text:
    Andrew Capek v. Annie Kropik et al.

      Filed at Ottawa June 15, 1889.

    1. Parent and child—step-children—duties and obligations of the step-father. A husband is not bound to accept into his family the children of his wife by a former husband, but if he does so voluntarily, so long as the relation is permitted to exist he assumes the duties and' obligations of a parent. A person in loco parentis means a person taking upon himself the duty of a father to make provision for the child.
    2. Same—earnings of step-children—rights of step-father. If a stepfather, after the death of his wife, does not stand in loco parentis to her minor children, their earnings, at least over and above the amount necessarily expended for their maintenance, if applied by him in discharge of an incumbrance on real estate which belonged to him and his wife at her death as tenants in common, will inure to the benefit of such children succeeding to their mother’s half of the estate. He would then be their trustee in the application of such fund. But if he stands in loco parentis to his step children, he will be liable for their support, and entitled to their earnings while that relation continues.
    3. Same—gift—whether to be so regarded—relations between the parties considered. Where two persons stand in such relation with each other that an obligation rests upon one of them to make provision for the other, a purchase or investment by the former in the name of the latter, of an amount that would constitute a provision for the beneficiary, will of itself afford evidence of a gift. The presumption of gift will arise from the moral obligation to give.
    4. Although the payment or investment may not be inferred to be a gift from the mere relation of the parties to each other, yet it is always competent to consider the attendant facts and circumstances, from which an intention to give or not to give may be inferred.
    5. A husband and wife owned a lot as tenants in common, and gave a mortgage on the same for money expended by them in the purchase and improvement of the property, which was their homestead. The wife died, leaving children by a former husband, and after her death the husband and her children continued to occupy the property as a homestead. The husband paid off the mortgage debt, principally with the earnings of the children : Held, that even if the husband was legally entitled to the earnings of his step-children, his use of them, not only to preserve the children’s interest in the lot, but also to extinguish the lien resting on his undivided half thereof, as well as to preserve the homestead, evinced an intention on his part to make a gift to his co-tenants of the money so paid.
    6. Homestead—pwrpose and policy of the law. The purpose and policy of the law in prescribing the homestead exemption, is to provide a home and shelter for the surviving husband or wife and for the minor children, and to accomplish this, the homestead interest is continued for the joint and several benefit of the survivors, and of the children after the death of the householder in whom the principal estate was vested.
    7. Same—as between husband and wife as tenants in common—stepchildren of the former. Where a wife dies seized of an undivided half of a lot as a tenant in common with her husband, the premises being their homestead, and leaving minor children by a former husband," then living in the family, the husband will, as before the death of the wife, be entitled to homestead in one-half of the lot in his own right, as owner of the fee; and the homestead interest in the moiety of which the wife died seized, will, by the statute, be continued for his benefit, and for the benefit of the minor children of the wife until the youngest child attains the age of twenty-one years, each moiety of the fee contributing to the homestead estate.
    8. In such case, the right of occupancy is not divisible, and although the minor step-children can only have homestead in the moiety of which their mother died seized, yet the right of occupancy, so long as the homestead continues, must necessarily continue for their benefit in the whole of the land constituting the homestead, including the land of the husband.
    9. Where a homestead estate exists, predicated upon an estate held by the householder as a tenant in common with another, there is no provision of law authorizing allotment of homestead in a moiety of the land.
    10. Same—sale in partition—apportionment of proceeds—in case of tenancy in common with step-children. Upon the sale of the homestead, which may be made under proper consent given, the husband in this case, if entitled to such homestead in severalty, should receive such a sum of money as would represent his right in the entire estate, as well that held by him in his own right as that in right of his wife,—that is, the homestead attaching to the entire estate, he would be entitled to receive from the sale of the moiety belonging to his wife’s children, one-half of the value of the homestead interest, such value to be ascertained according to the usual method of computing the value of life estates.
    11. On the other hand, upon such sale the minor children could take only so much as represented the homestead in the portion of which their mother died seized. But the right of homestead,—the right to occupy and use while the homestead continues,—is vested by law in the surviving husband or wife and the children, alike.
    12. Same—right of waiver—by a step-father. In this case, if the surviving husband was the father of the children, and entitled to their control and custody, their right would be subordinated to his, so far that his waiver, release or abandonment would amount to the extinguishment of their homestead interest. But here, he not being their father or standing in loco parentis, has no power to abandon their right of homestead in their mother’s estate, or to exclude them from participation in its enjoyment.
    13. Cross-erbobs—imist be assigned. This court will not consider cross-errors urged by the appellee or defendant in error, unless they are assigned on the record. It is not sufficient to discuss them in the argument.
    Appeal from the Superior Court of Cook county j the Hon. Gwenn Garnett, Judge, presiding.
    Appellant filed his bill in the Superior Court of Cook county, against Annie Kropik, John Kropik, her husband, John Mlabek, Thomas Mlabek, James Mlabek and Thomas Yosicky, for partition of lot 29, in block 2, in Dobbins’ subdivision, etc., in Cook county. Appellant was the step-father of Annie Kropik, and of John, Thomas and James Mlabek, who were the children of a former husband of appellant’s deceased wife, Ann Capek, and in his bill claimed to be the owner of the undivided half of said lot, as tenant in common with said children of his deceased wife, who, at the time of her death, it was alleged, was the owner of the other undivided half of said lot, and which interest descended to and was owned by said children in equal parts. The bill also alleged that appellant was entitled to dower and homestead in the portion of said lot owned by his wife at her decease, and also to contribution from said heirs on account of money by him expended in improving the common estate, and removing incumbrances therefrom, and in paying taxes thereon; that John, Thomas and James Mlabek were infants, and Thomas Yosicky was occupying tenant of the premises.

      The hill was answered by Annie and John Kropik, and by guardian ad litem duly appointed for the infant defendants; and the said Annie Kropik also filed her cross-bill. In the answer and cross-bill of said Annie it was alleged that said Ann Capek died intestate, leaving surviving appellant, her husband, and her children already named, her only heirs-at-law; that at the time of her death said Ann Capek and appellant held the legal title to said lot, but the said lot was paid for with the separate money and property of said Ann Capek, acquired prior to her marriage with appellant; that appellant paid nothing towards its purchase, and that the title to said lot was taken in the name of appellant and the said Ann, by appellant, without the knowledge or consent of his wife, whereby a resulting trust arose in favor of said Ann and her heirs-at-law in respect of the moiety of the title held by appellant, and that he should be declared a trustee for the children of said Ann in respect of said one-half of said lot, but admitting that appellant was entitled to dower and homestead therein. It was admitted that appellant and his wife borrowed $1000, and secured the same by their joint trust deed upon the lot; that this money was expended in improving said lot; that such trust deed had been released, but alleged that it was discharged and paid off with the money of appellees, children of said Ann, appellant furnishing no part thereof, and denying that appellant had paid anything for improvements, and the sum of $63.10, only, for taxes, and, finally, claiming that appellant be charged with rents and profits, etc.
    Answer was filed denying the material allegations of the cross-bill. Replications were filed, and the cause referred to the master. The cause was heard upon the pleadings, report of the master, and exceptions thereto, resulting in a decree, finding, beside the necessary jurisdictional facts, that Ann Capek died seized of the undivided one-half interest in said lot, and that appellant was seized of the remaining one-half in fee; that the estate of said Ann descended to her said children in equal parts; that appellant and said minor children were entitled to an estate of homestead in said lot, and appellant to an estate of dower in the undivided half of said lot owned by said children, appellees, after allotment of homestead ; that said children wore entitled to contribution from appellant of the sum of $370, being one-half of the value of improvements made by said Ann in her lifetime, and that appellant was entitled to contribution for improvements, etc., made by him, the sum of $310; that the infant children were entitled to one-half of the rents received since their mother’s death upon all that part of the premises not included within the homestead, such amount to be ascertained by reference to the master for that purpose"; that appellant was entitled to partition, and to dower and homestead, and incorporating the usual provisions to effect their allotment, and dismissing the cross-bill, so far as the same sought to establish a resulting trust in said lot in favor of appellees, or any of them. Appellant, complainant in the original bill, brings the record to this court.
    Mr. Theodore H. Schintz, for the appellant s.
    As appellant gave his step-children a home, clothed and maintained them, he stood in loco parentis to them, and was entitled to their wages or earnings. Brush v. Blanchard, 18 Ill. 46; Attridge v. Billings, 57 id. 489; Mowbry v. Mowbry, 64 id. 387; Magee v. Magee, 65 id. 255.
    When the relation between the parties, as here, is that of step-father and step-child, it is incumbent on the party claiming an advancement, to prove the same. Bennett v. Bennett, 10 L. R. (Ch. Div.) 474; Powys v. Mansfield, 3 M. & C. 367; Tucker v. Burrow, 2 H. & M. 515; Todd v. Morehouse, 19 L. R. Eq. 69.
    The presumption from the facts is entirely against a gift or advancement to the step-children, and the case we submit comes within the usual rule as to contribution by tenants in common. Because complainant eventually took a release,, and not an assignment of the trust deed, he is not deprived of his right to contribution. Robinson v. Leavitt, 7 N. H. 99 Towle v. Hoit, 14 id. 61; Jenness v. Robinson, 10 id. 215; McCready v. Van Antwerp, 24 Hun, 322; Titsworth v. Stout, 49 Ill. 80; Wilton v. Tazewell, 86 id. 29; Carter v. Penn, 99 id. 390.
    Mr. John Lyle King, and Mr. Josef P. Kohout, for the appellees.
   Mr. Chief Justice Shope

delivered the opinion of the Court;

In respect of the contention of appellees, that the court erred in refusing them the full measure of relief sought by the cross-bill, and to which the major part of the argument of counsel is directed, it is sufficient to say, they have assigned no cross-error upon this record.

It is conceded by appellant, and found by the court, that, at the death of Ann Capek, his wife, one-half of this lot descended in fee to her four children named, subject to dower and homestead of appellant therein. A question of some difficulty arises from the fact that at the time of the death of Ann Capek, the entire lot, and the interest of each tenant in common, was encumbered by a deed of trust, executed jointly by appellant and his wife, to secure a loan of $1000, procured from the ¡National Loan Association. It is sufficiently accurate to say, that the weight of evidence shows that the entire sum realized upon this loan was expended either in the purchase of the lot or in the improvements placed thereon, and inured to the benefit of the common estate. The loan was made October 10, 1882, .and Mrs. Capek died the 30th of the same month, leaving complainant, her husband, and four children, her surviving. It also appears, that prior to and at the death of Mrs. Capek, said premises, with the dwelling, etc., thereon, were occupied as a homestead, and that appellant and the minor children of Mrs. Capek, after her death, continued for some years to occupy the same as a homestead.

The $1000 loan was to be paid, and was paid, in monthly installments, running through a series of years. During that time the children of Mrs. Capek, (and step-children of appellant,) after the death of their mother, lived with and as part of the family of appellant. While it is not absolutely certain, we think it appears that the money used in making such payments was earned by such children, and was taken by appellant and applied in meeting the installments as they came due from time to time, until the loan mentioned was discharged. It is satisfactorily shown that the money earned by the children and appropriated by appellant, at least far exceeded one-half of said loan and the taxes upon the property. Appellant was without means, worked only a portion of the time, as a day laborer, and earned an amount wholly insufficient, as it would seem, to meet the expenses of the family and make these payments. Indeed, it is not shown that he had any resources within himself from which any considerable portion of the loan could have been paid.

If it be conceded that appellant did not stand in loco parentis to these children, their earnings, at least over and above the amount necessarily expended for their maintenance, if expended by appellant in liquidation of the loan, would inure to their benefit,—he would be their trustee in the application of said fund. If, however, he stood in loco parentis to his step-children, he would be liable for their maintenance, and entitled to their earnings while that relation continued. The husband is not bound to accept into his family the children of his wife by a former husband, but if he does so voluntarily, so long as the relation is permitted to continue he assumes the duties and obligations of a parent. So it is said, “that a person in loco parentis, means a person taking upon himself the duty of a father to make provision for the child.” (Powys v. Mansfield, 3 M. & C. 361.) There is much discussion in "■the books as to whether the duty thus self-inqposed extends beyond the mere obligation of maintenance, some of the authorities holding that the presumption of advancement for the benefit of the child will not arise from the fact, alone, that the donor was in loco parentis to the supposed donee. See Tucker v. Burrow, 2 Hem. & Mill. 515; Todd v. Morehouse, 19 L. R. Bq. 69; Bennett v. Bennett, 10 L. R. Ch. Div. 474. See, however, 2 Pomeroy’s Bq. Jur. sec. 1039, and authorities cited. "We do not deem it necessary in this case to review the authorities upon this subject. The rule as established by the weight of authority probably is as stated by Jessell, M. E,, in Bennett v. Bennett, supra: “The doctrine of equity, as regards presumptions of gifts, is this: that where one person stands in such relation to another that there is an obligation on that person to make provision for the other, and we find either a purchase or investment in the name of the other, * * * of an amount which would constitute a provision for the other, the presumption arises of an intention * * * to discharge the obligation, * * * and therefore, in the absence of evidence to the contrary, the purchase or investment is held to be, in itself, evidence of a gift,—in other words, the presumption of gift arises from the moral obligation to give.”

It is said that this view reconciles all the cases upon the subject except the case of Sayres v. Hughes, 5 L. R. Eq. 376, the reasoning of which is disapproved by the learned master of the rolls. It is, however, unquestioned, that although the payment or investment may not, be inferred to be a gift from the mere relation of the parties, each to the other, yet it is always competent to consider the attendant facts and circumstances, from which an intention to give or not to give may be inferred. Current v. Fago, 1 Collier’s Ch. 262; Beckford v. Beckford, Lofft, 490; Ebrand v. Denser, 2 Ch. Cases, 26; authorities supra.

The indebtedness discharged, and for which appellant seeks contribution, was the joint indebtedness of the tenants in common, and its discharge was for the benefit of the joint estate. The money with which the .lien was extinguished was largely produced by the labor of these children, and while it may be that appellant was legally entitled to their earnings, they were used by him to preserve not only the interest of his co-tenants in the lot, but also to extinguish the lien resting upon his undivided half thereof, as well as to preserve the homestead, which he now seeks to have set off, to himself. It is thus apparent that the payments were made by him to save the common estate, and that he has received the benefit of the fund with which he now seeks to charge appellees. No good purpose could be subserved by an extended discussion of the facts and circumstances under which these payments were made, and which evince an intention on the part of appellant of making the same for the joint benefit of himself and these children, and to protect the joint estate. Under the circumstances here shown, it may properly be held that such payments were intended as a gift to- the co-tenants, who were members of his family, and who, as we have seen, produced the funds with which the lien upon the common property was discharged, and we therefore think the chancellor committed no error in so holding.

Nor are we prepared to say that the chancellor erred in charging appellant with one-half of the sum advanced by his wife, in her lifetime, for improvements placed upon the premises. It is true, the evidence is conflicting and not altogether satisfactory; but the chancellor was justified in finding that the weight of testimony sustained that contention of appellees.

A somewhat more difficult question arises out of the complications in respect of the homestead interest in this lot. The court found and decreed that appellant and his three minor step-children, John, Thomas and James Mlabek, were entitled to an estate of homestead in said lot 29, and that appellant was entitled to dower in the undivided half of said lot of which his wife died seized, after allotment of the joint estate of homestead. It is first objected, that the court erred in finding that appellant or the minor step-children named were entitled to an estate of homestead during the minority of the youngest thereof, in the whole of said lot, and in decreeing the homestead to them in any part of the premises. We are not aware that this precise question has been passed upon. The estate of homestead is given to every householder having a family, in the farm or lot of land, and buildings thereon, owned or rightly, possessed, by lease or otherwise, and occupied by him or her as a residence. (Eev. Stat. chap. 52, sec. 1.) And such “exemption,” it is provided, shall continue after the death of such householder, for the benefit of the' husband or wife surviving, so long as he or she continues to occupy such homestead, and of the children until the youngest child becomes twenty-one years of age; and that in case the husband or wife shall desert his or her family, the exemption shall continue in favor of the one occupying the same as a residence. Eev. Stat. chap. 52, sec. 2.

Appellant and his wife were seized as tenants in common of the lot in question, and, each occupying the same as a residence for themselves and family, were jointly seized of an estate of homestead in such lot. Upon the death of the wife the fee to the moiety owned by her descended to and vested in her heirs-at-law, subject to the homestead interest of the surviving husband and her minor children, and the dower right of the husband in the residue of the premises after the allotment of the homestead estate. Upon her death, as before, the husband, by virtue of the statute, was entitled to homestead in one-half of said lot in his own right, as owner of the fee; and the homestead interest in the moiety of which the wife died seized, was, by the statute, continued for hi5 benefit, and for the benefit of the minor children of the wife, until the youngest attained the age of twenty-one years, each moiety of the fee contributing to the homestead estate. It will, we think, be unnecessary to discuss, here, the character ■or quantity of estate taken by the surviving husband or wife, ■or by the minor children, in the homestead. It is apparent that the right of occupancy is not divisible, and although the minor step-children could only have homestead in the moiety ■of which their mother died seized, yet the right of occupancy, so long as the homestead continues, must necessarily continue for their benefit in the whole of the land constituting the homestead,—that is, no allotment of the homestead could be made except by setting off by metes and bounds, or otherwise, the dwelling house, etc., of the value of $1000; and it necessarily follows, that any allotment of homestead made to appellant must require that each moiety of the fee contribute its •share thereto. It was not, therefore, error for the court, upon the prayer of complainant that his homestead be set off, to find and declare the homestead to exist in the whole of said t premises.

The purpose and policy of the law is to provide a home and shelter for the surviving husband or wife and for the minor children, and to accomplish this the homestead interest is continued, for the joint and several benefit of the survivor -and of the children, after the death of the householder in -whom the principal estate was vested. Where a homestead interest or estate exists, predicated upon an estate held by the householder as tenant in common with another, there is no provision of law authorizing allotment of homestead in a moiety of the land. Upon the sale of the homestead, which may be made under proper consent given, (Partition act, sec. 33,) in proceedings of this character, appellant, if entitled to such homestead in severalty, should receive such a sum of money as would represent his right of homestead in the entire estate, as well that held by him in his own right, as that in right of his wife,—that is, the homestead attaching to the entire estate, lie would be entitled to receive from the proceeds of the sale of the moiety belonging to appellees, one-half of the value of The homestead interest, such value to be ascertained according to the usual method of computing and determining the value-of life estates in similar eases; (Merritt v. Merritt, 97 Ill. 243 ;) while, on the other hand, it is manifest that upon such sale the minor children, here, could take only so much as represented the homestead in the portion of which their mother died seized. But the right of homestead—the right to occupy and use while the homestead continued—is vested by law in the surviving husband or wife and the children - alike. It is-true, that if appellant was the father of these minor children, and entitled to their control and custody, their right would be subordinated to his, so far as his waiver, release or abandonment would amount to the extinguishment of their homestead interest. (Kingman v. Higgins, 100 Ill. 319.) Here, however, no such state of facts exists. Appellant is not the father of these children, nor is there any pretense that at the time of filing this bill, or for a considerable time prior thereto,'1 he-stood in loco parentis to them, or either of them. It is not, therefore, in the power of appellant to abandon the right of homestead of these minor children in their mother’s estate, or to exclude them from participation in its enjoyment.

We are of opinion that the court did not err in decreeing-that appellant and such minor children were entitled to homestead in the premises sought to be partitioned.

The decree charged appellant with one-half of the rents-accruing from that part of the estate not included within the homestead proper, and referred the cause to the master to-ascertain and report the amount thereof, etc. In this there is no error of which appellant can complain. It is not proposed to charge him with rents received by him from the-homestead estate.

The other questions pressed upon our attention are purely of fact. The evidence is conflicting, but it is sufficient to say, that we have carefully examined the record and find no error therein-

The decree of the Superior Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Wilkin

license: Public Domain

text:
    John J. Farris v. The People of the State of Illinois.

      Filed at Ottawa June 15, 1889.

    1. Allegations and proofs—should correspond. It is the general rule, that in all cases, civil or criminal, the evidence must be confined1 to the points in issue; but there is a greater reason for strictly enforcing the rule in criminal cases than in civil cases.
    2. No fact which, on principles of sound logic, does not sustain or impeach a pertinent hypothesis, is relevant, and no such fact should therefore be admitted as evidence on the trial, unless otherwise provided by some positive prescription of law.
    3. This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, for the reason such evidence tends to draw away the minds of the jurors from the point in issue, and excite prejudice, and mislead them, and because the adverse party, having no notice of such course of evidence, is not prepared to rebut it.
    4. Evidence in criminal cases—proof of other offenses. It is a general rule, that evidence of a distinct, independent, substantive offense can not be admitted on the trial of the defendant for another and different offense, unless it clearly appears that such evidence tends in some way to prove him guilty of the crime for which he is being tried.
    5. To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by connection which shows that he who committed the one must have done the other. If the evidence be so dubious that the court does not clearly perceive the connection, the benefit of the doubt should be given to the accused, instead of suffering the minds of the jury to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.
    6. "Where the facts and circumstances amount to proof of a crime other than that charged, and there is ground to believe that the crime charged grew out of it, or was in any way caused by it, such facts and circumstances may be proved to show the quo animo of the accused.
    7. Evidence of the commission of a crime other than the one for which the defendant is being tried, is admissible when the object is to prove guilty knowledge, as, in a prosecution for passing counterfeit money; or to prove an act was not accidental or done by mistake, as in a case of poisoning or embezzlement; or to prove motive, as on the trial of a husband for the murder of his wife, in which case, in the absence of direct evidence, proof of his adultery with another woman has been held competent; or in cases where the prisoner says he did not do the act, and supports his denial with the assertion that no motive existed within him for the commission of the crime; or to refute some anticipated defense.
    8. On the trial of one for murder, by shooting, it appeared that the person killed had shortly before the homicide married the prisoner’s former wife; that the prisoner came to the house of the deceased while the family were at dinner, and fired two shots at the deceased as he was rising from the table, one or both of which killed him; that he then threatened to shoot the wife, and after pursuing her to prevent her getting away, and bringing her back to the house, he, about a half hour after the shooting, and after some conversation and moving about, compelled the wife of the deceased go with him into a house, where he ravished her. All the evidence in respect to the rape, and the circumstances thereof, was objected to by the defendant, but the court .admitted the same. There was no other evidence connecting the two acts,—the homicide and the rape: Held, that the court erred in allowing evidence of the rape to go to the jury.
    9. It was insisted that the evidence of the subsequent rape was proper, for the purpose of showing a motive for the homicide; but the court held, that while, in oases of doubt as to whether the party charged ■did the criminal act, proof of motive was important and proper, yet as the People had shown the deliberate shooting by the accused under circumstances showing both express and implied malice, proof of motive was unnecessary to a conviction, and that while the prosecution doubtless had the right to add to that proof, there was error in admitting the evidence of the rape when it was not necessary, as it was highly calculated to inflame and prejudice the jury, who, under the law, had the right to fix the punishment at imprisonment, or the death penalty.
    Wbit of Ébbob to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. H. W. Mastebs,' Mr. M. C. Quinn, and Mr. Abthur Keithley, for the plaintiff in error:
    The plaintiff in error was charged, alone, with the crime of murder, and it was error to admit evidence of a subsequent distinct and independent crime, highly calculated to prejudice ihe jury. If the proof had shown that the homicide was committed for the purpose of gratifying his lust, then the evidence admitted was proper. The motive of the killing, it is apparent, was not lust, or the opportunity for its gratification, and hence this proof of a distinct crime from that for which the defendant was being tried was clearly error. Watts v. State, 5 W. Va. 532; People v. Jones, 31 Cal. 565 ; State v. Shuford, 69 N. C. 43.6; Dunn v. State, 2 Ark. 229; Shaffner v. Commonwealth, 72 Pa. St. 60.
    The evidence is not admissible unless it has a direct tendency to prove the particular crime charged. State v. Harold, 38 Mo. 496.
    If improper testimony has been admitted, the court can not look to the whole case to determine whether or not there be other testimony sufficient to establish the defendant’s guilt. Draper v. State, 22 Texas, 400.
    The proof should have no reference to any of the prisoner’s conduct not connected with the charge upon which he is being tried. Hopps v. People, 31 Ill. 385.
    Evidence of prior misconduct of the accused is never admissible, except to prove malice or guilty knowledge. Gifford v. People, 87 Ill. 211.
    We take it, that it would be idle to insist that this proof showed acts that were not a part of the res gestee, as it will not be contended that it does. Bishop defines the res gestee to be or consist of two parts, viz: First, the accompanying acts; and second, the declarations attending them. And it would be a hopeless task to show that the act the proof of which we complained of comes under either of these two definitions. Bishop on Grim. Proc. sec. 1085.
    For the purpose of proving guilty knowledge, evidence of similar substantive offenses, founded upon other and different transactions, may be proved,—such as passing counterfeit money, and the like. But this is the exception to the rule, and does not obtain in this case. Baker v. People, 105 Ill. 452. In a civil suit for assault and battery, to recover damages, this court held that evidence of slanderous matter, or other improper conduct of the defendant likely to influence the verdict of the jury, was error, and reversed the judgment' and remanded the cause -for such error. Sutton v. Johnson, 62 Ill. 209.
    The court has no power in a capital case to affirm merely because they are persuaded that upon the merits the judgment was right, but if error has intervened it will be assumed to be injurious to the prisoner, and he is entitled to a reversal. People v. Williams, 18 Cal. 187.
    It was a grave and serious error to permit it to go to the jury, and especially is this true in a capital case. The proof of such matter would be error and ground for reversal in cases of much less importance than the one now before your honors. “Relevancy is to be determined by free logic, unless otherwise settled by statute or controlling precedent. All facts that go either to sustain or impeach a hypothesis logically pertinent, are admissible; but no fact is relevant which does not make more or less probable such a hypothesis.” Wharton on Grim. Ev. (9th ed.) sec. 20.
    Mr. Geobge Hunt, Attorney General, for the People:
    When the particular act charged against the prisoner is to be collected from other acts done by him, all of them constituting one entire transaction, or mutually explanatory of each other, the court may allow the prosecution to go into the whole. 1 Phillips on Evidence, 767, 768; People v. Wood, 3 Park. Cr. 683; People v. Marble, 38 Mich. 123; Roscoe on Evidence, 93 ; Heath v. Commonwealth, 1 Rob. (Va.) 796 ; Osborne v. People, 2 Park. Cr. 584; Mason v. State, 42 Ala. 532; Phillips v. People, 57 Barb. 553; Haskins v. People, 16 N. Y. 344; People v. Doyle, 21 Mich. 221; Coleman v. People, 58 N. Y. 555; People v. Mead, 50 Mich. 228; Commonwealth v. Tuckerman, 10 Gray, 198; Rex v. Mogg, 4 C. & P. 364; Rex
      v. Geering, 18 Law J. (N. E.) 216; Regina v. Dossett, 2 C. & K. 306; Regina v. Gray, 4 F. & F. 1102; Hope v. People, 83 N. Y. 418; Commonwealth v. Ferrigan, 44 Pa. St. 386; State v. Nugent, 71 Mo. 137.
    The matter in, question was also a part of the res gestee. "The surrounding circumstances constituting parts of the res gesta, may always be shown to the jury along with the principal fact. The principal points of attention are, whether the circumstances an¿L declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” 1 Greenleaf on Evidence, sec. 108.
    Mr. Kinsey Thomas, States Attorney, also for the People.
   Mr. Justice Wilkin

delivered the opinion of the Court s

At the August term, 1888, of the Fulton circuit court, plaintiff in error was indicted for the murder of one Stephen Mc-Eehee. On his petition the venue was changed to Peoria county, and at the December term, 1888, of the circuit court of that county, he was found guilty of murder, and sentenced to be executed. He sues out this writ of error, and urges a reversal of the judgment below, principally on the ground that the trial court erred in admitting improper evidence on behalf of the People, to his prejudice.

Mrs. Debbie McGehee, wife of the deceased, was the principal witness in the ease. .She had been married to the defendant, Farris, but had obtained a divorce from him, and on February 28, 1888, married the deceased. She had not lived with the defendant since May 9, 1884. She testifies that about noon, on the 18th of April, 1888, while she, her husband and the children were eating dinner, defendant came to the east door of the room in which they were sitting, -with a revolver in his right hand. Her husband spoke to him, saying, "How do you do?” He replied, “How are you?” and immediately said, “You damned son of a bitch, I have come to kill you, and I am going to do it;” that McGehee started to get up, when the defendant fired upon him, and was about firing the second shot, when deceased, still being in the act of rising, exclaimed, “Oh! don’t!” The second shot was fired, and Mc-Gehee fell. There is no dispute as to the fact that by one or both of these shots McGehee was instantly killed. Immediately the defendant threatened to kill Mrs. McGehee, but she and her little boy succeeded in forcing him out of the house, and overcame him. He then begged them to let him up, and upon his promising that he would not kill her, they did so. Thereupon he proposed to go in the house and get some coffee, but she told him that none had been prepared for dinner, and as he and the children went in the house she ran in the direction of one of the neighbors. She had gone but a short distance when she discovered that he was pursuing her, and calling upon her to stop. He came up to where she was, and again threatened to shoot her. She sat down on the ground, and he and the children also sat down near her, and she says they then had some conversation, in which he inquired why she married McGehee, and said that her mother had told him to kill McGehee. They remained there a short time, when she asked him to hitch up the team for her, so that she might go to her parents, and he promised to do so. They went to the barn, he going in but she remaining at first outside. He commanded her to come on in. At this point an objection was made, by counsel for defendant, as to any evidence of what took place there, upon the ground “that it was no part of the res gesta;” and in ruling upon that objection the court held and stated that the prosecution “might prove that the defendant committed the crime of rape upon Mrs. McGehee within a reasonable time after the killing, upon the theory that such evidence tended to prove the motive or intent with which the homicide was committed.” She then proceeded to testify that she went in the barn upon his demanding that she should, and sat down, and that they there had some further conversation, but not about McG-ehee. He finally refused to hitch up the team, and they left the barn and “started to town.” He made some inquiry as to what was kept in an old house near by, and proposed to go in and see. He went in and told her to come in, but she refused until he again told her to do so, when, through fear, she obeyed. Before they went in he gave the revolver to the little boy, and sent the children to the barn. He then made an indecent proposal to her, which she refused. Thereupon he struck her, and pushed her against the side of the house, she resisting, and attempting to push him away. Counsel for the People then asked her, “What did he do ?” Answer, “He mistreated me.” Question, “What then occurred ? You need not have any hesitancy about telling what was done there. The jury want to know all the facts.” And counsel proceeded, by direct questions, to prove by her that the defendant then and there committed a rape upon her. This occurred, as she testifies, about a half hour after the shooting.

As to the circumstances connected with the shooting, Mrs. McG-ehee is fully corroborated by Eddie Farris, a son of defendant and herself, about eleven years old. The evidence shows that defendant was intoxicated to some extent, and had been drinking for several days; but Mrs. McGehee swears that he knew what he was doing, and there is no reason to doubt her evidence as to that fact. After the evidence of Mrs. Mc-Gehee it was also shown by the State that defendant recently, prior to the killing, made threats against deceased. The only attempt at justification was, that the shooting was done in self-defense, and it is not now claimed that there was any substantial proof in the case upon which to base it.

The foregoing statement will be found sufficiently full for a satisfactory consideration of the question whether or not it was competent for the prosecution to prove the crime of rape, as allowed by the court below, that being the only question which we deem it important to notice.

The general rule, that evidence of a distinct, substantive offense can not be admitted in support of another offense, is laid down by all the authorities. It is, in fact, but the reiteration of the still more general rule, that in all cases, civil or criminal, the evidence must be confined to the point in issue, it being said, however, by authors on the criminal law, that in criminal cases the necessity is even stronger than in civil cases of strictly enforcing the rule, for where a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment and matters relating thereto, which, alone, he can be expected to come prepared to answer. 3 Bussell on Crimes, (5th ed.) 368; 1 Boscoe on Grim. Evidence, (8th ed.) 92.

“No fact which, on principles of sound logic, does not sustain or impeach a pertinent hypothesis, is relevant, and no such fact, therefore, unless otherwise provided by some positive prescription of law, should be admitted as evidence on a trial. The reason of this rule is obvious. To admit evidence of such collateral facts would be to oppress the party implicated, by trying him on a case for preparing which he has no notice, and sometimes by prejudicing the jury against him. * * * To sustain the introduction of such facts they must be in some way capable, as will presently be seen more fully, of being brought into a common system with that under trial.” (Wharton on Grim. Evidence, sec. 29.) “In criminal cases there are peculiar reasons why the test before us should be applied to proof of collateral crimes.” Ibid. sec. 30.

“This rule,” says Greenleaf, vol. 1, see. 52, (not confining it to criminal cases,) “excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute,—and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them; and, moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rehut it.”

In Sutton v. Johnson, 62 Ill. 209, which was a civil suit, for an assault and battery, and assault with intent to commit a rape, a witness on behalf of the plaintiff was allowed to testify that the defendant had told him “that he and his wife had not been getting along well together, and he had to be too intimate with the hired woman, or was forced to be too intimate with the hired woman,” not stating who the woman was, and for that error alone a judgment in favor of the plaintiff was reversed, Mr. Justice Sheldon saying in the opinion rendered: “This evidence did not tend to prove the assault, * * * and did tend to prejudice the jury against the defendant. There should not have been brought into the trial of the simple issue in this case, anything which might be regarded as slanderous matter, or other improper conduct of the defendant, to make against him, ■ and by its consideration be likely to influence the verdict of the jury.”

It is conceded that the mere fact that testimony may tend to prove the commission of other crimes, or to establish collateral facts, does not necessarily render it incompetent, provided it is pertinent to the point in issue, and tends to prove the crime charged; but the general rule is against receiving evidence of another offense, and no authority can be found to justify its admission, unless it clearly appears that such evidence tends, in some way, to prove the accused guilty of the crime for which he is on trial. Says Agnew, J., in Shaffner v. Commonwealth, 72 Pa. St. 65: “To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by connection which shows that he who committed the one must have done7the other.” And he adds: “If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact carrying with it no proper evidence of the particular guilt.”

In Lapage v. State, 57 N. H. 245, Cushing, C. J., after citing many cases in which such proof was held competent, and showing that in each of them some logical connection existed between the independent crime proved and that charged, says : “It should also be remembered, that this being a matter of judgment, it is quite likely that courts would not always agree, and that some courts might see a logical connection when others could not. But however extreme the case may be, I think it will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved, other than the tendency to commit one crime, as manifested by the tendency to commit the other.”

In Commonwealth v. Ferrigan, 44 Pa. St. 386, Thompson, J., says: “The rule on this subject may, in substance, be stated to be, that when facts and circumstances amount to proof of another crime than that charged, and there is ground to believe that the crime charged grew out of it or was in any way caused by it, such facts and circumstances may be proved, to show the quo animo of the accused.”

Again, in Commonwealth v. Merriam, 14 Pick. 518, Putnam, J., said: “Evidence should be excluded which tends only to the proof of collateral facts. It should be admitted if it has a natural tendency to establish the fact in controversy. If the evidence is irrelevant it should be rejected, for two reasons : First, it would have a tendency to mislead the jury from the true subject of the inquiry; and second, no man is to'be expected to go to trial prepared to prove things which are unconnected with the issue.”

Our conclusion from all the authorities is, that whatever be the object of the testimony,—whether to prove guilty knowledge, as in prosecutions for passing forged notes or counterfeit money, where proof of other offenses of the same kind is competent ; to prove that the act was not accidental or done by mistake, as in case of poisoning or embezzlement; to prove motive, as on trial of a husband for the murder of his wife, in which case, in the absence of direct evidence, proof of adultery by the prisoner with another woman was held competent; or in cases where the prisoner says he did not do the act, and supports his denial with the assertion that no motive existed within him for the commission of such a crime, or to refute some' anticipated defense,—proof of a distinct, substantive crime is never admissible, unless there is some logical eonnection between the two, from which it can be said the one tends to establish the other. In this case it must be borne in mind that there is no evidence whatever connecting the two •acts, or tending to show wherein the commission of the rape had any bearing upon or tendency to explain the commission of the homicide, and therefore, if it be held that evidence of the one tended to prove the other, it must be upon the ground that there is some natural or obvious connection between the two acts. Did the proof of rape in this case tend to prove defendant guilty of murder? What element-in the crime of murder was wanting when this evidence was admitted, or what fact in evidence necessary to make out the crime of murder did it tend to strengthen or corroborate ? It seems clear to us that these are questions which puzzle the legal mind, and can only be answered so as to sustain the admissibility of the evidence in question, if at all, by drawing exceedingly fine distinctions.

To the other question,—was it not evidence calculated to inflame the minds of the jury, and prejudice them against the defendant, rather than prove him guilty of murder,—the answer is obvious. It is insisted that the object was to show a motive, and for that purpose the learned judge held it competent. In the first place, under the facts proved it was not necessary to prove a motive. In cases of doubt as to whether the party charged did the criminal act, proof of motive is important, and often decisive; but in this case, the State having shown the deliberate shooting, under circumstances showing both express and implied malice, proof of motive was not necessary to a conviction; and while the prosecution doubtless had the right to add that proof by competent evidence, it may well he doubted whether testimony so strongly calculated to prejudice the jury against the defendant should have been admitted, even though it tended to prove a motive, such proof not being necessary to the case. But no theory has been suggested upon which it can be said that the commission of the crime of rape tended to show a motive for the homicide, and after a most careful examination of all the evidence, and a consideration of it in all its phases, we can discover no ra7 tional connection between the two acts, whereby it can be inferred that desire, purpose or intent to commit the crime upon Mrs. MeGehee could have influenced the mind of defendant to take the life of deceased. To so hold seems to us not only illogical, but unnatural and unreasonable.

It is contended by counsel for the People, that the prosecution had a right to show all that the defendant did from the time he came to the place of the killing until he left it, as parts of one and the same transaction. Here again we must deal with the question, when is it competent to prove a crime distinct from the one for which the accused is on trial ? We have already seen, the general rule of evidence excludes such proof. An exception to that rule allows it when the acts form one transaction. (1 Wharton on Crim. Law, sec. 649.) As in Heath’s case, where it was held competent to show, under the circumstances of the case, that the prisoner, shortly before the killing, shot a third person, notwithstanding the evidence tended to prove a distinct felony, such shooting and the hilling of the deceased appearing to he connected as parts of one transaction,, (1 Rob. Va. 735.) Or where, on trial for breaking into a booking office, evidence was admitted that the prisoner had on the same night broken into three other booking offices belonging to three other stations on the same railway, the four cases being all mixed up together. (R. v. Cobden, 3 F. & F. 76.) The same principle obtains when it is sought to prove some distinct act as part of the res gestee, in which case “the principal points of attention are, whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” (1 Greenleaf on Evidence, sec. 108.) Here, as we have said, there is no proof to connect the two acts, nor is there any such obvious relation between them that it .may be inferred that the one in any way characterized the other. We are convinced that there is no theory upon which the competency of this testimony can be sustained, without breaking down firmly established rules of evidence.

It is suggested, and pressed by way of argument, that although the trial court may have erred in allowing this proof, yet, the case being so clearly made out by other evidence and the defense so utterly futile, the error should be held harmless. If the only punishment for the crime of murder in this State was death, the point would be entitled to weight. If it was within the province of the court to assume that the jury would have inflicted the death penalty because the proof of guilt justified it, or if our decision was to affect this case alone, we might hesitate to order a reversal on this theory. The legislature has seen fit to clothe juries with a wide discretion in fixing the punishment to be inflicted upon one convicted of murder. Every defendant on trial for that crime is entitled to the full benefit of the statute. When all else has failed him, he has a right to stand before a jury unprejudiced by incompetent, irrelevant evidence, and appeal to them to spare his life. It is impossible for us to know what the jury in this case would have done but for the introduction of this incompetent evidence, much less is it our province to say what they should have done, and no opinion is expressed on that subject. We can only judge of the influence of such testimony upon the minds of the jury by experience and observation common to us all. Here was proof of a distinct felony,—the disgusting and abhorrent facts attendant upon the commission of that most brutal and infamous crime given in detail. No one need be told that from that moment, if the evidence was believed, all feeling of commiseration and mercy toward the defendant must have fled the minds of the jury. There was left for him no possible escape from the death penalty. But aside from all these considerations, we are required to settle a. rule of evidence in criminal trials, not merely with reference to this case, but in consideration of future consequences and other rights, and we can not, from that consideration alone, hesitate to hold that there was such manifest and prejudicial error -in the admission of evidence by the trial court in this case as must work a reversal of its judgment.

The judgment will be reversed.

Judgment reversed.

Magbudee, J.: It does not seem to me to be right to reverse this judgment. I cannot concur in the opinion.

Shope, G. J.: I can not concur in the conclusion reached by the majority of the court.


author: Mr. Justice Craig

text:
    The Tudor Iron Works v. Robert Weber.

      Filed at Mt.Vernon June 17, 1889.

    1. Evidence—cross-examination. On the trial of an action to recover for personal injury to the plaintiff by having his clothes caught while oiling journals near certain couplings alleged to have been unsafe, the plaintiff testified in chief that he did not have much experience in machinery. On cross-examination various questions were put touching his experience with the machinery and the character of his work for three or four years prior to the injury, to which the court sustained objections: Held, that the ruling of the court was erroneous, and that as the party had testified in chief on this point, the defendant had the right to go into the subject fully on cross-examination.
    2. Same—production of torn clothing as illustrating nature of an injury. In an action for a personal injury resulting from the plaintiff’s clothing being caught in the machinery of a mill, which was claimed to have been in an unsafe condition, the admission of the plaintiff’s torn clothing in evidence rests in the sound discretion of the trial court. If the manner in which the plaintiff was injured, or the nature or character of the injury, can be better explained by the production of the torn clothing, such evidence may be admitted.
    3. Instruction—construed—whether directing a verdict “as charged in the declaration.’’ In an action to recover for an injury on the ground of alleged negligence, the court instructed the jury, “that if, under the evidence and the instructions of the court, they find the defendant guilty, then,” etc., giving the elements of damages they might consider. The defendant claimed that the instruction was erroneous because the jury were not instructed to find defendant guilty “as charged in the declarationHeld, no error in this respect, as the words “as charged in the declaration,” were implied from the language used.
    4. Same—instruction construed—as to amount of damages to be assessed. An instruction, after stating that if the jury found the defendant guilty under the evidence, informed them of the different elements of damages for their consideration, and then concluded, “provided they (the jury) do not estimate said damages at a sum greater than $15,000 Held, that the instruction was not subject to the objection that it authorized the jury, if they found any damages whatever, to assess any.sum they saw fit, not exceeding $15,000.

      5. Ebbob will not always reverse—exclusion of evidence. Where the evidence sought "by questions on cross-examination proper in itself, is fully obtained in answer to other similar questions, the error of the court in refusing to allow the first named questions to be answered, is one which does no harm, and affords no ground of reversal.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Mr. Marshall W. Weir, for the appellant.
    Mr. W. S. Hay, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action to recover damages for personal injuries received by the plaintiff while oiling certain journals in the defendant’s iron works. The declaration contained four counts. The first is substantially as follows: That on the 8th of December, 1886, plaintiff was working as a laborer in defendant’s mill, under the superintendence of Niemeyer, the foreman; that it was the duty of defendant to furnish safe machinery, yet it did not regard its duty in that behalf, or use due care, but, on the contrary, so carelessly, negligently and unskillfully constructed and repaired a certain coupling on a certain piece of shafting that the coupling was left in an unsafe and dangerous condition; that defendant knew, or might have known by proper care, of such unsafe and dangerous coupling; that plaintiff did not know thereof; that Niemeyer ordered plaintiff to oil certain journals on said piece of shafting, without warning him of the unsafe coupling, and while oiling near said coupling had his clothes caught, etc. The other counts do not differ materially from the first.

On the trial in the circuit court, the plaintiff, on his examination in chief, testified that he did not have much experience in machinery, and upon cross-examination the following ques- ' tions were asked the witness:

“What was the nature of your employment during the three or four 3rears you worked for them ?—what did you do for the company while you were working for them ?”

“Now, what was the nature of the 'work that you were employed at during those three or four years that you worked for the company prior to 1886 ?”

“I will ask you if you did not, while you were at work at the shears, also do the oiling of the machinery ?”

“I will ask you whether you did not, while you were shear-man, do oiling?”

“Did you not, during the time you worked for the company prior to the year 1886, oil shafting or journals for a considerable time?”

“Did you not for a considerable time^—some months, say— prior to 1886, oil these same journals that you oiled at the time of the accident ?”

But, upon objection being made, the court ruled that the witness need not answer the questions. We think the ruling of the circuit court was erroneous. The witness had testified in chief on this, and the defendant had the right, if it saw propér, to go into the subject fully, on cross-examination. Greenleaf, (vol. 1, sec. 446,) in speaking upon this subject, says: “By means of it” (cross-examination) “the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory and description, are all fully investigated and ascertained, and submitted to the consideration of the jury.”

But while we think the questions were proper and the court should have required the witness to answer them, upon looking into the record we find that other questions, substantially like those objected to, were asked and answered. We find the following:

Q. “Now I will ask you to state how long you had worked for the company prior to the year in which you got hurt.

The court: “He has already stated that he was there three or four years.

Q. “Now, what was the nature of the work that you were employed at during those three or four years that you worked for the company prior to 1886 ?

Mr. Hay: “Let him say what work he was doing then— what general work.

A. “I was working at the shears.

Q. “I will ask you if you did not, while you were at work at the shears, also do the oiling of the machinery ?

A. “I was employed to do all kinds of work.

Q. “Oiling and cleaning, yard work, and all kinds of work ?

A. “Yes, sir.

Q. “You stated that' you were at the shears during those three or four years ?

A. “Yes, sir.

Q. “Now, I will ask you if it was not a part of your duty as shearman, to oil the journals at that time ?

A. “No, sir; it never was.

Q. “You say it was not ?

A. “No, sir.”

The witness also answered, in reply to a question, that he had done oiling for the company, and received extra pay for such service.

From the foregoing it is apparent that the evidence sought by the questions which were objected to, was fully obtained in answer to other questions, and while the court erred in holding that the witness should not answer" the questions, it was an error that did the defendant no harm, and hence he can not complain.

The second question relied upon to reverse the judgment is, the court allowed the plaintiff to produce before the jury a part of the torn clothing which he had on when injured, and this ruling of the court is claimed to he erroneous. We think the admission of such evidence rests in the sound discretion of the court. If the manner in which the plaintiff was injured, or the nature or character of the injury, could be better explained by the production of the torn clothing which the plaintiff was wearing at the time the injury was received, we perceive no reason why such evidence may not be resorted to. The question in regard to the admission of similar evidence arose in Indiana Car Co. v. Parker, 100 Ind. 199, and the court held that the evidence was admissible.

At the request of the plaintiff the court gave the following instruction to the jury:

“The court instructs the jury, that if, under the evidence and the instructions of the court, they find the defendant guilty, then, in estimating the plaintiff’s damages, if any are proved, they have a right to take into consideration not only the loss, expenses.and immediate damage arsing from the injuries received at the time of the accident, but also the permanent loss and damage, if any is proved, arising from any disability resulting to the plaintiff from the injury in question, which ■renders him less capable of attending to his business than he would have been if the injury had not been received, provided they do not estimate said damages at a sum greater than $15,000.”

It is said the instruction is erroneous, because the jury were not instructed to find defendant guilty as charged in the declaration. We do not think the jury could be misled by the instruction. The words “as charged in the declaration,” would be implied from the language used.

It is also urged that the instruction is erroneous, because, in effect, it informs the jury, that if they find the defendant guilty, and if any damage whatever is proven, they may assess any sum they please, providing the amount does not exceed $15,000. We do not think the instruction liable to the objection urged against it. The object of the instruction, as is apparent from its language, was to inform the jury of the different elements of damages for their consideration in making up their verdict, and the last clause was no doubt added to show the extent of recovery under the declaration. We think the last clause of the instruction was drawn in a bungling manner, and the court ought to have stricken it out; but at the same time, it is apparent, from the amount of the verdict, ($2000,) that this clause of the instruction had no effect on the jury, and although we might regard it vicious, it is not ground for- a reversal of the judgment.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.