Hoye, 77 Mass. 462;

People v. Enoch, 13 Wend. 159; State v. Jim, 3 Murph. 3; Warner v. Commonwealth, 1 Pa. St. 154; Commonwealth v. Stockbridge, 11 Mass. 279; Chapman v. Commonwealth, 5 Whart. 427; State v. Wilbor, 1 R. I. 199; State v. Soragan, 40 Vt. 450; State v. Cadle, 19 Ark. 613; State v. Gove, 34 N. H. 510.

The fact that one count in an indictment, upon which a conviction has not been predicated, has the proper conclusion, does not in any way cure or help the count upon which the conviction was predicated solely, and which does not conclude as required by law. Especially is this true where the only count which has the conclusion is voluntarily dismissed out of the indictment and out of court by the State. Each count, as to the material charging elements, must be complete and perfect in itself. Williams v. State, 47 Ark. 230; State v. Hazle, 20 id. 156; State v. Cadle, 19 id. 613; State v. Clevenger, 25 Mo. App. 655; State v. Pemberton, 30 M0. 376; Early v. Commonwealth, 86 Va. 921; Commonwealth v. Carney, 4 Gratt. 546; Thompson v. Commonwealth, 20 id. 724; State v. McClung, 35 W. Va. 280; State v. Strickland, 10 S. C. 191.

Proof of the commission of other alleged offenses, or evidence tending to prove the commission of other alleged offenses, is clearly inadmissible. Towne v. People, 89 Ill. App. 276; Baker v. People, 105 Ill. 452; Kribs v. People, 82 id. 425; Parkinson v. People, 135 id. 401; Jackson v. People, 126 id. 139; DuBois v. People, 200 id. 157.

False representations, in order to constitute the basis of a prosecution for the confidence game and to sustain a conviction, must be shown to have been the operative cause. 2 Wharton on Crim. Law, pars. 2120-2123.

Even though the false pretense be made with fraudulent intent and the person defrauded part with his property, the offense is not complete except the property has been parted with upon and under the inducement of the false pretense. 7 Am. & Eng. Ency. of Law, (1st ed.) 708.

To sustain a prosecution for obtaining goods under false pretenses, it must, in legal effect, be charged in the indictment, as well as proved at the trial, that the goods were obtained by means of the alleged false pretenses. People v. McAllister, 49 Mich. 12; State v. Connor, 110 Ind. 469.

False representations, or anything claimed to be representations, in order to be "false pretenses" within the meaning of the law, must be the direct cause of the loss of the thing of value,-must be the moving cause and not the cause of the cause, must be the proximate cause. Pierce v. People, 81 Ill. 98; Commonwealth v. Drew, 19 Pick. 184.

W. H. STEAD, Attorney General, and JOHN J. Healy, State's Attorney, (FLETCHER DOBYNS, of counsel,) for the People:

The scheme to defraud disclosed by the record constitutes the confidence game. Morton v. People, 47 Ill. 468; Maxwell v. People, 158 id. 248; VanEyck v. People, 178 id. 199; Graham v. People, 181 id. 477; DuBois v. People, 200 id. 157; State v. Terry, 109 Mo. 60; State v. Morgan, 112 id. 205; State v. Wilson, 72 Minn. 522; 82 id. 342.

State v. Smith,

It was not error to permit the State to introduce evidence of other offenses than the one charged in the indictment. Thomas v. People, 59 Ill. 160; DuBois v. People, 200 id. 157; Dunn v. People, 40 id. 465.

Mr. JUSTICE FARMER delivered the opinion of the court:

Notwithstanding the labor imposed by setting out in the abstract a great portion of the testimony in full by questions and answers instead of "a complete abstract or abridgment" of the testimony, we have read it carefully from the alleged abstract, and having reached the conclusion that the evidence is insufficient to sustain a conviction for the confidence game, it is unnecessary for us to discuss the numerous other errors assigned and argued in a brief of 227 pages on

behalf of plaintiffs in error and a brief of 106 pages on behalf of defendant in error.

It is not contended that the business of the Merchants' Credit Guide Company with its customers and subscribers, among whom were included a number of the largest and most reputable mercantile houses in Chicago and other cities, was an unlawful or illegitimate business. The evidence shows that Kitzeman, the prosecuting witness, advertised in the Chicago Tribune, some time in April, 1904, for a position, stating in the advertisement he had $500 to invest. Plaintiff in error Dorr saw the advertisement and wrote him a letter, which resulted in Kitzeman calling at the office of plaintiffs in error and the Merchants' Credit Guide Company about the latter part of the month of April. At this time an extended interview took place between Dorr and Kitzeman with reference to the character of the business of the Merchants' Credit Guide Company, the employment of Kitzeman as district manager and the territory he should operate in. No contract was entered into by the parties at this time nor was any made until there had been at least three, and probably four, more interviews between the parties. According to Kitzeman's testimony Dorr fully explained the character and methods of the Merchants' Credit Guide Company's business, gave him the names of a number of its subscribers in the city of Chicago and showed him some letters of endorsement from some of these subscribers. Among the subscribers referred to in the city of Chicago were such well known houses as Lyon & Healy, Franklin McVeagh, Humiston, Keeling & Co. and the Skinner Manufacturing Company. Kitzeman says he called on at least some of these firms before entering into the contract and inquired about the Merchants' Credit Guide Company and its business. He was not permitted to testify to what he was told by these houses, but it is reasonable to suppose that he did not receive an unfavorable report or he would not have afterwards accepted employment with said corpora

tion. On May 5, which, as we understand the evidence, was the fourth interview between Kitzeman and Dorr, the latter exhibited to Kitzeman the form of the contract to be executed if Kitzeman accepted the position of district manager. The territory to be allotted Kitzeman was called the territory of north-eastern Ohio, embraced several counties in that section of the State and included the city of Cleveland. According to the testimony of Kitzeman he read the contract over carefully. Some of its provisions did not suit him, and at his suggestion and request certain modifications of it were made. After this was done the contract was signed by the parties and a $500 certified check turned over by Kitzeman to Dorr, for which he received twenty shares of stock in the Merchants' Credit Guide Company. Soon after, Kitzeman proceeded to Cleveland to enter upon the work of his position. The Merchants' Credit Guide Company paid his railroad fare to said city and also sent a representative to instruct Kitzeman in the business and assist him in getting a start. Kitzeman remained in Cleveland until September, 1904, and being unable to secure enough subscribers to the Merchants' Credit Guide Company to make the business a success, he quit the field and wrote to said company notifying it that he had quit its employment because he was unable to secure enough business to justify him in continuing in the work and requesting a return of the $500 paid for stock, which stock he offered to surrender back. Kitzeman was unable to do much business in the territory to which he was assigned, although he testified he labored hard and earnestly. During his employment, in addition to his car fare from Chicago to Cleveland, he received from the Merchants' Credit Guide Company $50 and remitted to said company $40. He retained and used $140 or $145. Plaintiffs in error, on behalf of their corporation, refused to return to him the $500, claiming that it was unlawful for the corporation to buy the stock back, and called attention to the fact that under the terms of the

contract they were under no obligation to return Kitzeman the money.

The only provision of the contract relating to the stock purchase was, that in case of the resignation of Kitzeman he would co-operate with the Merchants' Credit Guide Company in securing a successor who would take his stock at the same price he paid for it. This is not an agreement that the company would take the stock and pay back to Kitzeman the money he paid for it, nor is it claimed by the defendant in error that the written contract imposed any such obligation upon plaintiffs in error. Kitzeman does not claim he did not fully understand the contract when he signed it. He does testify, however, that Dorr verbally agreed to take the stock and give his money back if he should quit his employment, and this is the only respect in which Kitzeman claims to have been deceived or defrauded, except that he testified plaintiffs in error showed him a carbon copy of a report which they represented was from their district manager from Toledo, Ohio, which he said showed a profitable business. He testified he saw no name on the report. Plaintiffs in error both testified they had no report from the Toledo manager at that time, but that the report shown Kitzeman was from their St. Louis manager, which report they produced at the trial. Dorr denies he ever promised Kitzeman to take up his stock and pay him his money back, and it is not claimed that any such promise. was ever made by Sawyer, who testifies no such proposition was ever made in his presence or hearing. If proof beyond a reasonable doubt that Dorr did make such verbal promise would be sufficient to establish his guilt of the confidence game, it would seem to be a grave question whether the fact was proven by that degree of evidence. If Kitzeman was corroborated at all, it was by Lawrie and Burnett. These two parties had been employed by plaintiffs in error under contracts similar to the one made with Kitzeman. The court permitted them to testify that when they made their