text:
    William Balswic, Appellee, v. Julia Balswic, Appellant.
    Gen. Nos. 5,577, 5,678.
    1. Appeals and errors—when errors waived. Errors assigned but not argued may be deemed to have been waived.
    2. Instructions—when not accurate in not confining jury to facts and circumstances in evidence. An instruction is not harmful to defendant which states “If you believe from all the evidence, facts and circumstances in this case that the defendant is guilty of adultery it matters not that such belief on your part is based upon direct or circumstantial evidence or both, though not technically accurate in not confining the jury to the consideration of the facts and circumstances in evidence.
    3. Instructions—error cannot be complained of where party made same mistalce. Even if an instruction for complainant that “If you believe from all the evidence, facts, and circumstances in this case,” etc. is erroneous, defendant cannot complain on the ground that it allowed the jury to go outside the evidence where some of her given instructions contain the words- “under all the circumstances” and “if the facts and circumstances.”
    4. Evidence—instruction as to preponderance of evidence where adultery is charged. An instruction in a divorce proceeding that a greater amount than a preponderance of the evidence is required to find one guilty of adultery is erroneous.
    5. Evidence—when time and place of conversation between parties need not be shoion. In divorce proceedings it is not error to allow a witness to show a conversation between the parties though the time and place of such conversation has not been shown.
    6. Evidence—when question properly excluded as assuming existence of a fact. In divorce proceedings a question to complainant as to when he first began to quarrel with his wife about going with other men is properly excluded as assuming that he quarreled with her.
    7. Evidence—exclusion of question subsequently answered in effect. A party cannot complain that a question was improperly excluded where an answer was subsequently permitted to a question to the same effect.
    8. Evidence—when party cannot complain that objection to question was overruled. Defendant cannot complain that his objection to a question was overruled where such question was not answered but was changed in form and answered without objection.
    9. .Divorce—verdict. A verdict in divorce proceedings stands exactly like a verdict in an action at law.

      10. Amendments—when amendment after verdict by changing name mentioned proper. In divorce proceedings on the ground of adultery where the bill charges adultery with one Bachtus about seven years before and the evidence tends to show adultery with one Pochtus shortly before the trial, it is not reversible error, after verdict that defendant was guilty of adultery with Pochtus, and pending a motion for new trial, to allow an amendment changing the name Bachtus to Pochtus where no objection was made on the ground of variance, the names being idem sonans.

    11. Amendments—when assumed no surprise worlced. It must be assumed that an amendment to the bill in cjivoree proceedings worked no surprise where it was made without objection or intimation of surprise. -
    12. Appeals and errors—when question as to sufficiency of bill waived. By answering the bill and going through the trial without any objection as to the sufficiency of the bill, defendant in divorce proceedings waives the right to raise the question of its sufficiency in the Appellate Court.
    13. Appeals and errors—when defendant cannot urge insufficiency of bill. Where defendant answers the bill and goes through the trial without objecting to its sufficiency, he waives the right to urge its insufficiency in a motion for new trial and then urge the point on appeal to the Appellate Court on the ground that the court erred in not granting a new trial.
    14. Divorce—suit money on appeal by wife. There is no statute authorizing an allowance of suit money and solicitor’s fees to the wife who appeals from a divorce decree against her for misconduct.
    Appeal from the Circuit Court of Will county; the Hon.. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 2, 1913.
    Urban P. Gallagher and Frank J. Wise, for appellant.
    Dagger & Blatt, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee filed his hill for divorce, charging cruelty, habitual drunkenness and adultery. Appellant answered, denying all the charges. Replication was filed to such answer, and under the issues so formed, a trial was had by the court and a jury called pursuant to the statute on appellant’s motion. During the trial the charges of cruelty and habitual drunkenness were withdrawn, and the cause was finally submitted to the jury on the issue of adultery only. The jury returned a verdict finding the appellant guilty of adultery with one Charles Pochtus. A motion for a new trial was made, and pending the motion for a new trial, leave was asked and granted to appellee to amend his bill, which was accordingly done,' in effect changing the name, “Charles Bachtus,” to “Charles Pochtus.” The motion for a new trial was overruled and a decree of divorce was entered on the verdict of the jury. From this decree an appeal was taken to this court. Appellant assigns numerous errors, but confines herself, and specifically points out to this court in her argument the following: (1) The verdict and decree are not supported by, and are contrary to the evidence; (2) errors in rulings on evidence; (3) errors in instructions. All other errors assigned are by this court deemed to have been waived by appellant. Harrow v. Grogan, 219 Ill. 288; Banfill v. Twyman, 172 Ill. 123; Lingle v. West Chicago Park Com’rs, 222 Ill. 384. Complaint is made of 4 instructions given at the request of appellee, and qf 1 instruction refused, asked by appellant. The instruction given for appellee first complained of is as follows: “If you believe from all the evidence, facts, and circumstances in this case that the defendant is guilty of adultery, it matters not that such belief on your part is based upon direct or circumstantial evidence, or both.” The first criticism made by appellant is that it did not confine the jury to the consideration of the facts and circumstances in evidence, but allowed them to go outside the evidence to find facts and circumstances. While not technically accurate we cannot see that this instruction was harmful to appellant. While the precise point argued in this case was not specifically argued in the following cited cases, yet in Chicago & E. I. R. Co. v. Rains, 106 Ill. App. 539, and in the Supreme Court in Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9, an instruction similar in phraseology is held to be good. Even if it be conceded that this instruction is erroneous this court would not be justified in reversing the decree for such an error because appellant fell into a similar or worse error in some of her given instructions, in which the words, “under all the circumstances,” or “if the facts and circumstances,” were used, and is therefore in no situation to complain. A party cannot complain of an error in instructions when the same error is found in the instructions of the complaining party. McInturff v. Insurance Co. of N. A., 248 Ill. 92. The bill charges adultery with other men than those specifically named. Suspicious circumstances to say the least, were testified to in connection with Pochtus, Greenas and Bokus. It was proper for the court to give instructions on the question of adultery with any one, or all, of the parties named in the evidence and such instructions do not direct the attention of the jury to anything not alleged in the bill. Either the allegation of adultery with other men than those specifically named, or the allegation of adultery with those specifically named, were proper subjects of inquiry in the case, under the evidence, and it was proper for appellant to ask, and for the court to give, instructions based on the evidence as to either, or all, of such allegations. - The first refused instruction is justly open to the criticism that it had the tendency to mislead the jury, because it told them, if it had been given, that a greater amount than a preponderance of the evidence was required to find one guilty of adultery. The Supreme Court has repeatedly held that adultery may be established by a preponderance of the evidence: Stiles v. Stiles, 167 Ill. 576; Lenning v. Lenning, 176 Ill. 180; Heyman v. Heyman, 210 Ill. 524. Nothing reversible is perceived in any of the points made by appellant on the giving or refusing of instructions. It is claimed to be error for the court to have ruled that a conversation between the parties to the suit might be shown by the witness Behrens over the objection that the time and place of the conversation asked for had not been shown. There is no rule of evidence requiring the time and place to be fixed to show conversations with, or admissions of, a party to the suit. On cross-examination all such information can be elicited if desired. There is no error in that ruling of the court. The admissions of a party against his interest are substantive proof and may be shown in the first instance without a previous examination of the party making the admission and without first locating the time when, or place where, the admission was made. Second Borrowers & Investors Bldg. Ass’n 1. Cochrane, 103 Ill. App. 29, and authorities therein cited. It is next said that the court erred in sustaining an objection to the question asked appellee on cross-examination, which question was as follows: “When did you first begin to quarrel with your wife about going with other men?” Objection to this question was made on the ground it assumed that appellee had quarreled with his wife. The objection was sustained. The ruling was technically correct. Even if it be conceded such ruling was error, the next question put by appellant’s counsel was the same in effect, to which appellee interposed an objection, which was overruled, and the witness allowed to answer. Appellant’s counsel saw fit to pursue the inquiry no further. Next, appellant complains of a ruling of the court on an objection to a question which was never answered by the witness. The question put to the witness was as follows: “Now did you ever see these two parties that I have just named go into a bedroom?” Objected to and overruled. The question was not answered. Then counsel for appellee stated he would change the form of the question, which he did, and the question as changed was answered without objection. Appellant requested a jury trial, and her case was heard and decided by the jury as to all questions of fact. No reversible error is shown in rulings on evidence, or in the instructions given to the jury or in refusing instructions asked. The verdict of the jury stands exactly like a verdict in a suit at law, and is controlled by the same rules that are applicable to a verdict in a suit at law. This court must be satisfied the verdict is clearly against the weight of the evidence before it would be justified in reversing the case on a question of fact. The rule of law is that any competent evidence, direct or circumstantial, that satisfies the minds of the jury as reasonable and just men, that parties charged with adultery are guilty of it is sufficient to sustain their verdict. There is a large preponderance of evidence that appellant was of a lascivious disposition, evidenced by her conduct with men other than her husband; that she was guilty of taking improper liberties with other men and soliciting other men to have sexual intercourse with her. Her acts as shown by the evidence largely preponderate on the side of illegitimate sexual intercourse. Not one, but several, testify to different lascivious acts. She alone denies each charge made, but the jury were justified in believing that several witnesses would hardly be willing to swear falsely to the several acts of improper conduct of appellant detailed by them and the jury believed the witnesses for appellee. On one of the occasions testified to, appellant went into a bed-room with a man other than her husband and remained a few minutes and the bed, which was made up before, was all mussed up, as the witness says, soon after she and the man were in the room and came out. Another witness testifies to having seen appellant and Charles Pochtus come out of a bedroom. The bill charges adultery -with one Charles Bachtus. The evidence related to Charles Pochtus. The evidence of a witness places Pochtus and appellant late a night in a dark place between two factories, where they went together and remained ten or fifteen minutes, and then came out. The bill charges adultery with Charles Bachtus about seven years before. The testimony as to Pochtus was at a later date. No objection was made on the ground of variance at the trial. If there had been, the bill could have been amended. No continuance was sought on the ground of surprise. The evidence all related to Pochtus. The names Bachtus and Pochtus can be so pronounced as to be idem soncms. After verdict the bill, without objection, was amended and changed to “Pochtus.” There was no reversible error in the record in that regard—first, because the names are idem sonans, and second, because the point was not saved at the trial by any objection on the ground of variance. There was no motion for a continuance on the ground of surprise. Again, there was a charge in the bill of adultery with other men under which the evidence as to Charles Pochtus could have been admitted. The witness Norbitt testified about Charles Pochtus and that he was his boarder. It is clear from the record that appellant knew of Norbitt’s testimony. Appellant heard Norbitt testify about Pochtus and herself being at a social gathering held at the house of one Alex about a year before the trial and that she and this boarder went to Norbitt’s house and took Norbitt’s child there and put it to bed and then went between the factories. She did not testify she did not know such a boarder, but denied she went'to Norbitt’s house with Pochtus, or any other man. As. there was such a man and he boarded at Norbitt’s house and as she did not testify she did not know Norbitt’s boarder, it is sufficiently clear, when all of the evidence is considered, that she must have known to whom the evidence related. If, because he was called by another name, she was taken by surprise and wished to have time to find bim she should have asked a postponement of the trial for that purpose. If a new trial had been granted to enable her to produce Pochtus his evidence would be cumulative only and would not necessarily be believed by the jury, for under the evidence the jury were justified in believing appellant was not entitled to much credence. It is sufficient to say, that in the opinion of this court, a prima facie case was made by appellee which was not changed by the evidence introduced by appellant, so that the court did not err in refusing to sustain motions for a directed verdict, either at the close of complainant’s testimony, or at the close of all the testimony. If appellant was not satisfied that the bill was sufficient the proper course for her to have taken was to demur to the bill and not ariswer and then wait until after trial and verdict. As we read the record, no objections were urged during the trial on the ground of variance. The amendment to the bill by which the name Bachtus was changed to Pochtus, we are bound to assume, worked no surprise on appellant, because it was made without objection or exception, or even an intimation that she was surprised thereby and hence it was regular and proper. Franke v. Hanly, 215 Ill. 216. It is too late after a trial on the merits and a verdict to raise questions on the sufficiency of the bill. By answering the bill and going through trial without any objection which would raise questions as to the sufficiency of the bill, thus treating the bill as if sufficient, appellant waived the right to raise the question of insufficiency in this court, or even to urge the. point on a motion for a new trial in the trial court, and then for that reason urge the point on appeal in this court on the ground that the court erred in not granting a new trial. Bevans v. Murray, 251 Ill. 603; Pinkerton v. Sydnor, 87 Ill. App. 76; Chicago & A. R. Co. v. Murphy, 99 Ill. App. 126; Bennett v. The Chicago City Ry. Co., 243 Ill. 420. No reversible error is perceived in the record as to the points that the allegations of the bill are not sufficient to support the decree, or that the court erred in denying appellant’s motion for a directed verdict, or in denying appellant’s motion for a new trial. Seeing no reversible error in the record, the decree of divorce is affirmed. Consolidated and taken with the appeal on the divorce decree is the appeal from a subsequent order of the trial court denying a motion for suit money, etc., and that appeal will now be con sidered. Appellant’s motion is for suit money and solicitor’s fees in the matter of the appeal prayed in the divorce suit, case General No. 5577 and is necessarily based on Section 15, Chapter 40, Hurd’s Be-vised Statutes. That section of the statute provides that where a husband takes an appeal he can be compelled to pay for the wife’s defense on appeal, but does not provide for any payment for the wife to prosecute an appeal taken by her. This court in Seeger v. Seeger, 154 Ill. App. 38, held in a similar case that it did not recognize it as the duty of the court to award suit money to prosecute an appeal from a decree against the wife. In the absence of a statutory provision controlling the question, when the husband obtains a divorce on account of the misconduct of the wife, the latter will not be entitled to alimony. Spitler v. Spitler, 108 Ill. 120. We hold that there is no statute authorizing an allowance of suit money and solicitor’s fees to prosecute an appeal by the wife from a decree of divorce against her for adultery.

The divorce decree appealed from and the subsequent order denying allowance of suit money and solicitor’s fees, are each affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Anna Pearson, Plaintiff in Error, v. Peter Pearson, Defendant in Error.
    Gen. No. 5,617.
    1. Divorce—custody of children. In granting- a divorce, the welfare of the children is the controlling consideration in determining who shall have custody of them where hoth husband and wife are equally fit.
    2. Divorce—discretionary power as to custody of children. The common law right of the father to the custody of the child must yield to the discretionary power vested by statute in the court, where the best interests of the child demand it.
    3. Divorce—custody of children. Where a wife, granted a divorce, has been granted liberal alimony but denied custody of the children, the Appellate Court on modifying the decree and awarding custody of a female child to the wife may provide that she shall not apply for a further allowance for her support but in case she is not willing to defray the expense of support and education may return the child to the father.
    Error to the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 15, 1912.
    Rehearing denied April 2, 1913.
    E. Y. Orvis, for plaintiff in error.
    Et.atvt L. Clarke and Cooke, Pope & Pope, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

Anna Pearson filed a hill in the Circuit Court of Lake county, charging her husband, Peter Pearson, with extreme and repeated cruelty, asking for a divorce, for the custody of their minor children and suit money, alimony and solicitor’s fees. He answered the bill, denying the charge of cruelty. There was a jury trial and a verdict for the wife, and the evidence at that trial is not preserved in this record. A decree of divorce was granted, reserving the question of alimony and the custody of the children for further consideration. Later a hearing was had on the questions reserved, and on March 29, 1911, the court ordered the husband to pay the wife $8,600 alimony in real estate and money and awarded the custody of the children to the father, and this writ of error was sued out by the complainant to review that decree. The decree is not questioned here excepting as tó the custody of the children.

The parties were married in 1888 and six children were born of such marriage, the oldest of them being of age and married. There were five minor children: William, aged 17 years; Albert, aged 16 years; Lillian, aged 13 years; Walter, aged 7 years, and Dorothy, aged 5 years. The custody of William is not in controversy here, the mother being- willing that he should remain with the father.

There is some conflict in the evidence in this record as to the fitness of either party to have the custody of the 'children. The proof shows that the father lives with a widowed sister who has three children of her own ranging- in age from 3 to 8 years, who testified that she was willing to help him care for his children; that he was a sober man of good morals and inclined to teach the boys habits of industry and abundantly able to provide for their necessities. No witnesses testified as to the father’s unfitness to have the custody of the children excepting the mother. The proof shows that the'mother had always taken care of the children. They seemed attached to her. No witness testified that she was an improper-person to have the care of the children excepting the father and his brother. One witness called for the father testified that she was a proper person to have the control of the children. There is some proof to the effect that both were, at times, irritable, nervous and cross with the children. From the evidence in this record we are of the opinion that both parties were equally fit to have the custody of the children.

The controlling consideration with a court of equity where both the husband and wife are equally fit to have the care of the children is the welfare of the children and not the gratification of either parent. In such cases the custody of the children is often given to the mother where the health or tender years of the children require her attention. 2 Bishop on Marriage and Divorce, 532; Umlauf v. Umlauf, 128 Ill. 378. Under our statute the court may make such" order touching the “care, custody and support of the children, er any of them, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just.” Hurd's R. S. Chap. 40, Sec. 18.

The common law right of the father to the custody of the child will be made to yield to the discretionary power over the subject vested by this statute in the court (Hewitt v. Long, 76 Ill. 399; Umlauf v. Umlauf, supra) where the best interests of the child demand it. Cohn v. Scott, 231 Ill. 556.

The question then arises whether or not it is proper to modify or change the terms of the decree as to the custody of these children or any of them. Albert has expressed a wish to remain with his mother, but it is quite likely that this is because she will be more indulgent with him than the father. Lillian is of such an age that she will undoubtedly go with whichever parent she prefers. As to the older children, we are of the opinion that it was right to award the custody to the father, but as to the youngest girl Dorothy, while there is no proof that her health is delicate, it is apparent that she would receive care more suitable to her tender years from her mother than she could from an aunt who had three young children of her own. Unquestionably no other person can feel for a girl as her mother does or show her the love and affection which she' will receive from her mother. After a careful study of this record we are led to the conclusion that the true interests of this youngest girl Dorothy require that the common-law right of the father should he made to yield to her welfare.

Therefore the decree questioned by this writ of error is affirmed except as to the girl Dorothy and as to her it is reversed and remanded with directions to the court below to so modify the decree as to give her custody to the mother, but at her sole expense. The decree required the father to make such liberal provision for the support of the mother that she should not be given an opportunity to apply for an increase- of that allowance for the support of this child. If she is not willing to abide the expense herself of supporting and educating the child Dorothy, she may return her to the father.

Affirmed in part, reversed in part, and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Samuel F. Darr and Harvey Austin Six, Plaintiffs in Error.
    Gen. No. 5,625.
    1. Appeals and errors—amendment to the record. An amendment to the record certified by clerk of lower court cannot be attacked by motion in the court of review where no bill of exceptions is taken of the proceedings by which the record is amended.
    2. Conspiracy—when means to he used need he set out. Where conspirators agree together to do an unlawful act, it is not necessary to set out in the indictment the means whereby the conspiracy is to be accomplished; but when the conspiracy is to do a lawful act by unlawful means, the means to be used for its accomplishment must be set out.
    3. Conspiracy—indictment. Indictment for conspiracy to cheat and defraud an insurance company held sufficient.
    4. Criminal law—one good count sufficient. Where there is one good count in an indictment, a conviction on a general verdict will be sustained though some of the counts are faulty.

      5. Criminal law—credibility of witnesses. The credibility of witnesses and the weight to be given their testimony is a question for the jury.
    6. Criminal law—when verdict set aside? A verdict will not be set aside on appeal unless the court is satisfied from a careful consideration of the whole testimony that there is reasonable doubt as to the guilt of the accused.
    7. Conspiracy—evidence. On a prosecution for conspiracy to obtain money by false pretenses from an insurance company, it is not error to admit evidence of conversations about the insurance on the building in which the fire occurred.
    8. Conspiracy—limiting effect of evidence. Where several defendants are on trial for conspiracy to defraud an insurance company, one of the defendants, who claims that he should not be affected by what one of the others said after the fire, should ask for an instruction limiting the effect of the evidence to the one against whom it was competent.
    9. Conspiracy—evidence. On a prosecution for conspiracy to obtain money by false pretenses from an insurance company, it is not error to admit in evidence an unpaid draft for an insurance premium.
    10. Conspiracy-—statements made after unlawful act. On a prosecution for conspiracy to obtain money by false pretenses from an insurance company, statements made by one of the defendants after the fire are admissible in evidence against him.
    11. Conspiracy—similar acts by defendants on trial for conspiracy. On a trial for conspiracy to obtain money by false pretenses from an insurance company, evidence that defendants had been engaged together in other cities in matters wherein there had been fires and loss by insurance companies is admissible on cross-examination of such defendants.
    12. Conspiracy-—-financial relations between conspirators. On a trial for conspiracy to obtain money by false pretenses, the financial relations between the defendants may be brought out on cross-examination of such defendants.
    13. Conspiracy—threats to expose conspirators. On a trial for conspiracy to obtain money by false pretenses, evidence that a man, not a party to the suit nor a witness, called one of the defendants by telephone and threatened to expose him if he did not pay a certain amount of money is properly excluded.
    14. Conspiracy—evidence sufficient to establish insurance. On a prosecution for conspiracy to defraud an insurance company, there is sufficient evidence to show that property was insured where the secretary of the company identifies the policy, which is in evidence, and states the amount paid thereon after the fire.
    15. Conspiracy—circumstantial evidence of conspiracy. An instruction that while the jury must be convinced from the evidence of the guilt of defendants beyond a reasonable doubt in order to warrant a conviction, still the proof need not be the direct evidence of persons who saw the offense committed, but that the acts constituting the crime may be proved by circumstances, is proper.
    16. Criminal law—weight to be given witness who has turned state’s evidence. An instruction that if the jury believes from the evidence that a certain witness testifying for the state was an accomplice in the crime charged, still he is a competent witness and his evidence should be considered in connection with the other evidence in the case as explained by the instructions is not erroneous.
    17. Criminal law—when instruction as to weight to be given testimony is improper. An instruction in regard to a witness who has turned state’s evidence to the effect that if the jury believe beyond a reasonable doubt that his testimony has been corroborated by competent witnesses, or by facts and circumstances appearing in evidence, the jury has a right to give it the same degree of weight as any other witness is improper but not reversible error under the circumstances of this case.
    18. Conspiracy—to obtain money by false pretenses. In a prose^ cution for conspiracy to cheat and defraud an instruction which proceeds upon the theory that it is only necessary that the intention be to cheat and defraud and omits the words “knowingly and wickedly” is not erroneous.
    19. Conspiracy—instructions that act of one conspirator is act of all. An instruction that if the jury believe from the evidence in the case beyond a reasonable doubt that the fact of a conspiracy was shown by the evidence, then any act of anyone of the conspirators in the prosecution of the enterprise is considered the act of all, is not erroneous.
    20. Criminal law—abstract instructions. An instruction that the policy of the law deems it better that many guilty persons shall escape rather than one innocent person should be convicted and punished is properly refused.
    21. Criminal law—failure to give instruction. Defendants in a prosecution for conspiracy to defraud an insurance company cannot complain of failure to give an instruction that would permit the acquittal of one defendant and the conviction of another when they did not ask for such an instruction.
    22. Criminal law—duty of jury to reconcile evidence with presumption of innocence. On a trial for conspiracy, an instruction to the effect that it is the duty of the jury to reconcile, if possible, the evidence with the presumption that the defendants are innocent is properly refused.
    23. Criminal law—instructions. Absolute accuracy in instructions is not required, it being sufficient when the instructions considered as a whole, substantially present the law of the case fairly to the jury.

      24. Criminal law—must he adverse ruling on remarles of counsel to he reviewahle. The language used by the assistant state’s attorney in addressing the jury is not subject to review where there has not been a ruling thereon adverse to the party complaining.
    25. Criminal law—remarles of counsel. Error cannot be predicated on the fact that the assistant state’s attorney in addressing the jury persisted in making improper remarks where the objections of defendants were each time sustained.
    26. Criminal law—presumptions. Where the record recites that the jury retired accompanied by a sworn officer, it is presumed that they returned in charge of the same officer.
    27. Criminal law—new trial. A new trial is not granted on the ground of newly discovered evidence which is merely cumulative and not conclusive.
    Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 2, 1913.
    Frank P. Drennan and Frank A. Ball, for plaintiffs in error.
    Egbert Scholes, for defendant in error; Henry E. Pratt, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

At the September term, 1911, of the Circuit Court of Peoria county, Samuel F. Darr and Harvey Austin Six, plaintiffs in error, together with Louis Wood Hill and John Doe were indicted for a conspiracy to obtain by means of false pretenses moneys from the German Fire Insurance Company of Peoria. The person represented as John Doe seems not to have been arrested. Hill turned state’s evidence. Darr and Six were tried, convicted and sentenced to the penitentiary for a term of three years and sued out this writ of error to review the judgment, and Darr obtained a supersedeas upon presenting a record to a judge of this court in vacation which contained no arraignment and no plea of not guilty and which was' certified to be cómplete.

Thereafter an amendment to the record was made in the court below and filed here showing that both Darr and Six waived arraignment and plead not guilty. A motion was made here, supported by affidavits, attacking the amended record. The amendment was certified to be true by the clerk of the lower court. If it was in any way improperly obtained in the court below, a bill of exceptions should have been taken of the proceedings by which the recorc^ was amended. That was not done and we must take the record certified by the clerk of the court below to be correct.

The indictment contained five counts. The first count charged that the defendants falsely and fraudulently conspired together to obtain knowingly and designedly by means of false pretenses $2,500 of the money of the German Fire Insurance Company of Peoria, a corporation, with intent feloniously to cheat and defraud said company of said money.

The second count charged that in carrying out the conspiracy the defendants falsely and feloniously conspired together to obtain by false pretenses from said insurance company a bank check of the value of $650 with intent to cheat said company of said money, and feloniously conspiring together obtained a policy of insurance on a certain lot of household goods against loss by fire to the amount of $2,000 in the name of Darr; that afterwards, in pursuance of said conspiracy, the defendants did falsely represent and pretend to the said insurance company that a loss by fire to said lot of household goods was $650, whereas, in fact, the goods were not of the value of $650 and were not damaged by fire to that amount, and the amount to be paid by said insurance company under said policy was not $650, as the defendants knew at the time they so falsely pretended.

The third count made similar charges as the first and second and alleged that the defendants, with the fraudulent intent, as set out in the first and second counts, obtained a policy of $2,500 on said household goods in said company; and in pursuance of the conspiracy to cheat and defraud said company by means of false pretenses said household goods were feloniously burned, with the knowledge and procurement of the defendants, with felonious intent to injure and defraud the insurance company; and that they after-wards falsely pretended that the damage to said goods was $650 and that the amount to be paid Darr by said insurance company on said policy of insurance was $650, whereas the loss on said goods did not exceed $300, and that the defendants falsely represented to the insurance company that said damage by fire to said goods was occasioned in some manner unknown to Darr, whereas the burning of said goods was with the knowledge, consent, design, procurement and act of said defendants, and that by means of said false representations and pretenses the defendants falsely and feloniously conspired to defraud the. insurance company.

The fourth and fifth counts are similar, and charge that the defendants conspired together with a fraudulent and malicious intent to obtain $2,500 of said insurance company by false pretenses.

It is urged that the indictment is insufficient for the reason that neither of the counts of the indictment sufficiently and with apt words state and charge the offense of conspiracy to obtain money by false pretenses. The rule in this state is, that where the object of a conspiracy is unlawful,—that is, where the conspirators agree together to do an unlawful act,—it is not necessary in the indictment to set out the means whereby the conspiracy was to be accomplished and carried into effect; that it is only necessary to set out the means to be used for its accomplishment when the conspiracy is to do a lawful act, but unlawful means are to be used to carry it into effect. Chicago, W. & V. Coal Co. v. People, 214 Ill. 421. All the counts of the indictment charge a conspiracy to obtain money by false pretenses and all charge a conspiracy to cheat and defraud by false pretenses, contrary to the form of the statute in such case made and provided. It is illegal at the common law to obtain money or property or to cheat and defraud by means of false pretenses. 19 Cyc. 386; 2 Bishop on Criminal Law (7th Ed.) Chap. 10. Section 46 of the criminal code of this state makes it a criminal offense for two or more persons to conspire or agree together to obtain money or other property by false pretenses, and section 96 of the criminal code makes it a criminal offense to cheat or defraud another by any false pretense. If, therefore, it were held that the several counts of this indictment did not set out the false pretenses which were used to accomplish the objects of the conspiracy charged in the indictment, we would be of the opinion that the indictment was sufficient. The second and third counts of the indictment do set out the false pretenses which were used as a means to accomplish the object of the conspiracy with sufficient particularity. The statute provides, and in Tedford v. People, 219 Ill. 23, the court said, on page 26: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” Clearly the second and third counts of this indictment state the facts so plainly that the nature of the charge might be easily understood by the jury.

In Johnson v. People, 22 Ill. 314, the indictment charges that the defendants “wickedly and unjustly devising and intending one Joshua B. Casey to defraud and cheat of his goods and property, they did then and there falsely and fraudulently conspire, combine, confederate and agree together among themselves to get and obtain, knowingly and designedly, by false pretenses, of the said Joshua B. Casey, one horse, of the value of six hundred dollars,” with the intent to defraud and cheat him of the same, and the court, in disposing of the question as to the sufficiency of this charge in the indictment, said, on page 316: “The first question presented is whether the court erred in overruling the demurrer to the indictment. Our statute has declared it to be an offense to obtain goods by false pretenses. And ‘undoubtedly, as obtaining goods by false pretenses, is a statutory misdemeanor, conspiracies to effect them are indictable.’ Whart. Crim. Law, 674.”

If any count of an indictment is good, it is sufficient to sustain a conviction. Lyons v. People, 68 Ill. 271; Thomas v. People, 113 Ill. 531; Ochs v. People, 124 Ill. 399; People v. Smith, 239 Ill. 91. In the Ochs case, supra, on page 414, it is said: “Whether there is anything of substance in this variance, we need not consider, for even if the count be defective, that would be of no avail, it being the well settled principle that a conviction on a general verdict will be sustained, although some of the counts are faulty, if there be one good count in the indictment.” Hiner v. People, 34 Ill. 297.

The evidence shows that Darr and Six were .in the real estate business and that Six was also in the business of buying and selling horses; that Hill was in the harness business and had been associated with Six in various horse deals prior to March 17, 1911; that Darr was in straitened circumstances financially; that he had an interest in the Aldine Hotel in Peoria; that on February 10, 1911, he secured $13,000 insurance on the building; that on February 17, 1911, he secured $2,000 more insurance on the building; that March 1, 1911, he secured $2,500 insurance upon the household goods in the building; that in the latter part of February or the first part of March, 1911, the building became unoccupied and a portion of the household goods were removed to Springfield; that on March 2, 1911, a small fire-occurred in the building which was extinguished; that on March 17, 1911, the building was practically consumed by fire together with damage to its contents; that Darr made proofs of loss to the furniture and received $650 in settlement.

Hill testified that he had previously agreed with Six; to burn the building; that Darr was to collect the insurance and that he was to receive $250 for setting the fire; that Darr, Six and he left Springfield on the evening of the 16th of March, 1911, at about 8 p. m., and on their arrival in Peoria went to the Aldine Hotel and made an inspection of the same; that they then went to the Majestic Hotel in Peoria, where Darr registered in his own name and Hill registered under the name of Hall and Six as James Knott, Darr occupying one room, Hall and Knott another; that they met at the Aldine Hotel the next morning, and Darr stayed but a few minutes; that he and Six nailed up the doors and windows; that in the afternoon he and Six purchased an oil stove, some groceries and five gallons of kerosene and had the same delivered at said building in order to show that some one lived there; that they poured the oil down the wooden elevator shaft; that the stove was placed near the elevator shaft for the purpose of showing that it might have caused the fire; that thereupon Six left the building and at about 8 p. m. Hill set the fire; that on March 20,1911, Six gave Hill a check for $75 drawn by Darr, in part payment for setting the fire; that afterwards, in a conversation in Andy Terrill’s office in Springfield, Darr told Hill to cash the check and said that he would give Hill the balance the following week.

Andy Terrill testified that some time in January, 1911, Darr came to his office and told him that he had been approached by a party who offered to burn the Aldine Hotel for ten per cent, of the insurance and that he advised Darr not to do it; that about three weeks before the fire Darr came to his office again and said: ‘ ‘ That man Hill has been after me again and he wants to burn that building, what do you think of it? I just want your advice;” that a short time after the fire Darr and Hill met in his private office.

Six denied making a contract with Hill to burn the Aldine Hotel; denied going to Peoria on March 16, 1911; denied staying at the Majestic Hotel; denied being in Peoria on March 17, 1911, and denied that he went with Hill to buy the stove, groceries and oil. Six also testified that he never saw Hill until the 20th of March, 1911, when he gave him the $75 check in exchange for some harness and received a receipt therefor. Darr testified that he never saw Hill until in April, 1911. He denied that he had ever been approached by Hill on the subject of burning the Aldine Hotel and denied that he had a conversation with him in Terrill’s office a short time after the fire, but admitted being in Peoria on the 16th and 17th of March, 1911, and that he stayed at the Majestic Hotel. He also admitted that at about 10 o’clock in the morning of the 17th he went to the Aldine Hotel. Six testified that he was at home in Springfield during the evening of March 16th and called five witnesses to testify to that effect. All these witnesses contradict each other as to the time they saw Six that evening. For anything that appears in their evidence, he could easily have been there at about the time they testified to and still have caught a car for Peoria at 8 o’clock. Six and Darr both admit that Darr was indebted to Six, for which he had no security;' that Six had previously mortgaged some property in order to loan Darr the money and that a short time after the fire he cancelled the debt on receipt of an automobile. Six explained the $75 check by saying that it was given him by Darr in part payment of the indebtedness and given by him to Hill in exchange for some harness; but admitted that he never received any harness from Hill. Hill testified that the receipt was given as a blind.

Proof was offered that Hill was addicted to the use of liquor and morphine, and his reputation for truth and veracity was questioned. There was also proof both in support of and against Six’s reputation for truth and veracity. The question of the credibility of witnesses and the weight to be given to their testimony was for the jury, and a court of review will not set aside the verdict unless it is satisfied, from a careful consideration of the whole testimony, that there is reasonable doubt of the guilt of the accused.” Flanagan v. People, 214 Ill. 170; People v. Deluce, 237 Ill. 541; People v. Nall, 242 Ill. 293.

It is also contended that the court erred in admitting evidence of a conversation relative to taking out insurance upon the building in which the fire occurred; in admitting evidence that a draft given by Darr in payment of the premium was not paid and admitting such draft in evidence; in permitting Hill, who is termed in law an accomplice, to testify to a conversation which he claimed he had with Darr in Terrill’s office after the fire; in permitting the people, on the cross-examination of one of the defendants’ witnesses, to show that Darr was indebted to the witness; and in compelling Six, upon cross-examination, to state the circumstances of a fire which occurred in a store owned by his wife; also in regard to the amount of money Darr had borrowed of Six; also that it was improper practice to take witnesses subpoenaed for the defendants before the grand jury. We are of the opinion that the court did not err in admitting evidence of a conversation about the insurance on the building in which the fire occurred nor relative to the draft nor what Darr told Hill after the fire. If Six claimed that he should not be affected by what Darr said after the fire, he should have asked an instruction limiting the effect of the evidence to Darr, as it was clearly competent against the latter. We are of the opinion that it was not error to show on the cross-examination of defendants’ witness his financial relations to Darr, nor was it error to take defendants’ witnesses before the grand jury. Moreover, no objection was made to the admission of the testimony showing that the witnesses had been taken before the grand jury. If these defendants had been engaged together in other cities in matters wherein there had been fires, and loss by insurance companies, we do not see why this and also the financial relations between Darr and Six might not be brought out on cross-examination.

Defendants sought to prove that a man, not a party to the suit nor a witness, called Darr on the telephone and threatened to turn him in for burning the Aldine Hotel if he did not pay him a certain amount of money. This evidence was properly excluded.

It is contended that there is no evidence tending to prove that the property was ever insured. The secretary of the insurance company was a witness and identified a policy issued to Darr and told the amount paid thereon after the fire. The policy and the proofs of the loss and the receipt of the money were all in evidence. Complaint is made of the giving of the people’s 18th, 35th, 38th, 44th, 45th, 50th, 51st, 55th, 57th and 58th instructions and of the refusal of two of the instructions requested by plaintiffs in error.

Instruction 18 was in the form approved by the supreme court in other cases.

Instruction 35 was on the alibi sought to be established by Six and was not applicable to this case for the reason that he was not seeking to prove an alibi at the time the conspiracy was formed, but to prove that he was not at certain places where the people’s witnesses placed him when the conspiracy was being carried into effect and it might well have been refused, but plaintiffs in error’s given instructions fully explained the law of alibi as applied to the evidence and the jury could not have been misled by this instruction.

Instruction 38 told the jury that while they must be convinced from the evidence of the guilt of the defendants beyond a reasonable doubt in order to warrant a conviction, still the proof need not be'the direct evidence of persons who saw the offense committed, but that the acts constituting the crime may be proved by circumstances. Instruction 44 told the jury that if’ they believe from the evidence that the witness, Hill, was an accomplice in the crime charged, still, under the law, he is a competent witness and his evidence should be considered in connection with all the other evidence in the case as explained in the instructions. We see no error in these two instructions.

Instruction 45 told the jury that if they believed from the evidence beyond a reasonable doubt that the testimony of the witness Hill had been corroborated by competent witnesses, or by facts and circumstances appearing in evidence, the jury had a right to give it the same degree of weight as any other witness who may have testified in the case. We doubt the propriety of this instruction. While Hill had been corroborated in certain features of his testimony, yet there were other circumstances against him as to whether he had been impeached; whether he was a morphine fiend; and whether he had offered to change his testimony if he was given a certain compensation; but we do not think that the judgment should be reversed on that account.

Instructions 50, 51 and 56 defined the crime of conspiracy and when considered together, we do not think the jury could have been misled by 50 or 51. The criticism of 55 is that it does not contain the elements necessary to constitute the crime of conspiracy to obtain money by false pretenses under the statute, for the reason that it omits the words, “knowingly and wickedly” and proceeds upon the theory that it is only necessary that the intentions be to cheat and defraud. This question was fully considered in answering the objections to the sufficiency of the indictment.

Instruction 57 told the jury that if they believe from the evidence in the case beyond a reasonable doubt that the fact of a conspiracy was shown by the evideuce, then in that state of the proof, any act of any one of the conspirators in the prosecution of the enterprise is considered the act of all. This we think a correct statement of the law.

Instruction 58 told the jury that if they believed from the evidence beyond a reasonable doubt that defendants conspired and agreed with Hill to set fire to the building mentioned in the indictment and to secure by means thereof the property of the insurance company, and that Hill carried into execution the agreement; it is immaterial whether or not the other defendants were present at the time of the fire. This instruction is incorrect in alluding to the building alleged in the indictment when no building is mentioned in the indictment. It should have said the building mentioned in the evidence, but, as no building was mentioned in the indictment, the defendants could not have been injured by the instruction.

The first refused instruction said that the policy of the law deems it better that many guilty persons shall escape rather than one innocent person should be convicted and punished. This instruction does not state a correct rule of law. Adams v. People, 109 Ill. 444; Seacord v. People, 22 Ill. App. 279; aff’d 121 Ill. 623. Moreover, it contained but a mere abstract principle of law and for that reason also it was not error to refuse it. Devlin v. People, 104 Ill. 504.

Refused instruction two was proper except that it said that it was the duty of the jury to reconcile, if possible, the evidence with the presumption that the plaintiffs in error were innocent. This is not the law. It was possible to presume that all the evidence introduced by the people was false, but it was not the duty of the jury to do that. Their duty was to reconcile the evidence with the presumption of the defendants’ innocence if this was reasonably possible and consistent with a full consideration of all the evidence in the case.

Fault is found with the failure to give an instruction that would permit the acquittal of one defendant and the conviction of another. This was a question that concerned the defendants, and if they wished such instructions they should have asked for them, which they did not do.

We think defendants’ exceptions to the instructions no reason for a reversal. In Ritzman v. People, 110 Ill. p. 371, the court said: “It has often "been said, and we repeat here, that to require absolute, literal, technical accuracy in instructions, would, as a general rule, defeat the ends of justice, and bring the administration of the criminal law into disrepute and just contempt. It is sufficient when the instructions, considered as a whole, substantially present the law of the case fairly to the jury. That, we think,, has been done in this case.”

A special bill of exceptions set out certain language used by the assistant state’s attorney in addressing the jury. In each instance where defendants objected, the objections were sustained. If the assistant state’s attorney persisted in these remarks after the objections had been sustained, defendants did not object to such persistence, nor take any exceptions to the persistence, nor have they any exceptions upon the subject. It is true that under the amendment of the practice act, in force July 1, 1911, and before this trial, it is not necessary to preserve an exception, but under that provision there must have been a ruling adverse to the party complaining. All the rulings on the objections to the remarks of the assistant state’s attorney were in favor of the defendants. Conceding the conduct of counsel in the respects stated may be subject to criticism, yet it cannot be regarded as of so gross a character as to require a reversal of the judgment.

Complaint is made that when the jury returned their verdict they were not accompanied by a sworn officer. The record recites that they retired in charge of a sworn officer and that thereafter they returned into court with their verdict. The defendants made no objection to the jury returning without a sworn officer. There is no statement in the record that they were not accompanied by a sworn officer, and as they retired in charge of a sworn officer, the presumption is that they returned in charge of the same officer. It is urged that the court erred in refusing a new trial on the ground of newly-discovered evidence. The affidavits filed by plaintiffs in error upon the motion for a new trial show that whatever new evidence it was proposed to introduce upon another trial was merely cumulative and impeaching and not conclusive in its character. A new trial will not be granted on the ground of newly-discovered evidence which is merely cumulative and not conclusive. Klein v. People, 113 Ill. 596; Bean v. People, 124 Ill. 576; Harter v. People, 204 Ill. 158. The practice is well settled in this state that a new trial will not be granted for the purpose of permitting the introduction of such additional evidence. Gilmore v. People, 124 Ill. 380.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Hamilton Machine Tool Company, Appellee, v. Mechanics’ Machine Company, Appellant.
    Gen. No. 5,647.
    1. Sales—when owner not divested of title. Where the owner of a machine left it with a company to display as a model to take orders from and authorized a sale thereof under certain conditions if he approved the order, title does not pass to a creditor of such company who took the machine in payment for a debt hut knew it was made hy the owner, made no attempt to ascertain whether the company owned it, signed no order and received no invoice, the owner having immediately repudiated the transaction.
    2. Agency—when rights of owner of personalty not prejudiced hy statements of agent that he owns it. A company, with which a machine is left to display as a model to take orders from, with authority to sell under certain conditions if the owner approves the order, cannot prejudice the owner’s rights by representing to a creditor, who takes the machine in payment for a debt, that it is the owner thereof.
    3. Assumpsit—when action lies. Where a company with which a machine is left by the owner to display as a model and take orders from sells it, without authority, to a purchaser who disposes of it and receives the price, the owner may sue the purchaser in assumpsit.

      4. Agency—when one with whom goods are left is only a factor. Where a machine is left with a company to display as a model and take orders from, with power to sell on certain conditions on the owner’s approval, such company is only a factor and cannot transfer title to a creditor who takes it in payment for a debt, though such creditor has no notice of the owner’s relation to it.
    5. Fobeign corporations—when not doing business in Illinois. A foreign corporation is not transacting business in this state, where it places machine on display with a company in Illinois and authorizes it to take orders and to sell the display machine under certain conditions and a creditor of the company takes a machine in payment for a debt, which transaction the corporation immediately repudiates and demands payment from the creditor whom it credits with a part payment made by the company.
    Appeal from the County Court of Winnebago county; the Hon. Louis M. Reokhow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.
    Johnson & Johnson, for appellant.
    A. Philip Smith, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellee is an Ohio corporation manufacturing lathes, etc., with its principal office at Hamilton, Ohio. Appellant is an Illinois corporation engaged in the machinery business with its principal office at Bock-ford, Illinois. McDowell, Stocker & Co., hereinafter, called the McDowell Co., is a firm engaged in the display and sale of machinery in Chicago. For some time prior to March, 1909, appellee sold McDowell Co. its machinery outright. Thereafter its goods were placed with McDowell Co. on consignment for display from which orders could he taken, using the display machine as models, the orders to be sent to appellee for filling and the goods shipped to the customer from Hamilton, Ohio, payment to be made by the customer direct to appellee, McDowell Co. receiving a commission on such sales. If, however, the customer could not or would not wait for the goods to be manufactured and shipped from Hamilton, Ohio, and if the order was approved by appellee, it would direct McDowell Co. to ship one of the machines on display in Chicago. Among the machines so shipped by appellee for display by McDowell Co. was a Style B. Engine Lathe. On or about the 16th day of November, 1910, the secretary of appellant went to McDowell’s place in Chicago to collect a debt, and was asked to take some machinery in payment. He took this lathe and credited McDowell Co. with its purchase price. On December 21, 1910, the McDowell Co. notified appellee of such sale. Immediately appellee wrote appellant that the lathe was its property; that it was with McDowell Co. on consignment and that settlement therefor must be made direct to appellee, and after some further correspondence, appellee finally wrote appellant that if they did not want to keep the lathe under these terms, it would, on notice, give shipping instructions. On February 1, 1911, appellee credited appellant with $141.25, received from McDowell Co. to apply on the purchase price of the lathe and on refusal of appellant to return the lathe or pay the remainder of the purchase price, appellee commenced this suit in assumpsit in the County Court of Winnebago county to recover the value or price of the lathe. The declaration contained a special count alleging an indebtedness for the lathe and the common counts. Attached to the declaration was a copy of the account sued on. A plea of non-assumpsit and two special pleas were interposed to the declaration. The special pleas alleged that appellee was a foreign corporation organized for profit under the laws of the state of Ohio and had not complied with the statute of this state governing foreign corporations doing business within the state and that appellee did not come within any of the exceptions set forth in the statute and did not have a license to do business within this state pursuant to the statute and therefore could not maintain its action. There was a joinder of issue on the plea of non-assumpsit and a replication filed to the special pleas, alleging that the lathe was sold in the state of Ohio and that appellee was not doing business in the state of Illinois within the meaning of the statute governing foreign corporations, concluding to the country. A similiter was added and the court heard the evidence without a jury and rendered a judgment in favor of appellee for $423.75, the amount then due on the lathe, and this appeal is prosecuted to review such judgment.

Appellant contends that, granting appellee to be the owner of the lathe, the suit could not be maintained in assumpsit, but even if so maintainable, its indebted-' ness against McDowell Co. is a proper subject of set-off, and that the suit is not maintainable for the further reason that the lathe was sold in violation of the statute regulating foreign corporations doing business in this state. Appellant’s right of set-off was not raised by plea or notice under the general issue as required by section 47 of the practice act and therefore is not presented for consideration here.

By the arrangement disclosed in this record, appellee did not part with its title to the lathe when it was shipped to McDowell Co. and was not estopped from asserting its ownership when notified that it had been disposed of in violation of the terms of its consignment, unless it had done something to lead appellant to believe it was obtaining a good title to the same when it purchased it. There is no evidence to show that appellee so treated the lathe, but on the contrary, the evidence does show that appellee, as soon as notified, immediately repudiated the sale. Appellant’s representative testified that he knew the machine was made by appellee, did not ask to see an invoice from appellee, did not make any attempt to ascertain whether McDowell Co. owned the machine and that all McDowell said to him was that he could ship the tools. He paid no money for the machine, signed no order and received no invoice. - Even if McDowell Co. had represented to appellant that they owned the machine, it could not prejudice appellee’s rights. It is a cardinal principle of the law of personal property that its owner cannot be divested of it without his consent. Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411; Burton v. Curyea, 40 Ill. 320; Klein v. Seibold, 89 Ill. 540; Berry v. W. D. Allen & Co., 59 Ill. App. 149. In this case McDowell Co. was but the factor of appellee so far as the lathe in question was concerned. They could not transfer the title to appellant, even though appellant had no notice of appellee’s relation to it. A power to sell, such as is possessed by a factor or broker appointed for that purpose, can only be executed by way of sale and does not justify a disposition of the property in any other way. Gray v. Agnew, 95 Ill. 315.

It was stipulated on the trial that the lathe had been sold and converted into money by appellant before the suit was commenced. Where a party has converted the goods of another into money or money’s worth the owner may waive the tort and sue in assumpsit. Toledo, W. & W. R. Co. v. Chew, 67 Ill. 378; Landis v. Wolfe, 106 Ill. App. 533; City of Elgin v. Joslyn, 136 Ill. 525. The retention by appellant of the money received from the sale of the lathe gave appellee the right to sue appellant in assumpsit upon the implied contract on.the ground that appellee owned the lathe and that it had been sold to appellant, but that appellant, having disposed of it and received the avails, was liable for the value of the machine, unless the evidence justified appellant’s contention that the lathe was sold in violation of the statute.

Sections 67b, and 67c, Chapter 32, Hurd’s B. S. 1911, provide: “Before any foreign corporation for profit shall be permitted or allowed to transact any business, or exercise any of its corporate powers in the State of Illinois,” such corporation shall procure a certificate from the Secretary of State, authorizing it to transact business within this state. Section 67g, of the same act provides certain penalties for its violation, and provides that in addition to such penalties, if any such corporation shall fail to comply with the statute, no suit may be maintained by it, either .at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort, in any court in this state. Appellee did not have the license required by the statute. The question then arises, did appellee transact business in the state of Illinois within the meaning of the statute 1 We think all courts agree that these statutes must receive such construction and enforcement as will not interfere with interstate commerce, and almost all agree that the sale and delivery of goods or manufactured commodities, not properly subject to police surveillance, by a citizen or corporation of one state to a citizen or corporation of another state is interstate commerce. In Havens & Geddes Co. v. Diamond, 93 Ill. App. 557, we held that where a foreign corporation manufactures goods in a foreign state, and sends drummers into this state who solicit and take orders in this state, and such orders are accepted in a foreign state and the goods there shipped consigned to the purchaser, this is not doing business in this state within the meaning of our statute regulating foreign corporations. In John Spry Lumber Co. v. Chappell, 184 Ill. 539, it was said: “The John Pritzlaff Hardware Company, a corporation organized in the State of Wisconsin, had sold goods to the firm of Gregg Bros. & Chappell, in consequence of which they became indebted to-it, and the amount of its judgment resulted from such sale and delivery of the goods. It had the right to invoke the aid of the courts in the collection of the debt due it,” etc. On the other hand, in Union Cloak & Suit Co. v. Carpenter, 102 Ill. App. 339, it was held that a foreign corporation who sent its goods to its agent in this state, to be sold here at retail, was doing business in this state within the meaning of the statute. This case turned upon the fact that the goods were sent into this state by the owner, and here displayed and sold. The only difference in the conduct of business involved in the case at bar and the conduct of business in the Havens case, supra, is, if the buyer did not or could not wait for the lathe, one of the sample lathes on display might, on the approval of appellee, be shipped from Chicago. Since the proof shows that the lathe in question was the only one sold by McDowell Co. directly to a customer, which order was repudiated by appellee as soon as brought to its notice, we can see no difference in appellee’s method of doing business than in the case of a traveling salesman or drummer taking orders as in the Haven case, supra, and the suit can be distinguished from the case of Union Cloak & Suit Co. v. Carpenter, supra, as in that case the goods were sent into the state to be exhibited and sold at retail and it is not in conflict with the recent case of International Text-Book Co. v. Mueller, 149 Ill. App. 509, as in that case one of the grounds for the holding that appellant therein was transacting business in the state in violation of the statute was that it maintained a distributing office in this state, where it shipped textbooks in car load lots, which text-books were thereafter sent in single volumes by mail or express to its students residing within certain territory which constituted a part of the consideration for the correspondence course for which the students paid a certain sum of money.

We are of opinion that the transaction between appellant and appellee, disclosed "by the record in this case, was not “transacting business within this state” on the part of appellee within the true meaning of the statute upon which appellee’s special pleas are based, and the judgment is affirmed.

'Affirmed.


text:
    William McEniry, Appellant, v. Tri-City Railway Company, Appellee.
    Gen. No. 5,692.
    L 'Automobiles—contributory negligence. If the driver of an automobile which was damaged in a collision with a street car looked and saw the car coming and drove upon the track with the intention of compelling the car to stop, he was guilty of contributory negligence.
    2; Evidence—court’s discretion as to cross-examination. In an action for damages to an automobile struck by a street car which it is alleged was running at a faster rate than permitted by ordinance, it is within the court’s discretion to permit plaintiff, on cross-examination of the conductor, to show its speed and refusal to permit such cross-examination is not reversible error.
    3. Evidence—what not proper cross-examination. Where it is alleged that a street car which struck an automobile was traveling at a faster rate than permitted hy ordinance if evidence, offered on cross-examination of the conductor by plaintiff, tends to establish a schedule rate at the time and place of the accident in excess of that permitted by ordinance it is a part of plaintiff’s case in chief and not proper cross-examination.
    4. Evidence—when ruling excluding certain cross-examination for time being not error. Where a refusal to permit certain cross-examination is not final, the ruling is not error in the absence of a subsequent offer of the evidence.
    5. Evidence—hypothetical questions. A party who asks a hypothetical question in rebuttal which he thinks is predicated-on the evidence cannot assume what is not within the range of legitimate evidence.
    6. Evidence—order of. Where plaintiff in an action for damages to an automobile which was struck by a street car fully went into the question of the speed of the car in his evidence in chief, evidence as to its speed which may be considered testimony in chief was proper then only, and the court may in its discretion exclude further evidence on that question offered in rebuttal.
    7. Witnesses—when motorman of street car has not shown qualifications to give expert opinion. An experienced motorman, called in an action for damages to an automobile which was struck by a street car, has not shown qualifications to give an expert opinion as to the speed of the car, when the motorman started to set the brakes, based on the distance the automobile, on which the brakes were set, was carried by the car, where he has shown no knowledge or experience as to the retarding effect of striking an automobile with its inner and outer brakes set,
    8. Evidence:—what hypothetical question properly 'excluded. A hypothetical question asked in rebuttal in an action for damages to an automobile which was struck by a street car, as to the speed of the car is properly excluded where it is not directed to the car in question; only the type of the track and not the type of car is stated; the track is described as shown by photographs in evidence, but only the car is so shown; the direction in which the car was going to knock the automobile in a certain direction is not stated; the question in substance was put to the witness in chief and answered; and no cross-examination was made on the subject.
    9. Evidence—what competent on re-direct examination. In an action for damages to an automobile struck by a street car where plaintiff on cross-examination of the motorman goes into the question as to his purpose in setting the brakes, it is competent for defendant on re-direct to prove that he did not set the brakes to avoid a collision but to take on a passenger.
    10. Witnesses—when witness disqualifies himself from answering hypothetical question. A witness is disqualified from answering a hypothetical question as to the speed of a street car when the motorman started to set the brakes, based on the distance an automobile which it struck was carried, when it does not state the extent to which the brakes were set, where he previously stated that it would depend on “how tight the brakes were set,”
    11. Evidence—discretion of court as to re-direct examination. It is within the discretion of the trial court to permit re-direct examination as to a matter concerning which the opposite party cross-examined.
    12. Negligence—when instruction as to due care not misleading. In an action for damages to an automobile where numerous instructions correctly instruct as to the necessity of the driver using due care for its safety an instruction providing that he must use due care for his own safety cannot mislead.
    13. Automobiles—instructions. Where action is brought for damages to an automobile struck by a street car, an instruction is proper which states that, if the driver in the exercise of due care could and should have looked and seen the car and avoided the collision and did not, the finding should be for defendant.
    Appeal from the County Court of Rock Island county; the Hon. Robebt W. Olmsted, Judge, presiding. Heard in this court at the December term, 1911.
    Affirmed.
    Opinion filed October 15, 1912.
    Rehearing denied April 3, 1913.
    William McEniry, Pro se.

    Searle & Marshall, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

William McEniry brought an action on the case in the County Court of Bock Island county against the Tri-City Bailway Company, an Iowa corporation, for damages caused to his automobile resulting from a collision with a street car in the city of Bock Island where Seventh street intersects with Twenty First street. The declaration contained three counts. The first count charged that the defendant so carelessly and improperly drove and managed the electric car that through the negligence and improper management and unskillfulness of the defendant by its servants, the electric car ran into and struck the automobile with great force and violence and thereby damaged said automobile to the extent of $1,000. The second and third counts set out an ordinance of the city of Bock Island granting to the Tri-City Bailway Company, its successors and assigns, the right and authority to construct, maintain and operate a single or double track electric street railway for the period of twenty years upon certain designated streets, among others, Twenty First street and alleged that the accident was the result of the violation by the street railway company of section 8 of said ordinance which limited the speed of ears to twelve miles per hour and alleged that the car in question was being run at the unlawful rate of thirty miles per hour. The third count averred the acceptance by the street railway company of said ordinance and that the same was in force and binding upon said company. A plea of not guilty was interposed and upon a trial the jury found the company not guilty. A motion for a new trial was denied, judgment was entered on the verdict, and Mc-Eniry prosecuted an appeal to the Supreme Court on the ground that the validity of the ordinance was involved. The Supreme Court held that the averments of the declaration did not raise the validity of the ordinance and that it lacked jurisdiction to consider the appeal upon its merits and transferred the cause to this court. McEniry v. Tri-City Ry. Co., 254 Ill. 99.

So much of the briefs, arguments and instructions as relate to the subject of the validity of the ordinance set out in the declaration is not before this court.

On February 23, 1911, at about 1:00 p. m., appellant’s son, about 16 years of age, was driving the automobile west on Seventh avenue in the city of Bock Island approaching the intersection of Twenty First street which crosses Seventh avenue at right angles running north and south. Appellee’s electric car coming from the south, and the automobile going west collided at the crossing and the automobile was damaged. The driver of the automobile testified that at a point about 150 feet east of Twenty First street he had an unobstructed view for a block south of Seventh avenue to Eighth avenue and that he looked in that direction and saw no car then; that he was driving at the rate of from ten to twelve miles per hour; that from the time he first looked south he gave his attention to some people on the north side of Twenty First street and did not look south again until he was about forty feet from the track when for the first time he saw a car 150 feet south, coming north at a speed of from twenty to twenty-five miles per hour and the motorman setting the brakes; that he immediately applied the brakes to the automobile and brought it to a stop with the front wheels just over the east rail of the track and before he had time to back off the track the car struck the automobile, turned it around and pushed it north on Twenty First street and about fifty feet and the car stopped about seventy feet further on. Four other witnesses testified for appellant that the car was going at from eighteen to twenty-five miles per hour. Four witnesses among them the motorman and the conductor in charge of the car, testified for appellee that the car stopped at Eighth avenue to take on a passenger. Three witnesses testified for appellee that the car was going at from eight to ten miles per hour at the highest speed as it approached Seventh avenue. A number of appellee’s witnesses testified that at the time of the collision the car was going very slow and had almost stopped. There was expert evidence for appellee that a car geared as this one could not run more than eighteen miles per hour and that it would take four blocks to work up such a speed. There was proof that the front end of the automobile was just a short distance behind the rear end of the car when the car stopped and other proof that the automobile was carried much farther and that the car ran about half a block before it stopped.

The driver of the automobile may, in fact, not have looked, although he testified that he did. He may have been further back when he looked. The great preponderance of the proof is that the street car stopped at Eighth avenue and it may be that when the driver looked in that direction it was standing still and he failed to observe it. His look may have been much more casual than he now supposes. He may have been driving at a greater rate of speed than he thinks he was. It may also be that the jury concluded that, notwithstanding his testimony, he was, in fact, trying to cross the track .ahead of the approaching car. He may have seen the car and thought that he could get across ahead of' it or that he could force the motorman to stop. He had nothing to distract his attention except, as he says, watching the two people on the street. If he had looked and saw the car coming and drove upon the track with the intention of compelling the car to stop, then he was guilty of contributory negligence. Chicago P. & St. L. R. Co. v. DeFreitas, 109 Ill. App. 104; Chicago R. I. & P. R. Co. v. Jones, 135 Ill. App. 380; Hauk v. Peoria R. Co., 154 Ill. App. 473. The question as to what amounts to due care of course cannot be determined by any hard and fast rule, but must be determined from the facts and circumstances in the particular case. The question whether the driver of the automobile was exercising due care for the safety of the machine in approaching the street car line and whether the motorman was exercising due care in approaching the crossing, were questions of fact for the jury and their findings on these questions, not being against the manifest weight of the evidence, and approved by the trial judge, should not be disturbed unless it is clear that the verdict was the result of some error of law committed by the trial court in the admission or exclusion of evidence, or in the ruling on instructions.

It is contended by appellant that if the car had been going only twelve miles per hour and if the driver of the automobile kept up his speed, the automobile would have passed over the track before the car reached it and that the car must therefore have been going in violation of the ordinance and that the driver of the automobile had a right to presume that no car would run in excess of the speed limited by the ordinance and that as a matter of law it was not negligence for the driver to fail to look south after the first time. Granting that the driver of the automobile had a right to govern his conduct on such an assumption, or giving such an assumption the full force and strength of a legal proposition, appellant had the full benefit of it in his given instructions one, two and four.

Appellant complains that the trial court unduly restricted his right of cross-examining the conductor of appellee’s car. He was examined in chief, cross-examined and recalled for further cross-examination and asked by appellant: “How many blocks do yoii go south?” This question was objected to as not proper cross-examination. Thereupon appellant stated that he proposed to show by this witness the distance appellee’s car ran in making the trip in order to show that its schedule time compelled it to run faster than permitted by the ordinance. If the offered evidence tended to establish a schedule rate at the time and place in question in excess of that permitted by the ordinance, it was a part of appellant’s case in chief and not a proper subject for cross-examination. The court may permit a party to introduce evidence in support of his case or defense, during the cross-examination of his adversaries or his adversaries’ witnesses, but the refusal of such permission is not error. Peyton v. Village of Morgan Park, 172 Ill. 102; Wheeler & Wilson Mfg. Co. v. Barrett, 70 Ill. App. 222; 38 Cyc. 1355. The order of testimony, both as regards the examination of the particular witnesses and the general course of the trial is within the discretion of the court. Ranney v. St. Johnsbury & L. C. R. Co., 67 Vt. 594, and cases there cited. As before stated, appellant did not offer or advance this evidence as proper, cross-examination, but stated his object to be to prove the speed of the car. In offering this evidence, appellant was invoking the discretion of the court. The court permitted him to recall the witness for further cross-examination. The extent to which he might thus cross-examine him was purely a matter of the discretion of the court and the refusal of the court to permit a cross-examination upon the question which, if competent at all, was a part of appellant’s case in chief, is not reversible or reviewable error. Moreover the ruling of the court was made only for the time being and was not final, and in the absence of a subsequent offer of the evidence by appellant, such a ruling would not be error.

Appellant in rebuttal asked of a witness who had been a motorman six or seven years before, the following hypothetical question:

“Suppose a car, running on a level track, of the type that I have shown you in this photograph * * * with the rail dry and brakes inqgood working order, is running upon a track as I have described, and the car, after the brakes are applied, runs a distance of from 190 to 200 feet and at a point about 90 feet from the point where the brake is applied it strikes an automobile at about the front wheel, and the engine of the automobile weighs a thousand pounds, and both the outer and inner brakes of the automobile are set, it turns the automobile from its direction of west to that of north and carried the automobile, with the brakes set, a distance of 30 feet, and the ijcar runs on beyond the automobile 70 feet before it comes to a stop; what would you say was the speed of the car at the time the motorman started to set the brakes?”

The court sustained an objection to this question. There are several reasons why that ruling was proper. After he had rested, neither party can, as a matter of right, introduce any further testimony which may be properly considered testimony in chief. 38 Cyc. 1355. The strict rule is that he must try a case out when he commences. 1 Thompson on Trials, Sec. 346. Any relaxation of this rule is but an appeal to the sound discretion of the court. Graham v. Davis, 4 Ohio St. 362, 62 Am. Dec. 285. The exercise of such discretion is not reviewable. City of Sandwich v. Dolan, 141 Ill. 441, and cases there cited. Appellant also contends that he had a right to ask this question on the ground that he thought it was predicated on the evidence, and he cites Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47; Shaughnessy v. Holt, 236 Ill. 485, in support of his contention. We find on an examination that these cases, while using a general expression seemingly justifying counsel’s contention, did not consider the real question at issue here and we think it must necessarily be that the court meant such expressions only with the qualification as stated in the case of Haish v. Payson, 107 Ill. 365: “but it is not permissible to assume what is not within the range of legitimate evidence.” It seems to us that the reason for such qualification is so manifest that it is only necessary for it to be stated to prove its correctness. Again, appellant argues, that it was highly important evidence on the question of the speed of the car just before the accident when the brakes were applied. If so, that question had been fully gone into by appellant in his evidence in chief and if proper at all, it was proper then and then only, and he could not thus divide up his evidence, using part in chief and the rest in rebuttal. 38 Cyc. 1356, Note 34. Moreover, the witness had not shown any qualifications to give an expert opinion; as, for instance, he had shown no knowledge or experience with the retarding effect of striking an automobile with its inner arid outer brakes set. The question was not directed to the particular car in question; the type of the car was not stated, only the type of the track; it describes that the track is shown by photographs, whereas they were photographs of the car that were shown; the direction the car was going to knock the automobile from its western direction to a northerly direction was not stated; there was no proof that the brake was in good working order. The substance of the question had been put to the witness in chief and had been answered; no cross-examination had been made on the subject. Furthermore, the witness had disqualified himself from answering the question which did not state the manner or extent in or to which the brakes were set by previously answering the obvious truth that that would depend “on how tight the brakes were set,” an absolutely essential element to the question to entitle it to be answered.

It is urged that it was reversible error to permit the' motorman, on redirect examination, to state, over the objection of appellant, what he had in mind with reference to a collision with appellant’s automobile at the time he began to set the brakes on the car, for the reason that appellant could not cross-examine him as to the condition of Ms mind. Appellant fully cross-examined said witness and sought to show that it was for the purpose of avoiding a collision and the witness testified that it was to take on a passenger and to avoid a collision, but that the car had almost 'stopped when the collision occurred.. The question complained of bears directly on the same subject and was therefore proper on re-direct examination. It was just as competent for appellee to prove by the witness that he did not set the brake to avoid a collision, as it was for appellant to show that he did set it for that purpose. Furthermore, it is purely within the unreviewable discretion of the court.

The seventeenth instruction given for appellee speaks of the necessity of the driver of the automobile using due care for his own safety instead of limiting it to the safety of the automobile. Appellant complains of this. We think his criticism is hypercritical and without merit. The words, “Ms own safety,” might, of course, have been'omitted, but their presence entails no different kind or degree of safety than if limited to the automobile. It necessarily shows that if he failed to exercise due care for his own safety he also did for the safety of the automobile and vice versa. Hence, in our opmion, no prejudice could result from the phrase being in the instruction. Moreover, the jury were correctly instructed on this branch of the case by numerous instructions for both appellant and appellee and could not have been misled by the instruction in question.

The same criticism may be made of appellee’s eighteenth given instruction and the same reasoning in reply.

Appellant says that appellee’s twenty-first instruction was erroneous, because it told the jury that if the driver of the automobile could have looked and seen the car and did not, they should find for the appellee. The instruction is not susceptible of such a construction, but on the contrary plainly told the jury that if, in the exercise of due care, he could and should have looked and seen the car and avoided a collision and did not, then they should find for appellee, an entirely different meaning from that contended for by appellant. It assumes no fact, but submits the question as '’one of fact to be determined from the evidence, whether the driver of appellant’s automobile, in the exercise of ordinary care, should have looked for the car before attempting to cross the track and whether he did look, and then states that if he should have looked and did not look, and the automobile was injured in consequence of his failure to do so, the jury should find appellee not guilty. The question presented by the instruction was appellee’s chief ground of defense and was properly submitted to the jury. Chicago & E. I. R. Co. v. Storment, 190 Ill. 42; Chicago, B. & Q. R. Co. v. Camper, 199 Ill. 569; Mallen v. Maldowski, 203 Ill. 87; Chicago City Ry. Co. v. O’Donnell, 208 Ill. 267; Scanlan v. Chicago Union Traction Co., 127 Ill. App. 411.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.