviction under the second and settle the sufficiency of the plea as a matter of law, although the identity of the party and of the offense was to be proved by parol. The practice, however, was abolished in this State by the Criminal Code, which provides for a plea of not guilty and dispenses with all other pleas and permits the defense of a former acquittal or conviction to be made under the plea of not guilty. (Hankins v. People, 106 Ill. 628.) On the trial the person accused and the particular offense ma.y be shown by parol evidence. (Swalley v. People, 116 Ill. 247.) But the functions of the court and jury were in no manner changed, and the method of bringing the question before the court or determining it preliminary to the trial does not affect substantial rights under the constitution. The changed practice, by which both issues may be tried at the same time, has no influence on the rule that the indictment must notify the defendant of the nature ancj cause of the accusation against him.
In Morton v. People, supra, in considering the question whether the words "confidence game” described the mode or means of committing the offense, the court said that the accusation was sufficiently identified by the name of the victim; and that was correct on the question then being considered, where the charge was of obtaining money from a particular person, but it would be absurd to say that an indictment for larceny sufficiently designates the offense by naming the person from whom property was stolen. If that were true, the grand jury, which alone can make a charge of felony against a defendant, might hear evidence of a larceny from a named person of one species of property and the defendant be put on trial and convicted of stealing other property from the same person of which property the grand jury had never heard and a larceny of which they did not intend to charge. The Supreme Court of Alabama, in considering that question in Henry v. State, 33 Ala. 389, said that a defendant cannot be said to be informed of the nature and cause of the accusation against him unless the indictment sets forth the facts constituting the offense with such certainty and so fully identifies the offense that the accused and the court may know that the offense for which he is put on trial is the same offense for which he was indicted by the grand jury. The State’s attorney does not, and cannot under our constitution, charge any person with a felony but the charge must be made by the grand jury by means of an indictment, and a bill of particulars cannot supply the place of an indictment or render one sufficient that does not meet the constitutional requirement. If such an indictment as this is sufficient, a defendant may be indicted by the grand jury for one offense and tried by the State’s attorney for another. To say that a defendant, when indicted, knows what property he is charged with obtaining, whether by larceny, false pretenses or the confidence game, is clearly unsound unless the indictment informs him. Of course, if a defendant is guilty he knows what property he obtained, but the constitutional guaranty is also for the protection of innocent people, that one may be advised by the indictment itself what charge is made against him. The nature and cause of the accusation must be in writing and contained in the indictment, of which the accused has a right to demand a copy; and even if the accused is guilty and knows what property he obtained, or is not guilty but has found out what evidence will be offered against him, the fact of such knowledge is no answer to an objection to the indictment.
In the case of People v. O’Farrell, 247 Ill. 44, which was an indictment for embezzlement, the court had declined to require a bill of particulars, and it was held that there was no error because the indictment was specific, and the court cited as authority for the sufficiency of the indictment the three following cases: Lycan v. People, 107 Ill. 423, in which each count charged the defendant with embezzling money to the amount of $600; Ker v. People, 110 Ill. 627, in which embezzlement of money, funds and securities was charged and there was no question concerning the description of the same; and McElroy v. People, 202 Ill. 473, in which there was a charge of embezzlement to the amount of $106.50 and nothing was said about the sufficiency of the description. No case has been found that furnishes any support to a claim that an indictment charging the obtaining of property without any specification of the kind or species would be a sufficient compliance with the bill of rights.
' In Missouri there is a statute substantially like ours respecting the confidence game, and indictments similar to this one have been held bad in State v. Crooker, 95 Mo. 395, and State v. Clay, 100 id. 571. The legislature of Maine prescribed a form of complaint for a misdemeanor which was declared to be sufficient for all cases. A complaint in the prescribed form was held to violate constitutional rights, and the court said that while the legislature might dispense with matters of form, matters of substance which identify the offense cannot be dispensed with; that for centuries since the declaration of Magna Charta the law has required that no person shall be held to answer until the accusation against him is formally, fully and precisely set forth so that he may be prepared to meet the exact charge against him. (State v. Learned, 47 Me. 426.) In a later case an indictment for a felony followed the form established by legislative authority, but it was held that the indictment infringed upon constitutional rights because the form did not meet the requirements of the constitution in identifying the offense. (State v. Mace, 76 Me. 64.) The legislature of Texas attempted to dispense with material allegations in an indictment, and the act was held void. (Hewitt v. State, 25 Tex. 722.) This indictment cannot be sustained on the same ground as the indictment in the case of Cannady v. People, 17 Ill. 158, charging the defendant with selling liquor in a less quantity than one gallon without a legal license to keep a grocery.
Where an act in and of itself constitutes a crime against public law it is sufficient to charge the commission of the act, as- in the case of keeping a gaming house or other disorderly house, managing a lottery or permitting the use of premises for that purpose, keeping a dram-shop without a legal license, or committing various other offenses where the act itself constitutes the crime. If the offense consists in selling to a particular class of persons, the name of the person must be given in order that the offense may be identified. It is not necessary to hold that, the General Assembly intended by the form prescribed to disregard and violate constitutional rights by providing that an indictment would be sufficient which gives no description of the property obtained and does not distinguish the offense of the defendant from all other offenses of the same general class.
In our opinion the court erred in overruling the- motions to quash the indictment and in arrest of judgment, and the judgment ought to be reversed.