Page:The Green Bag (1889–1914), Volume 24.pdf/354

 The Editor's Bag A NICE DISTINCTION OUTSIDE the legal profession the only man who will not smile when he reads the Illinois Supreme Court decision, in the case against George Clark, charged with operating a con fidence game, is John Dembinski, the victim of the game. The decision in question reverses a verdict which provided a term in the penitentiary for Clark, and furnished, substantially, the only satisfaction Dem binski got out of the matter. As it was among a large number of opinions handed down when the court adjourned, it escaped the attention of the press, or, if seen, presented so small an element of news value that the mere title of the cause was given publication without comment. The original indictment charged that Clark "did unlawfully and feloniously obtain from John Dembinski his money by means and by use of the confidence game." He was tried, and after a petit jury had declared him guilty, a sen tence of ten years' imprisonment in the penitentiary was imposed upon him. The case was appealed to the Supreme Court, Clark's counsel setting up the usual charges of irregularity in the pro cess by which he was brought to jus tice, insisting that the indictment was faulty, that the trial was improperly held and that the finding was not jus tified. Particular emphasis was placed upon the form of the indictment, and

it is upon this phase of the proceedings that the decision of the higher court rests. The opinion declares that the pre sentment was indefinite inasmuch as it failed to point out whose money Clark secured from Dembinski! As indicated, the indictment says that Clark obtained "from Dembinski his money," and the court is possessed of the idea that this statement may have misled someone, being subject to misconstruction. The pronoun "his," it maintains, might as correctly refer to the defendant as to Dembinski. "It would be as easy," it continues, "to say that the defendant obtained his own money from Dem binski, as that he obtained the money of Dembinski." That the opinion rendered in the case might be made still clearer, the court adds: "A conclusion that the pronoun referred to Dembinski rather than the defendant could only be sustained on the ground that the grand jury intended to charge the defendant with a crime." Since, in the opinion of the court, so violent an assumption would be con trary to all rules of criminal pleading, it is wholly out of the question to figure that the grand jury was endeavoring to accuse Clark of doing something criminal when it indicted him. And since it has no other means of deter mining, from the indictment, whether the grand jury was trying to bring Clark to trial for getting Dembinski's money in an unlawful manner, or was simply