concurring in part and dissenting in part:
I concur in the judgment as to counts I, II and IV but dissent from the results reached as to count III. In my opinion the specific section of the statute under which the defendant was charged in this count is invalid due to vagueness.
The indictment charged defendant with a fraudulent practice in that he wilfully sold a franchise by engaging in an act, practice or course of business which operated as a fraud and deceit, to-wit: failing to place the franchise fee paid by the complainant in an escrow account as required by the Illinois Attorney General’s office.
The Franchise Disclosure Act (Act) provides for both civil and criminal sanctions for violation of its provisions. Section 6(lXc), under which the defendant was indicted in count III, states:
“Fraudulent practices.
(1) It is unlawful for any person, in connection with the offer or sale of any franchise, to directly or indirectly:
(c) Engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” (Ill. Rev. Stat. 1977, ch. 121½, par. 706(c).)
Anyone found guilty of violating this section commits a Class 4 felony and is subject to imprisonment for a term of one to three years.
The use of the words “fraud or deceit” under section 6(lXc) would, ordinarily, create no problem since they have a well-settled meaning in the common law. But the Act goes further. Section 3(11) states that the words “ ‘Fraud’ and ‘deceit’ are not limited to common law fraud or deceit.” (Ill. Rev. Stat. 1977, ch. 121½, par. 703(11).) Since the words are not limited to their common law meaning, then what are the elements of this new, open-ended crime of “fraud and deceit”? I suggest there are none. Without knowing the elements of a crime, how will a person be able to conform his conduct so as to be within the law?
Over 50 years ago, the United States Supreme Court expressed, better than I, why a penal statute must be explicit, when it stated:
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.
For the reasons stated, I would affirm that part of the appellate court judgment reversing the conviction based on count III of the indictment.