author: Mr. Justice Bailey

text:
    Newton Watt v. The People of the State of Illinois.

      Filed at Ottawa October 2, 1888.

      1. Cbiminal law—of the venue—place of trial. Whenever the locus in quo of an offense can be precisely identified and shown, under section 4, division 10,-of the Criminal Code, the accused must be indicted and tried in the county in which the offense was committed. But when it can not be shown with certainty in which of two counties a crime has been committed, as, when it was committed upon a railway train while in motion, the accused may be tried and convicted in either of the two counties.
    2. While at common law, and under the rule established by both our former constitutions, criminal offenses were regarded as strictly local, and subject to prosecution only in the counties in which they were committed, the present constitution vests in the General Assembly the power to change that rule to such extent as that body may see proper. The General Assembly may now determine, by law, when offenses are to be deemed to be local, and when and within what limitations they are to be treated as transitory.
    3. Under the provision of the present constitution that “in all criminal prosecutions the accused shall have the right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed,” a prosecution may now be had in the county in which the offense is alleged in the indictment to have been committed.

      4. Where the crime charged has been committed under such circumstances as to render it doubtful in which of two counties it took place, the prosecution may be properly instituted in either one of such counties, and the indictment may properly allege its commission in either county. In such case, proof of the commission of the offense in one or the other of those counties, but under circumstances which make it doubtful or difficult to determine in which of them, is sufficient proof of the allegation that it was committed in the county named.
    5. Same—reasonable doubt—whether properly defined. On the trial of one upon the charge of murder, the court instructed the jury, “that the doubt under the influence of which the jury should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions, and remote conjectures as to possible states of facts differing from those established by the evidence. You are not at liberty to disbelieve as jurors, if, from the evidence, you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered:” Held, that the instruction announced a correct proposition of law.
    6. Same—omission of accused to testify in his oum behalf—remarks thereon by the prosecution. It is the duty of the trial court, in all criminal trials, when the defendant does not testify in his own behalf, to see that no allusion is made to that fact by the prosecution. Indirect and covert references to the neglect of the defendant to testify, may be as prejudicial to his rights as a direct comment upon such neglect.
    7. But it does not necessarily follow that every reference to the law on that subject is prohibited. The true test is, was the reference intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify.
    8. On the trial of two persons upon the charge of murder, in a case where the evidence was circumstantial, one of the counsel for the defense, in argument, stated the fact that one of the defendants had testified. Counsel for the prosecution, in his remarks, said: “My associates who preceded me, spoke of circumstantial evidence. They told you, and truthfully, too, that mis-convictions and mis-trials on circumstantial evidence occurred almost entirely in the dark ages, when prisoners were not allowed counsel in open court,—when prisoners could not testify on their own behalf.” On objection, the court stated that the remark should not have been made: Held, that the remark of counsel having been made to illustrate another topic, was not of such gravity as to call for a reversal of a judgment of conviction.
    9. Evidence—conversations with one to be affected thereby—or statements made in his presence. Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to understand what reply the party to be affected should make to them. Even if he makes no reply, the statement is still admissible, upon the principle that if a party is silent when he ought to have replied, the presumption of acquiescence arises. And the same rule applies in criminal cases.
    10. On the trial of one upon a charge of murder, a witness was allowed to testify, for the prosecution, to two conversations with the accused, concerning the matter charged, in the last of which he told the accused his prior statement was not probable, or even credible, giving his reasons why no one would believe the defendant’s statements, to which the accused replied, “Well, I can’t help it; it is true,”—which was objected to: Held, no error in the admission of the evidence of such conversation.
    11. Same—opinion of witness. On the trial of two defendants on a charge of murder, in the commission of which the facts showed a violent struggle with the deceased, two witnesses were shown some hair found in the hands of the deceased, and also a lock of his hair, and they were permitted to testify that the two specimens exactly resembled each other. The hair of the two defendants was almost black, while that found in the hands of the deceased was light brown in color, and there was no pretense that such hair came from either of the defendants: Held, that while the evidence was incompetent, being no case for expert testimony, its admission was harmless error, and not such as to require a reversal.
    Writ op Error to the Circuit Court of Grundy county; the Hon. Dorrance Dibell, Judge, presiding.
    Mr. A. E. Jordan, for the plaintiff in error,
    contended that the facts were not sufficient to convict Watt, and reviewed the evidence, and commented thereon.
    The statute authorizing the trial of a defendant for a crime out of the county where committed, is in violation of section 9, article 2, of the State constitution. Buckrice v. People, 110 Ill. 29; State v. McGraw, 87 Mo. 161; Ex parte Slater, 72 id. 106; State v. Lawrence, 12 Ore. 297.
    The court erred in allowing Withrow to testify to what he told Watt as to the general belief of his guilt, and the improbability of his story. Devine v. People, 100 Ill. 291.

      The court erred in allowing the experts to testify as to the similarity of the hair found in Nichols’ hands, with that taken from his head. State v. Knoll, 55 Wis. 250.
    There was error in the remarks of counsel for the People in alluding to the fact that Watt failed to testify. Campbell v. People, 109 Ill. 565; Austin v. People, 102 id. 261.
    The People’s instructions are erroneous in selecting certain / parts of the evidence and giving them undue prominence. The twenty-sixth instruction, in regard to a reasonable doubt, is clearly bad. Anderson v. People, 41 Wis. 430.
    Mr. O. N. Carter, State’s Attorney, Mr. S. C. Stough, and Mr. B. M. Wing, for the People,
    contended that the verdict is supported by the evidence, which they reviewed and discussed at considerable length.
    At common law, when the blow was inflicted in one county and death ensued in another, the venue might be laid in the latter. 1 Bussell on Crimes, (8th ed.) 548, sec. 6; State v. Pauley, 12 Wis. 599.
    Nearly every State has enacted that the trial may be had in either county, and such enactments are valid. Tippins v. State, 14 Ga. 422; State v. Pauley, 12 Wis. 599; Commonwealth v. Parker, 2 Pick. 550.
    As to the effect of improper remarks by counsel to the jury, see Wilson v. People, 94 Ill. 299; Garrity v. People, 107 id. 163; Spies v. People, 122 id. 1.
    There was no error in the admission of the testimony of Withrow. The case- of Devine v. People, 100 Ill. 291, is not in point.
    The instruction relating to reasonable doubt is taken from Commonwealth v. Hannan, 4 Pa. St. 272, and is identical with one approved in Spies v. People, 122 Ill. 1.
    Mr. George Hunt, Attorney General, also for the People.
   Mr. Justice Bailey

delivered the opinion of the Court:

At the March term, 1887, of the circuit court of Grundy county, Henry Schwartz and Newton Watt were jointly indicted for the murder of Kellogg Nichols. The indictment, as presented by the grand jury, consisted of seven counts, of which the seventh was quashed on motion of the defendants, and upon the remaining six counts the defendants were tried and convicted, and sentenced to imprisonment in the penitentiary for life. Watt alone has brought the record to this court, and assigned errors.

The first, third, fourth, fifth and sixth counts of the indictment are in the usual form, alleging the commission by the defendants of the crime charged on the 13th day of March, 1886, in Grundy county, and differing from each other only in their statements as to the instrument used, and the mode in which the homicide was perpetrated. The second count alleges that the murder was committed by the defendants on said 13th day of March, 1886, “in and upon a railroad car passing over the Chicago, Bock Island and Pacific railway, a railroad in the State aforesaid, which said car came into said county of Grundy and State aforesaid, on the day aforesaid.”

It appears from the evidence that Nichols, at the time he was killed, was an express messenger in the employ of the United States Express Company, and that his usual route was over the Chicago, Bock Island and Pacific railway, from Chicago, through Will and Grundy counties, to Davenport in the State of Iowa. The train of cars on which he was acting as messenger at the time of his death left Chicago at 11 o’clock P. M. on the 12th day "of March, 1886. At 12:45 A. M. of March 13, it reached Joliet in the county of Will, and there Nichols was seen alive and in the discharge of his duties. When the train reached Morris in the county of Grundy about three-quarters of an hour later, he was found lying on the floor of the baggage car in which he was riding, dead, having a large number of contused wounds on his head, face and hands, and Ms right arm broken at the wrist, having a bullet wound in his neck, another through the shoulder and a third tMough Ms left arm, and having a very severe wound on his left temple inflicted with an iron rod or poker, the last mentioned wound being necessarily fatal, and having probably produced death almost instantly.

The' murder was perpetrated, as the evidence clearly shows, in pursuance of a plan on the part of the murderers to rob the express safe then in the custody of Nichols, and containing at the time $21,500 in money. Of this sum, $20,000 was in one package consigned by the Merchants’ National Bank of Chicago to the Citizens’ National Bank of Davenport, and made up of four smaller packages of $5,000 each, all in $50 and $100 bills. The remaining $1500 was in three separate packages of $500 each. Beside the money, the safe contained several packages of cancelled vouchers and a quantity of watch springs. The train at the time consisted of the engine, a number of passenger coaches, and two baggage cars, the baggage cars being cars number 18 and 34, number 18 being placed next to the engine, and number 84 in the rear of and next to number 18. The dead body of Nichols was found lying on the floor of car number 18. The safe was in car number 34, and after the train reached Morris, it was found that it had been unlocked and the money stolen, and the residue of its contents scattered on the floor of the car. A subsequent examination of the inside of the lock disclosed marks or scratches, indicating that an unsuccessful attempt had been made to unlock the safe by means of a wire or other similar instrument, and the evidence tends to support the theory ‘that the robbers, after vainly attempting to get possession of the money in that way, went into the other car for the purpose of obtaining the key from Nichols; that a desperate struggle ensued, resulting in Nichols’ death, and that the robbers, having possessed themselves of the key, returned to the safe, opened it, and took out the money, leaving the key in the lock.

The line dividing Will and Grundy counties is about midway between Joliet and Morris. No witness saw the homicide, and it is impossible to determine from the evidence, whether it was committed while the car was in the county of Will or after it had crossed the line into the adjoining county of Grundy. The first question presented by the assignments of error is, whether, under these circumstances, the circuit court of Grundy county had jurisdiction of the offense.

By section 4, division 10, of the Oriminal Code, it is provided that, “the local jurisdiction of all offenses not otherwise provided for by law, shall be in the county where the offense was committed.” Section 6 of the same division provides that, “if the party killing shall be in one county and the party killed be in another county at the time the cause of death shall be administered or inflicted, or if it is doubtful in which of several counties the cause of death was administered or inflicted, the accused may be tried in either county.” Section 11 is as follows: “Where any offense is committed in or upon any railroad car passing over any railroad in this State, or on any water-craft navigating any of the waters within this State, and it can not readily be determined in what county the offense was committed, the offense may be charged to have been committed and the offender tried in any of the counties through or along or into which such railroad car or water-craft may pass or come, or can reasonably be determined to have been, on or near the day when the offense was" committed.”

It is manifest that the provisions of either the 6th or 11th sections of the statute above quoted are broad enough to cover " the present case. The cause of death was inflicted in either Will or Grundy county, but in which the evidence leaves it wholly in doubt. The offense was committed on a railroad car passing over a railroad in this State, and while it is shown to have been committed in one of two counties through which the car passed, it is impossible to determine in which with any degree of certainty. But it is insisted that the constitution secures to every person accused of a criminal offense the right to a trial by an impartial jury of the county in which the offense was committed, and that the foregoing sections of the statute, being in derogation of that constitutional right, are void. At common law all criminal offenses are deemed to be local and subject to prosecution only in the county where they were committed. In the early ages of English jurisprudence jurors who were impanelled to try either civil or criminal causes were themselves the witnesses, and rendered their verdicts upon their own knowledge, and therefore, in order that they might be qualified to perform their functions, they were summoned from the visne or neighborhood of the place where the matter to be tried arose. When at a later period they were required to find their verdicts upon the evidence of witnesses, it was still deemed important that they should come from the place where the'witnesses lived and where the dispute originated, since jurors from the visne or neighborhood were regarded as more likely to be qualified to investigate and determine the truth than persons living at a distance from the scene of the transaction. It thus became a settled rule of the common law that persons accused of criminal offenses should have a right to be tried by a jury of the visne of the alleged crime. Though originally more limited, the visne or neighborhood came to be understood to be the county where the offense was committed, and such was its signification at common law at the time that system of jurisprudence was adopted in this State. 1 Chitty’s Crim. Law, 177; 3 Reeve’s Hist. of Eng. Law, 476; 4 Black. Com. 349.

Undoubtedly the right to a trial by a jury of the county in " which the crime charged was committed is ordinarily a substantial and important legal right. It secures to the accused a trial among his neighbors and acquaintances, and at a place where, if innocent, he can most readily make that fact to appear. But it is difficult to see how that can be the case where the offense is committed on a railway train, and the circumstances are such that it can not he definitely loeatéd in any one of several counties through which the train passes. Those who are on the train are for the time being completely segregated from the communities through which they are rapidly passing, and there is ordinarily no circumstance which can make it more advantageous for a person accused of such crime to be tried in one county than in another. The right in such case to a trial in a particular county, if it exists at all, is at best a technical right, having no substantial importance or value to the accused.

Whenever the locus in quo of the offense can be precisely identified, under the provisions of the section of -the statute first above quoted, the trial should of course be had in the county where it was committed, but when such is not the case a somewhat different rule must be applied or the offender can not be tried at all. When it can not be determined in which of two or more counties the criminal act was perpetrated, the offender must, ex necessitate, be tried in a county which can not be proved beyond a reasonable doubt to be the actual visne of the crime. If he can not be so tried the law is powerless to punish him. The evidence of his guilt may be never so conclusive, but because of the impossibility of proving upon which side of an imaginary line the swiftly moving train happened to be at the instant the homicidal blow was struck, the murderer must be given complete practical immunity from all the penal consequences of this heinous offense. No court should adopt a construction of the law which would involve consequences of this character unless forced to do so by considerations which are insurmountable.

The phraseology of that section of our present constitution which relates' to the place of trial in criminal prosecutions differs materially in one respect from that of the corresponding provisions of the constitutions of 1818 and 1848. The constitution of 1818 provided that, in all criminal prosecutions, the accused should have a right to “a speedy public trial by an impartial jury of the vicinage;” and the constitution of 1848 provided that he should have a right to “a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed.” It must be admitted, probably, that both these constitutional provisions were susceptible of but one construction, viz., that of limiting jurisdiction in all criminal prosecutions absolutely to the county where the crime alleged was actually committed. The framers of our present constitution, recognizing, as we may assume, the infirmity of this rule, particularly in its application to cases like the present where it is impossible to determine in which of two or more counties a particular crime was committed, revised the section so as to make it read as follows: “In all criminal prosecutions the accused shall have a right to * * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” This modified phraseology may fairly be regarded as evidencing an intention to relax in some degree the rigid rule formerly prevailing. The prosecution may now be had in the county where the offense is alleged to have been committed. The allegation here referred to is doubtless that made by the indictment, that being the only document in which the proper allegations as to the vicinage of the crime are ordinarily made. The constitution then may be regarded as empowering the General Assembly to provide, in its discretion, for the presentment of indictments in which the allegation as to the vicinage of the offense may not be in accordance with the actual fact. If this is not so, the words inserted in the present constitution are meaningless, and the' instrument must be interpreted precisely as though they had not been used.

While at common law and by the rule established by both our former constitutions criminal offenses were regarded as strictly local, and subject to prosecution only in the counties where they "were committed, our present constitution vests in the General Assembly the power to change that rule to such extent as it may see proper. It may now determine by law when offenses are to be deemed to be local, and when and within what limitations they are to be treated as transitory. The General Assembly has accordingly, in the first section of the statute above quoted, established the general rule that jurisdiction of criminal offenses shall be local, unless otherwise provided by law, and in the other sections quoted provision is made for the cases where it is doubtful or can not be readily determined in which of several counties the offense is committed, and there, as between such counties, the offense is made transitory.

The crime charged in the indictment in the present case having been committed under circumstances which render it transitory as between Will and Grundy counties, the proseen-' tion was properly instituted in Grundy county, and the offense is properly alleged to have been committed in that county., Proof of the commission of the offense in one or the other of those counties, but under circumstances which make it doubtful or difficult to determine in which, is sufficient proof of the allegation that it was committed in Grundy county. It is unnecessary for us to determine whether the second count of the indictment, in which the fact that the homicide was committed on a railroad car passing over a railroad in this State and coming into Grundy county is specially pleaded, is sufficient to sustain the conviction or not, as the other five counts are clearly sufficient, and their allegation as to the venue of the crime is sustained by sufficient and competent evidence. The instruction given by the court to the jury at the instance of the prosecution, as to what would constitute legal proof of the allegation as to the venue, was entirely in harmony with the views we have expressed, and was, as we think, properly given.

The evidence upon which the defendants were convicted is purely circumstantial, and it is strenuously urged that, so far as it applies to defendant Watt, it is insufficient to sustain the verdict of guilty. It must be admitted that the case made against the other defendant is stronger and more conclusive than that made against Watt, hut after giving to the record that careful and patient consideration which the importance and gravity of the case demand, we are unable to say that, even as to him, the verdict is not the fair and proper result of all the evidence in the ease. The record is very voluminous, and any attempt to state in detail all the various circumstances proved, or to group and array them in such relation to each other as to present their full and proper criminative force, would far transcend the reasonable limits of an opinion. We must therefore content ourselves with referring briefly to some of the more general features of the evidence. .

At the time of the homicide Schwartz and Watt were both in the employ of the Chicago, Bock Island and Pacific Bail-way Company as brakemen, and had for a considerable time ■been acting in that capacity on the same train on which Nichols was running as express messenger, Watt having the position ■of head-brakeman and Schwartz that of rear-brakeman. On the night in question and about two hours prior to the time for the departure of the train from Chicago, it was ascertained ■that Bumsey, the baggage-man, had been taken suddenly ill, ■and his place was thereupon temporarily supplied by placing Watt in charge of the baggage and giving Schwartz the position ■of head-brakeman and one Johnson that of rear-brakeman. The end doors of the baggage cars in use by said railway company had spring locks which could be opened from the inside by merely turning a knob, but which could be opened from the outside only by the use of a key, and said doors were also supplied with various other inside fastenings which, if properly used, rendered it impossible for any person to enter the car from the platform without the permission of the baggage-man, and a rule of the company required all baggage-men to keep the doors thus fastened while the train was in motion, but there is some evidence tending to" show that this rule was ¡not at all times rigorously enforced. After Watt and Schwartz were assigned their positions and before the train left Chicago, they were seen together in the baggage car in private conversation. The next seen of Watt, so far as the evidence discloses, was at Joliet, where he was observed passing from one of the baggage cars to the other. After the train left Joliet Schwartz made repeated inquiries of the conductor, and took unusual pains to ascertain, whether any passengers were to be let off at Minooka, a station midway between Joliet and Morris, at which the train was not accustomed to stop. As the train reached Morris the conductor alighted, and was immediately hailed by Watt who was then standing near car 34 and appeared greatly excited and frightened, and was told by him that somebody had been in the car and that the safe had been opened and the papers scattered over the floor. As the conductor sought to enter the car Watt exclaimed against his doing so. He went in however followed by both Watt and Schwartz and after noticing the condition of things there, he asked Watt where the messenger was, to which the latter replied that he did not know as he had not seen him since leaving Joliet. The doors opening on to the platform between the two cars were shut. The conductor passed into car 18, opening the door of that car with his key, and found a pool' of blood near the door, and the body of Nichols lying on the floor near the opposite end of the car. Hanging up in its usual place was found the poker belonging to the car, consisting of an iron rod about one-half inch thick and about three feet in length, and having on one end of it blood and small pieces of bone. Traces of blood were found in various parts of the car, and a line of blood drops led from the pool of blood to the place where the body was found lying.

Watt, according to his own admission, was in car 34 at the time the safe was robbed. The account of the affair given by him to the conductor at the time and to others subsequently was, in substance, that, about five minutes after the train whistled for Minooka, as he was sitting on a trunk on the north side, and towards the east end of the ear facing eastwardly, and while he was there engaged in making out his trip report, he heard a slight noise of a foot-step behind him, and turning partly around, he saw a revolver over his shoulder and heard a voice which said, “If you open your mouth I will kill you.” Just at that instant two of the transoms in the roof of the car, on the side opposite to the one where he was sitting were broken and a hand holding a revolver was thrust through, and the man behind him, pointing to the hand, said, “The man on top of this car will watch you;” or, “That man has got the drop on you.” As he partly turned around he caught a glimpse ■ of the man behind him, and saw that he had something over ' his face. He then heard behind him the sound of the tearing of papers, and soon after the man came towards him and warned him not to move until the train stopped at Morris. He sat still until the train slowed up for Morris and then glanced up and saw that the hand at the transom had disappeared and that the man in the car was gone, but he did not hear him come in or go out, and could not tell when he left. This account of the affair, with some variations in minor particulars, was repeated by Watt to various parties and was adhered to by him down to the time of the trial.

When the train left Morris Schwartz took Nichols’ place ' and performed his duties from there to Davenport. After-arriving at Davenport he manifested a strong desire to return to Chicago as quickly as possible, and without waiting for the return trip of his own train, he took passage by one leaving earlier, and there volunteered to take the place and perform the duties of one of the brakemen, and insisted that such brakeman should retire to bed, which he did. On the way to Chicago the conductor discovered in the closet of the passenger-coach in which Schwartz was principally employed, the fragments of a cheap new satchel which some one had evidently been trying to secrete and destroy; and lying on the floor among the fragments was found a small piece of paper which proved to be a part of one of the cancelled vouchers which were in the express safe at the time of the robbery.

The most important evidence against both Schwartz and Watt, however, is to be derived from them subsequent conduct and statements. Schwartz, very soon after the robbery, changed his mode and style of living and indulged in extravagant expenditures which were wholly out of keeping with his honest resources and visible means of acquiring money. As a part of his expenditures he is shown to have paid out to various parties a considerable number of $50 bills. These facts, together with various statements and admissions made by him in conversations with different witnesses, but which we need not here rehearse in detail, show conclusively that shortly after the robbery, he was in possession of a very large sum of money, made up of $50 and $100 bills, and also prove beyond a reasonable doubt that said money was the identical money stolen from the express company.

The evidence shows that from the date of the robbery down to the time of the trial the intimacy between Schwartz and Watt was close and their private interviews frequent. Watt seems not only to have been aware of Schwartz’s possession of said money, but to have aided him in secreting it. A marked alteration is shown to have taken place in the circumstances and ideas of both. They began to speak of new employments which would require the investment of considerable sums of money, and to express contempt for the salaries they were receiving from the railway company, and both, by way of seeking to give color and plausibility to their altered circumstances, claimed to have received, or to be in expectation of receiving in the near future considerable sums of money, Schwartz from his father and Watt from his father-in-law. In one conversation Watt cautioned Schwartz not to talk so much, as that was the reason' they were getting into trouble. At another time, as Schwartz was about to go to Philadelphia, a conversation between them was overheard in which Watt said, “Harry, now I want you to be more careful with yourself when you go east, and see who you come in contact with.” Schwartz replied: “My God, Newt., I thought you knew me better than that. Why, I would not tell even my own wife.” Watt then said: “Tomwant to be very careful;” to which Schwartz again replied: “Tes, I heard on the train the other day that the detectives were still after us; that Pinkerton had taken all his men off, but that the railroad company had hired new men.” Watt again said: “Be very careful whom you run in contact with, as they might have a man in the east when you get to Philadelphia. Tou know, Harry, people are getting curious; you are spending so much money on $45 a month.” Schwartz replied: “Oh! that’s all right. I know how to take care of myself. They can’t trump up no, charge against me. Newt., I wish you were better fixed than you are.” To this Watt replied: “That’s all right. I can make that work through the old man.” In another private conversation which was overheard by a witness, Schwartz remarked: “Tou seem to want to shove all the suspicion on me.” Watt replied: “Tou are safe; your father is rich and you can easily account for the money.” Schwartz then asked: “Why didn’t you bring me two $50 bills in place of this $100 bill?” and Watt replied: “It was dark when I got it and I took the first one I came to.” It is proved by Schwartz’s admission that he at one time concealed $2000 in his house under the carpet. Watt being told that an officer had been searching Schwartz’s house, inquired whether he had looked under the carpet.

Another conversation took place between Watt, Schwartz «.rid witness Pinkerton in the county jail at Morris, in relation to a package of money containing $3000 in $50 and $100 bills which Schwartz claimed to have put into Watt’s possession. In that conversation Schwartz said to Watt: “Why Newt., every time you came to the jail in Chicago I used to ask you if you had that parcel all safe, and you said, ‘Tes, it is perfectly safe.’ I asked you that repeatedly in the county jail. Now tell me what became of it.” Pinkerton then said: “I know what became of it. I know the very day you removed it from your house. You had that parcel in your possession until the afternoon of the 11th of December, and then you took it out of your house. Where you took it to I do not know.” Schwartz then said to Watt: “There, Newt., now you see he knows a great deal. I never told him that. You see he knows a great deal more than we have given him credit for. He has told me things that I did not know that anybody knew.” Watt replied, “Harry, I can’t give you that parcel.” Schwartz said: “Why can’t you give it to him ?” Watt replied: “I can’t because I can’t.” Pinkerton then said to Watt: “You had it; what did you do with it?” Watt replied: “I hain’t got it now, and I can’t give it to you if you were to hang me for it. I hain’t got it now.” Pinkerton asked: “Where is it?” Watt answered: “I hain’t got nothing to say about it.” Pinkerton then said: “You had that parcel in your possession. If you have got rid of it in any way or burned it up or destroyed it, tell me about it.” Watt replied: “I can not tell you any more than that. I hain’t got it now and I can not give it to you if you were to kill me for it.” Pinkerton then suggested: “Probably you people will come to a better understanding if you are left alone awhile.” Schwartz replied: “Yes, let me see Watt alone.” Pinkerton then left, and when he returned, Schwartz said: “I can not do anything more about it. Newt., tell him about it.” Watt said: “What is the good of me telling him ? He would not believe me, Harry, if I told him.” Pinkerton remarked: “No, if you tell me that you stuffed $3000 of $50 and $100 bills into the fire, there is no need of your telling me that. I tell you candidly that I would not believe you.” Watt replied: “Well, I hain’t got it and can’t get it, and there is no use of talking any more about it. I could not give it to you if you hung me for’ it. That ends it. I have nothing more to say.” Pinkerton admits that Watt, in terms, denied that he had ever had in his possession the package of money about which they were talking; and another witness who was present testifies that he made such denial repeatedly, and also that he several times admitted that he had had the package in his possession.

The foregoing are but a portion of the more important and significant circumstances appearing in evidence bearing upon the question of Watt’s guilt of the crime charged. A considerable effort was made to impeach the veracity of some of the witnesses by whom the conversations above detailed were proved. On that subject we have only to say, that questions pertaining to the veracity of witnesses and the credibility of their testimony are ordinarily questions of fact for the jury. They see the witnesses themselves and hear them testify and have an opportunity to observe their appearance and demeanor on the stand, and are therefore best qualified to judge of the weight to be. given to impeaching or corroborative evidence, and their decision of that question will not be disturbed by an appellate court except in rare and unusual circumstances.

It can not be doubted that the evidence in the case, when all the facts proved are duly considered, tends very strongly to prove the guilt of both the defendants. They had access to the cars in which both the murder and the robbery were committed, and therefore had the opportunity to commit those crimes. No other parties upon whom suspicion can possibly rest were seen by any witness in or about said cars, and it is difficult to conceive how, under the circumstances proved, any other parties could have gained access to the cars, committed the murder and robbery and escaped unnoticed. Watt was in the car in which the robbery was committed and the account he gives of the transaction abounds in so many improbabilities that the jury were justified in treating it as a mere fiction. Even if it were possible for one of two robbers to maintain his foothold on the roof of a car moving at the rate of forty or fifty miles an hour so as to co-operate at all with Ms confederate inside the car, it seems incredible that such position should be deliberately selected, for the reason that such co-operation would manifestly be to the last degree uncertain and precarious. It is also difficult to see how the door of Watt’s car could have been opened so as to admit of an intruder without at once attracting his attention. The greatly increased volume of noise from the engine and train which would have thus been admitted would have been instantly apparent. Nor was Watt’s own conduct, as described by him, consistent with what might reasonably he expected of any ordinary man under like circumstances. It is certainly very extraordinary that the hand thrust through the transom and the man in the car should both disappear without his knowing when or how.

The murder was committed for purposes of plunder, and Schwartz’s subsequent conduct, and especially the discoveries made during his return to Chicago the following night, render it extremely probable that he took charge of and carried away the money. These facts, coupled with proof of the subsequent unexplained possession by the defendants of large sums of money of the same denominations and description, and which may fairly he assumed to be portions of the stolen money, warranted .the jury in finding them both guilty.

A certain portion of the testimony of witness Withrow was objected to by the counsel for the defendants and its admission is assigned for error. The witness testified to two conversations with Watt, in the first of which Watt detailed at length his version of the circumstances attending the robbery of the express safe. In the second conversation, as testified to by the witness, the former one was referred to, and the opinion expressed by him that he, Watt, had not disclosed all he knew about the transaction, but was keeping some part of it back through fear of injury or otherwise. The witness testifies that he thereupon urged him to make a clean breast of the whole matter as soon as he could; that Watt protested that he had told all he knew; that the witness then said to him: “Mr. Watt, I have talked with a great many railroad men in regard to your version of this occurrence,—your riding in a car next to the tender, or with but one car between you and the tender, and a man coming in at the door of the car next to the engine, and you were sitting there with no one in the car but yourself, everything as quiet as could be, and in a tight railroad car. You say that some one opened the door and got to you and you heard no increased volume of sound in your car to attract your attention. There is nobody who believes that, and there must be some motive that you have for telling that.” The foregoing statement being objected to and the objection overruled, the witness testifies that Watt answered: “Well I can’t help it; it is true.”

We can see no tenable ground of objection to this evidence. It consists of a statement made by the witness in the presence of and to the defendant, and to which he had an opportunity to and did reply. Declarations or statements made in the-presence of a party are received in evidence, not as evidence in themselves, but to understand what reply the party to be affected should make to them. Even if he makes no reply, the statement is still admissible upon the principle that, if a party is silent when he ought to have denied, the presumption of acquiescence arises. Gibney v. Marchay, 34 N. Y. 302. The same rule applies in criminal cases. As said in Best on Presumptions, sec. 241, “A statement is made either to a man or within his hearing, that he is concerned in the commission of a given crime, to which he returns no reply; the natural inference is that the imputation is well founded or he would have repelled it. Silence is tantamount to confession.” State v. Cleaves, 59 Maine, 298; State v. Reed, 62 id. 129; 2 Wharton on Evidence, sec. 1136.

The case of Devine v. The People, 100 Ill. 290, cited by the counsel for the defendant has no application. There it was held to be error to permit a police captain to testify that, on the night of the homicide, he saw another person and learned from him what he knew about the prisoner and another, and that he and the police formed a theory that the prisoner and such other person committed the homicide.

Complaint is made of the admission of the evidence of two witnesses who were shown some hair found in Nichols’ hands after his death and also a lock of hair cut from his head at the undertaker’s, and who were permitted to testify that the two specimens of hair exactly resembled each other. The hair of both the defendants is dark and almost black, while that found in Nichols’ hands was light brown in color, and there is therefore no pretense or claim by either party that said hair came from either of their heads. While we are of the opinion that the evidence was incompetent, it being no case for expert testimony, we are unable to see how any material prejudice can have resulted to the defendants from its admission. It was not offered as inculpatory evidence and could not have had that effect, as it had no tendency to prove that either of the defendants committed the homicide. Nor are we able to perceive how it could have had any material tendency to rebut any exculpatory theory which the defendants could legitimately base upon any evidence in the case. No other person is brought forward or identified as the supposed perpetrator of the homicide, and no theory is raised by the evidence as to any person other than Nichols himself to whom the hair found in his hands could have belonged. That there was a strong resemblance between it and Nichols’ hair does not seem to be disputed, and whether the jury found its identity upon their own inspection or upon the testimony of the experts, does not, in view of the facts in this case, seem to be at all material.

The case is very different from that of Knoll v. The State, 55 Wis. 249, cited by counsel. There the prisoner was charged with murder, and the evidence tended to show that after the commission of the homicide he carried the body of the deceased on a wheelbarrow and concealed it in a swamp. Hairs were found on his wheelbarrow which resembled hair taken from the head of the deceased, and an expert was permitted to testify that they both belonged to the same person. The admission of this testimony, in view of its important inculpatory bearing, was held to be an error sufficiently grave to necessitate a reversal of the judgment.

Exception was taken by the defendants to the following instruction given to the jury at the instance of the prosecution:

“The court further instructs the jury, as a matter of law, that the doubt under the influence of which the jury should frame a verdict of not guilty must always be a reasonable one. A doubt produced merely by undue sensibility in the mind of any juror in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible states of facts differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered.”

An instruction of which the foregoing is an exact copy was approved by this court in Spies et al. v. The People, 122 Ill. 1. We see no reason for departing from the doctrine laid down in that case, and are therefore disposed to hold that the propositions of law announced in said instruction are correct. »

Several of the other instructions given by the court to the jury at the instance of the prosecution are subjected to more or less criticism by the counsel for the defense. Without protracting this opinion to the extent which would be necessary to a proper discussion of said criticisms in detail, we only deem it necessary to say, that we have given them careful consideration and are of the opinion that none of them are well taken.

A number of objections were raised at the trial to remarks of counsel employed to assist the State’s attorney, in his closing address to the jury. Some of the remarks objected to are perhaps justly subject to censure, but we are unable to say that, in view of the evidence and all the circumstances attending the trial, they constitute such grave departures from the proper line of argument open to counsel as to necessitate a reversal of the judgment. The only remark of counsel in respect to which we have been inclined to hesitate is the one in which allusion was made to the law permitting defendants to , testify in their own behalf. While discussing the subject of convictions on circumstantial evidence, the counsel said: “My associates who preceded me spoke of circumstantial evidence. They told you and truthfully too, that mis-convictions and mis-trials on circumstantial evidence occurred almost entirely in the dark ages when prisoners were not allowed counsel in open court; when prisoners could not testify on their own behalf.” Objection being interposed, the court stated in the hearing of the jury that the remark should not have been made. It appears, however, that one of the counsel for the defendants, in his argument, had already stated to the jury that defendant Schwartz had contradicted witness Withrow as to the circumstances under which his statements to said witness were made. This remark was made, as counsel assume, but as the record does not seem to show, in reference to certain testimony given by Schwartz at a time when the jury had been allowed to retire and during the investigation by the court in their absence of some question as to the admissibility of the testimony of said witness.

The statute which removes the disqualification of a defendant in a criminal case to testify in his own behalf provides that, “his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” 1 Starr & Curtis’ Stat. 486. It is no doubt the duty of the circuit court in all criminal trials, when the defendant does not testify in his own behalf, to see to it that the mandate of the statute is strictly enforced. Indirect and covert references to the neglect of the defendant to go upon the witness stand may he as prejudicial to his rights as a direct comment upon such neglect. But it does not necessarily follow that every reference to the law on that subject is prohibited. The true test would seem to be, was the reference intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify ? In the present case we may fairly assume that such was not the intention of counsel. He was engaged in discussing in apparent good faith an entirely different proposition, and his incidental reference to the legal right of a defendant to testify in his own behalf was obviously made only by way of illustrating that topic. Nor are we able to see that the remark, in the connection in which it was made, was calculated to direct the attention of the jury to the defendants’ neglect to testify. Such neglect was not spoken of, and the reference to their right to testify was in a discussion in which the attention of the jury was being directed to an entirely different topic. But if the allusion to the defendants’ legal right to testify was otherwise improper, it is difficult to see how it could have prejudiced the defendants after the statement by their own counsel to the jury that one of them had in fact exercised that right.

We are of the opinion that the record contains no material error, and the judgment will therefore be affirmed.

Judgment affirmed.

Separate opinion by Mr. Justice Scholeield :

I concur in affirming this judgment, but I dissent from that part of the opinion of Mr. Justice Bailey which assumes to give construction to section 9, article 2, of our present State constitution. I do not agree that the words, “jury of the county or district in which the offense is alleged to have been committed,” as used in that”article, were intended to, or that, when properly construed, they do, convey a different legal meaning, in the respect pertinent in this case, than that conveyed by the words, “jury of the county or district wherein the offense shall have been committed,” as used in section 9, article 13, of the constitution of 1848.

It is assumed (and rightfully,) that “alleged” means as charged or stated in the indictment or information. It will be observed that while this clause describes the place or locality whence the jury are to come, it goes no farther. It makes no specific provision for cases where the crime is, in fact, committed in one county, but is¿ incorrectly, alleged to have been committed in a different county. It prescribes no rule of evidence, and it does not assume to authorize judgment to be rendered in favor of an allegation which is contrary to the fact proved upon the tidal.

The constitution provides, (sec. 8, art. 2): “No person shall be held to answer for a criminal offense, unless on an indictment of a grand jury.” But it nowhere undertakes to define what is meant by this language. That we learn by resorting to the common law. There we are informed that “the grand jury are sworn to inquire only for the body of the county, pro corpora coviitatus, and therefore they can not regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by act of Parliament.” 4 Blackstone’s Com. (Sharswood’s ed.) 302, *303. There were on our statute book, when the present constitution was adopted, it is true, provisions, “that where an offense shall be committed on a county, line, the trial may be in either county divided by such line,” and that “where any offense shall be committed against the person of another, and the person committing the offense shall be in one county, and the person receiving the injury shall be in another county, the trial may be had in either of said counties.” And, by necessary implication, it must follow that the grand jury of each of such counties has jurisdiction to indict for the offense. But these provisions are palpably framed upon the theory, that in such eases the offense is actually committed in both counties,—that there are ' material criminal acts committed in each county, sufficient, of themselves, to constitute the offense; and they can therefore have no pertinency to the present question.

We are also informed by the common law, that the facts constituting the crime presented must be alleged, in the indictment, as having been committed where they were actually committed. 1 Chitty on Crim. Law, 195; 1 Wharton on Crim. Law, (7th ed.) 277; 1 Bishop on Crim. Proc. sec. 104. See, also, Gross’ Stat. 1869, p. 199, sec. 1. And if the proof fails to sustain the allegation in this respect, the verdict must be for the defendant. 1 Bishop on Crim. Proc. 107; 1 Wharton on Crim. Law, (7th ed.) 601. “The county where the offense is alleged to have been committed,” must therefore be the county where the offense is actually committed. There is no authority to allege any other county than that in which the offense was actually committed, and so, in legal contemplation, the words employed in the present constitution, and those employed in that of 1848, in this respect, intend the same thing.

Undoubtedly, under the provision of the present constitution a party indicted by a grand jury of that county for an offense as having been committed within a designated county, is entitled to be tried, under that indictment, by a petit jury of that county. But the county where the offense was committed being of the substance of the offense charged in the indictment, if the proof fails to show an offense committed within the county, as alleged, the offense charged in the indictment is not proved; and this clause of the constitution does not assume to confer authority upon the jury to then, notwithstanding this failure of proof, convict the defendant of an offense similar in kind to that charged in the indictment, but committed in a different county from that alleged; or, stated in different language, while this clause confers upon the defendant the right to be tried by a jury of the county where the offense is alleged to have been committed, it confers no authority upon that jury to convict him of an offense actually committed, and sufficiently so proved upon the trial, in a county different from that alleged. Moreover, it appears, not only from the language, but likewise from the connection in which it occurs, that the purpose here was to protect the individual against oppression—against being taken for an offense committed in one county, and transported to a remote county, and there forced to be tried, thus imposing upon him heavy expenses to procure the attendance of witnesses, etc., and denying him the presence of friends. But under the construction adopted in Mr. Justice Bailey’s opinion, what guaranty has the citizen in Alexander county that he will not be indicted and transported to Jo Daviess county, and there forced to trial for an offense actually committed in Alexander county ? If a grand jury of Jo Daviess county were ignorant or malicious, or corrupt enough to allege in an indictment that an offense proved to have been actually committed in Alexander county was committed in Jo Daviess county, the defendant would seem, under that opinion, to be without remedy. But, in that view, why was this provision adopted ? A personal right for the protection of the individual against oppression can not rest in an arbitrary and irresponsible discretion of a grand jury. The one is utterly repugnant and irreconcilable with the other.

Assuming that I am right in the views just expressed, I am nevertheless of opinion that section 402, of division 10, of the Criminal Code, (Rev. Stat. 1874, p. 407,) may still be sustained as a constitutional and valid enactment. The right guaranteed to the defendant is that of trial by an impartial jury of the county. Whether the burthen of showing that he has not been deprived of that right shall rest upon the People, wholly or only in part, or whether the burthen shall rest upon him to show that he has been deprived of that right, are questions with which the constitution does not deal. Having guaranteed the right, it leaves all questions of detail as to the mode of ascertaining when it shall have been violated, to the legislature, and manifestly, therefore, the question of where the burthen of proof, in this respect, shall in the first instance rest, is purely one of legislative policy. See Cooley’s Const. Lim. (1st ed.) 288. Under this section, if it can “readily be determined in what county the offense was committed,” the offense must be charged to have been committed and the offender be tried in that county, for this is the plain and obvious meaning of the language employed; but “if it can not readily be determined in what county the offense was committed, the offense may be charged to have been committed and the offender tried in any of the counties through or along or into which such railroad car or water-craft may pass or come, or can reasonably be determined to have been on or near, the day when the offense was committed.” Since, therefore, it is competent for the General Assembly to say, in the first instance, every offense shall be presumed to have been committed in the county alleged in the indictment, unless the defendant shall prove otherwise, it is unquestionably competent for it to say, as is, in effect, here said, that proof showing “that it can not readily be determined in which county the offense was committed,” shall be sufficient evidence that it was committed in the county alleged. The burden is "here, by the well settled rules of pleading and evidence, upon the State, in default of specific proof of the venue of the alleged offense, to prove “that it can not readily be determined in what county the offense was committed,” and “that which the People are required to prove, the defendant is at liberty to disprove.” And so, if he is, by the trial, being denied his constitutional right of trial by a jury of the vicinage, he can establish that fact by proving the actual venue of the offense, and thus enable the State to proceed against him anew in the proper county, where he will have that right. This right is a purely personal right, which the defendant is at liberty to waive if he shall choose to do so, and so long as, by change of statute, he is not denied the opportunity to assert it, he has no right to complain.

The evidence here clearly makes the prima facie ease, upon behalf of the People, contemplated by the statute. The defendant had the opportunity to disprove that case, hut failed to do so. It is therefore to he assumed the offense was actually committed in the county alleged, and where the defendant was indicted and tried and convicted.


source: Caselaw Access Project

author: Mr. Justice Shore

license: Public Domain

text:
    Peter D. Richardson v. Mary J. Eveland et al.

      Filed at Springfield September 27, 1888.

    1. "Wnms—devise subject to a charge—to whom the surplus or residue inures. If there be a grant or devise of the beneficial interest in lands, charged with the payment of debts or legacies, and not upon express trust to pay the same, the grantee or devisee is entitled to the surplus remaining after satisfaction of the debts and legacies charged, and if the charge fails, the advantage accruing from such failure will inure to his benefit.
    2. Same—of an 'ademption of a legacy—substitution of subsequent gift—evidence—presumption. In determining whether an ademption of a legacy has taken place, it is important to observe whether the donor stands in the place of a parent, or as a stranger, to the donee, and also whether there are words accompanying the subsequent gift sufficiently express to show an intention on the part of the donor that the latter benefit shall be in substitution of the former.
    3. In case the legacy is to a stranger, the intention of the testator to satisfy it by a subsequent gift (unless the legacy and gift be given for the same specific purpose,) must be expressed; but if the relation of the donor be that of parent, the presumption at once arises that the subsequent gift, if ejusdem generis, was intended to be in satisfaction of the prior legacy.
    4. If a legacy is given by a parent, or one standing in loco parentisr and the testator afterward makes an advancement or gift of money or property ejusdem generis, to the same beneficiary, the presumption will arise that the gift was intended in satisfaction of or substitution for the prior legacy; and unless this presumption be rebutted, the ademption, in full, or pro tcrnto, as the gift is equal to or less than the prior benefit, will take place.
    5. But this equitable rule resting upon a presumption of the intention of the donor, extrinsic evidence is admissible to aid or rebut the presumption. Such evidence will relate only to the subsequent gift from which the ademption is claimed. The provisions of the will itself can not be varied or explained by parol evidence, although, when the intention of the testator is not clear, extrinsic evidence is often received to enable the court to read the will from the same standpoint of the testator.
    6. Where a gift to a legatee is unaccompanied by any written instrument, the declarations and conduct of the testator in respect of the subject matter, and in breaking in upon the portions as fixed by his will, from which an inference of his intention in making the gift can be logically drawn, are competent to be considered, whether contemporaneous with or prior or subsequent to the gift.
    7. Where a testator devised certain of his lands to his son, subject to a charge of $5000 to be paid to his daughters, and the testator afterward sold a part of the lands devised to the son and used the proceeds in making a gift to the daughters, this maybe considered, on the question of his intention in making such gift, as whether he intended the gift in satisfaction of the charge in favor of his daughters.
    8. In this case, a testator owning between four and five hundred acres of land, devised to his son one hundred and ninety acres thereof, subject to the payment of the sum of $5000 to the testator’s seven daughters, and then devised the sum so charged) with the residue of his estate, real and personal, to the daughters. Afterward, the testator conveyed a part of the same and other lands to the son, a part of which was stated in the deed to be subject to the charges and conditions named in the will, and still later, sold to a third party one of the tracts devised to the son, for $5600, and he then gave to each of his daughters $2500 and to the son $10, unaccompanied with any declaration or statement of his intent in so doing: Held, that the payment to the daughters was not to be taken as an ademption or satisfaction of the legacy of $5000 to the daughters, and that the son was bound to pay that sum to his sisters.
    9. Ohanoeet—practice—incompetent evidence. A reversal of a decree in a chancery suit will not be_had because incompetent evidence may have been heard, if there is in the record sufficient competent evidence to sustain the decree. It will, in such case, be presumed that the chancellor considered only such evidence as was proper.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. Brown & Kirby, for the appellant:
    The gift of Mr. Richardson of $2500 to each of his daughters, on April 13, 1882, operated as an ademption of the special bequest in his will. 1 Pomeroy’s Eq. Jur. secs. 524, 553, 557; Story’s Eq. Jur. sees. 1109, 1111.
    The codicil to the will does not re-establish particular bequests which have been adeemed. 1 Pomeroy’s Eq. Jur. sec. 561; Powys v. Mansfield, 3 M. & C. 359; Payne v. Parsons, 4 Pick. 413; Landon v. Astor’s Exr. 16 N. Y. 9.
    Messrs. Morrison & Whitlock, for the appellees:
    Ademption of a legacy is a matter of intention. 1 Roper on Legacies, 365; 2 Story’s Eq. Jur. sec. 114, note 1; Powys v. Mansfield, 3 M. & C. 359; Langdon v. Astor’s Exr. 16 N. Y. 9.
   Mr. Justice Shore

delivered the opinion of the Court:

It is contended hy appellant that the gift or advancement made by the testator, of $2500 to each of his daughters, on the occasion of the family reunion in celebration of his sixty-eighth birthday, was an ademption of the devise of $5000 to said daughters, jointly, made hy the will a charge upon the land devised to appellant, to be paid by him to said daughters within one year after the testator’s death.

At the date of the will (August 5,1875,) the testator owned between four and five hundred acres of land, and a considerable personal estate. The devise to his son (appellant) was of real estate only, and was described in the will as the “home farm, consisting of one hundred and ninety-eight acres,” and being “thirty-eight acres off of the south end of the east half of the S. E. Qr. of section 28; the east half of the N. E. Qr. of sec. 33; and the west half of the N. E. Qr. of see. 34, all in township 15 N., R. 11, W. of the third principal meridian.” The devise was subject to the following charge, viz: An annuity of $500 to be paid by the son to the widow of the testator during her life, and the payment of $5000 by the devisee (the son) to the daughters of the testator within one year after the testator’s decease. The $5000 so charged in the devise to the son, together with the residue of the testator’s estate, real and personal, was specifically devised to the seven daughters of the testator, and their descendants, in equal portions.

The devise of the testator’s estate was to his children, and because of the relation in which they stood, there being an imperfect natural obligation resting upon the father to provide for his offspring, the share of each child, as fixed by the will, is denominated a child’s portion. The portion of the son, as thus determined, was the one hundred and ninety-eighty acres of land described, subject to the payment of the charge thereon. And the one-seventh of all the residue of the testator’s estate, real and personal, augmented by the sum of $5000 charged on the devise to the son, constituted the portion of each daughter.

As will be observed, the tracts of land devised to the son are not contiguous, the eighty acres on section 34 being a half mile east of the tract on section 33, and separated therefrom by the north-west quarter of section 34, also owned by the testator. It is suggested that a mistake was made in the will, and that the west half of the north-west quarter of section 34 was intended, instead of the west half of the north-east quarter of section 34, and that the conveyance of that eighty acre tract, April 7,1879, was intended to correct such mistake. There is here no latent ambiguity. Either tract, with the' other lands devised, would make one hundred and ninety-eight acres, and was part of the home farm of the testator. This fact is therefore of no significance, except so far as it tends to illustrate the subsequent transactions. However, on the 7th of April, 1879, the testator, for the expressed consideration of $9920, conveyed to his son said west half of said northwest quarter of said section 34, and also forty-three rods and eleven links off of the west side of the east half of the same quarter section, and seventy-six rods off of the south end of the east half of the south-east quarter of said section 28, the last mentioned tract being one of the pieces of land devised to the son.

On the 8th of March, 1882, the testator, apparently having determined to administer upon his estate himself, so far as it consisted of real estate, conveyed all his land. To his son, for the expressed consideration of $12,400, he conveyed, by deed of general warranty, the east half of the north-east quarter of section 33, (being one of the tracts devised to the son,) and seventy-six rods off of the south end of the west-half of the south-east quarter of said section 28, (excepting family grave-yard,) which deed contains the following express stipulation : “All the foregoing described premises being subject to the condition and charges upon the premises, as specified in the last will and testament-of said William Richardson,—said will dated August 5, 1875.” There then follows other lands • conveyed, not, however, subject to such charge. On the same day the testator sold and conveyed the residue of his lands to one Lazenby, including the said west-half of the north-east quarter of section 34, appearing by the will to be devised to the son. It is apparent that all of said land conveyed to the son was a gift by his father, except, perhaps, the forty-three acres off of the west side of the east half of the north-west quarter of section 34, which the son is shown to have claimed that he paid for.

On the 13th of April, 1882, a month and five days after the several conveyances, on the occasion before referred to, the testator gave to each of his daughters $2500, and to his son $10, using in making such gift, in part, the proceeds of the land sold to Lazenby, among which, as we have seen, was eighty acres (the west half of the north-east quarter of section 34,) devised to appellant. These gifts were made by placing the amounts in an envelope, and handing the same to the several beneficiaries, and were unaccompanied by any statement, oral or written, expressive of the intent of the donor in making the same.

It is insisted that hy the sale to Lazenby, and the use of the proceeds of the eighty-acre tract last mentioned, real estate of the value of more than $5000 “was taken from the devise to Peter, (appellant,) and its identical proceeds were handed over to the daughters” by the testator, and that it must be presumed that the legacy of $5000 charged on the land of appellant was intended to be satisfied.

The deed to appellant of March 8, 1882, adopts and recognizes the will of the grantor as determining the charge and condition upon which the conveyance of the two tracts first named therein was made, and appellant, having acquired title thereunder, took the title subject to the charge. By reference to the will, it is seen that part of this charge and condition was the payment by appellant of the legacy of $5000 to the daughters, within one year after the testator’s death. No extended discussion of the contention of appellees’ counsel, that the sum charged upon the land must, in any event, be paid by appellant, and if adeemed, would go to swell the residuum of the estate, is required, as the cause must at last, on other grounds, be determined in their favor. But it may be said, the will remaining ambulatory, a subsequent gift or advancement by the testator to the legatees, with the intention that it should be in lieu and discharge of the legacy, would be an ademption thereof, and in such case the particular legacy adeemed would, as it is said, be removed or taken away by the act of the testator, (1 Pomeroy’s Eq. 554,) and the testamentary gift, having been anticipated and discharged, would stand in the will as a satisfied legacy, forming no part of the will to be carried into execution. Here, this particular provision for the daughters was, by the will, raised out of and made a charge upon the land, and it is manifest that upon ademption thereof the charge would be gone. Moreover, the gift by the father to the son was of the beneficial interest in these lands, subject to the legacy of $5000 to the daughters, and while he took the land cum onere, the doctrine is, that if there be a grant or devise of the beneficial interest in lands charged with the payment of debts or legacies, and not upon express trust to pay the same, the grantee or devisee is entitled to the surplus remaining after discharging the debts and legacies charged, and if the charge fails, the advantage accruing from such failure will inure to his benefit. 1 Boper on Legacies, chap. 9, secs. 1, 12,—sec. 1, and cases cited.

In determining whether an ademption has taken place, or the doctrine applicable, it is always important to observe whether the donor stands in the place of a parent, or as a stranger to the donee, and also if there are words accompanying the subsequent gift sufficiently express to show an intention on the part of the donor that the latter benefit should be in substitution of the former. In case the legacy is to a stranger, the intention of the testator to satisfy the legacy by a subsequent gift,—unless the legacy and gift be given for the same specific purpose,—must be expressed. The question there arises upon construction of the express words of the donor, unaided by any presumption in "favor of the satisfaction of the prior legacy. If the relation of the donor be that of parent, the presumption at once arises that the subsequent gift, if ejusdem generis, was intended to be in satisfaction of the prior-legacy. The rule is based upon the equitable presumption that a parent, or one standing in loco parentis, and owing a like natural duty to all of his children, would not, after having voluntarily established the portion each should receive of his estate, take from one to his detriment, for the purpose of benefiting another. The natural obligation of the parent to provide for his offspring is an imperfect obligation, and the portion of each child remains wholly under the control of the testator, and may be changed at his pleasure. The rule is based upon the presumed intention of the testator, where he owes a like common obligation to all, not to give one of the objects of his bounty a double portion of his estate to the injury of the others. The rule was created by courts of equity on account of their leaning, as it is said, against double portions, and to facilitate the equitable distribution of estates. (Suisse v. Lowther, 2 Hare, 424; 1 Pomeroy’s Eq. 554; Roper on Legacies, swpra.) Hence, if a legacy be given by a parent, or one standing in loco parentis, and the testator afterwards makes an advancement, or gift, or money, or property ejusclem generis, to the same beneficiary, the presumption will arise that the gift was intended in satisfaction of or substitution for the prior legacy, and unless this presumption he rebutted, an ademption in full, or pro tanto, as the gift is equal to or less than the prior benefit, will take place. When the equitable presumption arises, and the rule applies, the ademption, in whole or in part, is complete by the act of 'the donor in conferring the two benefits, from which the intention of substitution is implied. But the rule resting upon a presumption of a fact,—that is, the intention of the testator or donor,—extrinsic evidence is admissible to aid or rebut the presumption. Mr. Pomeroy quotes approvingly Lord Romily, M. R., as saying in Cooper v. Cooper, L. R. 8 Ch. 813: “If the testator stands in loco parentis, the presumption of equity being against double portions, the presumption of satisfaction arises at once, and includes everything that the father gives which he intended to be in satisfaction of his previous promised benefits, and evidence is admissible for the purpose of rebutting or sustaining the presumption against double portions, which, in that case, is in favor of satisfaction.” It is manifest that such evidence will relate only to the subsequent gift by reason of which, it is alleged, the ademption has taken place. The provisions of the will can not be varied or explained by parol, although where the intention of the testator is not clear, extrinsic evidence is frequently admissible, to enable the. court to read the will from the standpoint of the testator. Wigram on Wills, (2d Am. ed.) 161. Where, as here, the gift is unaccompanied by any written instrument, the declarations and conduct of the testator in respect of the subject matter being considered, and in breaking in upon the portions as fixed by his will, from which an inference of his intention in making the gift can be logically and legitimately drawn, are competent to be considered, whether cotemporaneous with or prior or subsequent to the gift. (Richards v. Humphreys, 15 Pick. 133 ; Howz v. Mallet, 4 Jones’ Eq. 194; 1 Pomeroy’s Eq. 564.) In respect to the measure of proof required to rebut the presumption, it will be sufficient if it satisfactorily appear that the testator intended the legacy to be subsisting, or so considered it, notwithstanding the subsequent advance. 1 Roper, supra.

It was entirely proper for appellant to show, and for the court to consider, as tending to sustain the presumption of satisfaction, that a portion of the land devised to the son had been sold to Lazenby, and the proceeds thereof used by the testator in making the gift to the daughters, so far as it tended to illustrate the intention of the testator in making said advance. However, looking into the dealings of the testator in respect of his estate, and its distribution among his children, who alone are the objects of his bounty, it is seen that in lieu of the eighty-acre tract taken from the devise to the son, there had been taken from the devise to the daughters a much larger amount of land, both in quantity and value, which was given to the son. By the deed of April 7, the west half of the northwest quarter of section 34, and another tract devised to the daughters, of equal value, so far as we can see, with the tract sold to Lazenby out of the devise to the son, was given to the son. Thereby he was given a tract of equal value, though the value, perhaps, is not important, and permitted to enter into the enjoyment thereof without being postponed until the death of his father. It must be remembered that the fact to be ascertained, was the intention with which the gift to the daughters was made. The right of the donor to substitute one tract for another is not questioned. There can he no question that on the 8th of March, 1882, when the testator, as parts of the same transaction, conveyed the residue of the land devised to the son, and other tracts of land, to him, and conveyed the eighty-acre tract mentioned, with other lands, to Lazenhy, he intended the legacies to the daughters to continue a subsisting charge upon that portion of the land against which the bill in this ease seeks to enforce the same. In the most solemn manner, he expressly stipulated in his deed that the son should take the land subject to that charge. It is beyond controversy that he then had no intention that his conveyance of the land to Lazenhy should in any way affect the charge upon the land to the son. He had given, and was then giving, to the son, as a largess, substantially a hundred acres more land than he would have derived under the will; and it is not unreasonable, in view of the facts, that the charge in favor of the daughters should be retained. It is said that the particular tract originally included in the devise to the son was. worth over $5000, but it is equally apparent that the testator had taken from the devise to the daughters a much larger amount of land, and given it to the son. Nothing occurred in the month intervening between this transaction and the gift to the daughters, that would tend, in any degree, to show a change of intention on the part of the testator; and it is apparent that in the general plan adopted by the testator for the distribution of his estate by himself, he regarded the proceeds of the land sold to Lazenhy as belonging to the daughters, for which he had made ample provision and compensation by taking from their shares for the benefit of the son. That this .was so understood, seems apparent. When the will was opened, and it was found that there was a devise of the west half of the north-east quarter of section 34, to the son, he said, in substance, that it was a mistake,—that he had got all the land his father intended him to have. We think, giving full effect to the equitable presumption before considered, that the circumstances proved satisfactorily and effectually rebut the presumption of the intention of satisfaction, and that the $5000 legacy to the daughters remained and is a subsisting charge upon the land, and that the rule contended for has therefore no application.

Again, the rule sought to be invoked by appellant is based upon the presumption against double portions, and can not be invoked to create a double portion. It will not be presumed that the testator intended to give one of the objects of his bounty, where he owed a like obligation to all, a double portion. If, then, the application of the rule would produce the effect it is intended to prevent,—that is, diminish the proportion of the daughters and give the son a double portion,—the court will not apply it. As we have seen, the effect of the application of the rule in this case would be to give to the son of the testator the $5000 devised to the daughters, after he had received the full amount of the portion intended to be bestowed by the common donor. This would be a subversion of the rule, and lead to the result which its adoption was intended to prevent.

It is also objected that the court admitted incompetent evidence. Without pausing to discuss the relevancy or competency of all the evidence adduced and admitted, it is sufficient to say that a reversal will not be had because incompetent evidence may have been heard in chancery causes, -if there is in the record sufficient competent evidence to sustain the decree. The presumption is that the chancellor considered only such evidence as was proper under the issues.

The decree of the circuit court is, in our judgment, fully warranted, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Per Curiam

text:
    Alanson Reed v. The Ohio and Mississippi Railway Company.

      Filed at Mt.Vernon June 16, 1888.

    1. Eminent domain—power to be strictly pursued. The taking of private property by the exercise of the right of eminent domain is in derogation of common right, and the grant of power for its exercise must be strictly followed.
    2. Same—when the power may be exercised—parties unable to agree as to compensation. The right to condemn land for railway purposes is given by the statute only when the compensation to be paid for or in respect of the property sought or damaged can not be agreed upon by the parties interested, unless the owner is incapable of consenting, or his name and residence are unknown, or he be a non-resident of the State.
    3. Same—requisites of petition—to show an inability to agree. The averments in a petition to condemn land for a public use need not be in the language of the statute, but any allegation showing affirmatively that the petitioner has been unable to agree with the owner in respect of the compensation to be paid, will suffice.

      i. Where the petition fails to show an inability -to agree with the land owner as to the compensation to be paid, and it does not appear that any effort was made to purchase or agree on the compensation or price to be paid for the land sought to be taken, it will be insufficient to. give the court jurisdiction, or to entitle the petitioner to the right of condemnation.
    5. Same—burden of proof—to establish right—of the pleadings. In a proceeding to condemn land, by a railway company, for the purpose of taking materials therefrom, no other pleading is required than the petition. If, however, an answer is filed, it will neither enlarge nor restrict the burden cast by law upon the company to make such a case as clearly entitles it to take and appropriate the land sought.
    6. Same—measwre of compensation—as to the uses to which the land is adapted. On a proceeding to condemn land by a railway company, the defendant asked the court to instruct the jury that the compensation to be paid for the land taken was its value “for any purpose for which it was shown, by the evidence, to be available.” The words quoted were stricken out by the court, confining the value to the worth of the land “as land, as it is at this time, as shown by the evidence:” Seld, that the modification was improper.
    7. The present market value of the land sought to be taken furnishes the true basis for obtaining the compensation to be paid the owner, and this value is to be determined by the jury from the evidence, either as furnished by the testimony of witnesses, or by their personal inspection of the premises; and in so far as its adaptability to uses other than that to which it is applied enhances or fixes its present market value, such uses are proper to be considered by the jury.
    8. Master’s deed—on foreclosure—whether the deed is evidence that there was a proper decree. The statute (chap. 72, sec. 33,) makes the master’s deed, under a foreclosure of a mortgage, prima facie evidence that the provisions of the law relating to the sale have been complied with; but it is only in case of the loss or destruction of the record that such deed becomes prima facie evidence of the recovery and existence of the decree. Before a party can insist upon any rights under such deed, he must produce the decree of the court authorizing a sale and deed.
    Appeal from the County Court of Gallatin county; the Hon. B. D. Youngblood, Judge, presiding.
    Mr. Rufus Cope, for the appellant.
    Messrs. Hanna & Adams, for the appellee.
   Per Curiam

: This was a proceeding by appellee to condemn ten acres of land lying outside of its right of way, for the purpose of taking therefrom sand, rock, gravel and earth, for ballast, and to maintain its roadway. The petition, after averring the incorporation of petitioner, and that it has for ten years owned and operated, and is now operating, a line of railway through Gallatin county, avers that by an act of the legislature of Illinois, approved February 25, 1867, a charter was granted to the Illinois Southeastern Railway Company, by which it was authorized to build, construct, equip and maintain a railroad through Gallatin county, and for that purpose to condemn right of way, and in addition thereto, said railway company was authorized and empowered by its charter to condemn other land beside that required for right of way, for the purpose of procuring sand, gravel, stone and earth, and other material, for the purpose of constructing and maintaining said railroad; that under certain foreclosure proceedings against said Illinois Southeastern Railway Company, the petitioner, by purchase, became the owner of all the property, rights and franchises belonging to said railway, whereby petitioner became authorized and empowered to operate and maintain said railroad, with all the rights, powers and franchises delegated to said last named company by virtue of its charter and the laws of this State; that in order to procure rock, gravel, earth and sand, to properly ballast and maintain said railroad and improve the same, it is necessary to take and appropriate other land than that included in the right of way thereof, through Gallatin county. The land sought to be taken is then described, and it is averred that the company has in said county no suitable material for the purposes named, on its right of way. It is alleged that appellant, who is made defendant, is the owner of the land sought to be appropriated. The defendant (appellant) answered, denying each material allegation of the petition, except the ownership of the land sought to be appropriated. The case was submitted to a jury, who returned a verdict fixing the compensation to be paid the land owner, and the court entered the usual order thereon.

While, under the statute, no other pleading than the petition is required, it is manifest that the answer filed neither enlarged nor restricted the burthen cast by law upon the petitioner, to make such a case as clearly entitled it to take and appropriate the land sought to be taken. Smith, Jr. et al. v. Chicago and Western Indiana Railroad Co. 105 Ill. 511.

It is contended by appellee railway company, that under and by virtue of the deed of the master in chancery, made, as is alleged, in pursuance of a decree of foreclosure against the Hlinois Southeastern Railway Company, it succeeded to all the rights, -privileges and franchise of said last named company, and is, by the charter of said company, authorized to appropriate the land of appellant for the purposes shown. No discussion of this question is necessary, as no conveyance of the property and franchise of the Hlinois Southeastern Railway Company is shown in this record. The petitioner introduced, in evidence a mortgage made by said company, and a deed executed by the master in chancery of the Circuit Court of the United States for the Southern District of Illinois, purporting to be made in pursuance of a decree of foreclosure entered in said court, conveying the property and franchise of said corporation to one Bloodgood, and conveyances vesting whatever title Bloodgood derived by said master’s deed, in petitioner; but no proceeding or decree upon which said deed was based was produced.

By section 33, chapter 72, of the Revised Statutes, the master’s deed is made prima facie evidence that the provisions of the law relating to the sale have been complied with, and it is only in case of the loss or destruction of the record of the decree that such deed becomes prima facie evidence of the recovery and existence of the decree. If petitioner desired to insist upon any right acquired under that deed, it should have produced, a decree of the court authorizing a sale and deed. The deed is evidence of the regularity of the sale, but not of the prior proceedings authorizing it. Fischer v. Eslaman, 68 Ill. 78.

But, independently of these considerations, this proceeding is clearly erroneous. In all cases where private property may he taken for public uses, proceedings to condemn are authorized only when “the compensation to be paid for or in respect of the property sought to be appropriated or damaged * * * can not be agreed upon by the parties interested,” unless the owner is incapable of consenting, or his name and residence are unknown, or he be a non-resident of the State. Rev. Stat. (S. & C.) chap. 47, sec. 2, p. 1042.

If the right to condemn appellant’s land for the purposes here sought, be conceded, such proceedings are permitted by the statute, whether for the purpose of acquiring land or material, only in the event that the corporation seeking the appropriation is unable to agree with the owner for the purchase of the same. (Rev. Stat. chap. 114, secs. 18, 19, Starr & Curtis, p. 1912; Chicago, Burlington and Quincy Railroad Co. v. Chamberlain, 84 Ill. 333; Bowman v. Venice and Carondelet Railway Co. 102 id. 470.) Nor, if it be conceded that appellee railway company succeeded to all the rights and privileges of the Rlinois Southeastern Railway Company, under the charter, will it affect the question under consideration. By the fifth section of its charter that company was given the right to acquire and hold property for its corporate purposes, and it is provided that “in ease of disagreement as to the right of way, price of land or lands, or other privileges embraced in this section, the same may be condemned, ” etc., under the eminent domain laws in force. 2 Private Laws 1867, p. 751.

The taking of private property by the exercise of the right of eminent domain is in derogation of common right, and the grant of power for its exercise must be strictly followed. We have held in numerous cases, that the averments in petitions for condemnation need not be in the language of the statute, but that any allegation showing affirmatively that the corporation has become unable to agree with the land owner in respect of the compensation to be paid, will suffice. (Chicago, Burlington and Quincy Railroad Co. v. Chamberlain, 84 Ill. 333; Bowman v. Venice and Carondelet Railway Co. 102 id. 459.) But there is in the petition and proof in this case a total want of any reference to the jurisdictional fact of the inability of appellee railway company to agree with the land owner as to the compensation to be paid. There seems to have been no effort made to purchase the land, or agree on the compensation or price to be paid therefor, before resorting to this proceeding. The petition was clearly insufficient to give the court jurisdiction; or to entitle the appellee company to appropriate appellant’s land.

Numerous errors are pointed out in the rulings of the court in modifying the defendant’s instructions. Only one is of sufficient importance to require discussion.

The second instruction asked by defendant told the jury, in effect, that the compensation to be paid to the defendant land owner, for the land taken, was its value “for any purpose for which it was shown, by the evidence, to be available.” The modification consisted in striking out the words quoted, and confining the value to the worth of the land, “as. land, as it is at this time, as shown by the evidence.” The modification was improper. The present market value of the land taken furnishes the true basis for determining the compensation to be paid the land owner for land taken and appropriated to the public use. This value of the land is to be determined by the jury from the evidence, either as furnished by the testimony of witnesses, or by their personal inspection of the premises; and in so far as its adaptability to uses other than that to which it is applied enhances or fixes its present market value, such uses are competent to be considered by the jury. Haslam v. Galena and Southern Wisconsin Railroad Co. 64 Ill. 353; Chicago and Evanston Railroad Co. v. Jacobs, 110 id. 414; Dupuis et al. v. Chicago and Northwestern Railway Co. 115 id. 98; Calumet River Railway Co. v. Moore et al. 124 id. 329; Jacksonville and Southeastern Railway Co. v. Walsh, 106 id. 253.

The judgment of the county court is reversed, and the cause remanded to that court.

Judgment reversed.