author: Mr. Justice Magrudeb Mr. Justice Bailey,

text:
    Charles A. Dupee et al. v. Charles P. Swigert, Auditor.

      Filed at Springfield April 5, 1889.

    1. Banks and banking— State Banking law—vote of the people—constitutional requirement. The vote of the people contemplated by section 5, article 11, of the present constitution, which directs that no act of the General Assembly authorizing associations with banking powers shall go into effect “unless the same shall be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law,” is the vote of the people of the whole State, and not of particular localities of the State.
    2. Same—limitation as to population—the statute construed. An application was made to the State Auditor for a permit to organize a bank in the city of Chicago, which has a population of more than ten thousand persons, under “An act concerning corporations with banking powers,” approved June 16/1887. One of the reasons assigned by the Auditor for refusing to grant the permit was, that the act in question does not apply to cities having a greater population than ten thousand. Upon mandamus to compel the Auditor to grant the permission sought, it was held, there is nothing in the Banking law of 1887 which forbids the organization of banks under its provisions in cities of over ten thousand population.
    3. The intention of the legislature in the passage of the Banking law of 1887, as appears from its various sections and provisions, was to make it general enough to apply to cities having a greater population than ten thousand, as well as to those having a less population.
    4. Same—stockholder’s liability—wider Banking law of 1887—consti-tutionality. A clause of section 6 of the Banking law of 1887, providing for individual liability of stockholders, is as follows: “The shareholders of each association formed under the provisions of this act shall be held individually responsible, equally and ratably, and not one for the other, for all contracts, debts and engagements of such person or association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares:” Held, that such provision, being in conflict with section 6 of article 11 of the constitution, was void, but might be rejected, leaving the other constitutional provisions of the act to stand and be executed, and the constitutional provision being self-executing, would fix the liability of the stockholders.
    5. The constitutional provision in regard to the liability of stockholders in banking institutions is self-executing, and needs no legislation to enforce it, and being a part of the organic law, requires no vote of the people to make it more effective. Such provision becomes a part of every banking law. If a banking law fixes a different and less liability, such provision of the act will be void, and this provision of the constitution will take its place.
    This was a petition for a mandamus, filed in this court by the relators, Charles A. Dupee, Noble B. Judah and Monroe L. Willard, against Charles P. Swigert, Auditor of Public Accounts.
    Mr. Charles A. Dupee, for the petitioners:
    As to the proper rules of interpretation of an act of the legislature, see People v. Canal Comrs. 3 Scam. 153; Stribling v. Prettyman, 57 Ill. 371; Perteet v. People, 65 id. 230; Smith’s Com. sec. 715, p. 830; Dwarris on Statutes, 702; Frye v. Railroad Co. 73 Ill. 399; Cooley’s Const. Dim. 55; Waller v. Harris, 20 Wend. 561; People v. Purdy, 2 Hill, 35; 4 id. 384; Penn v. Reid, 10 Pet. 524; Spragins v. Houghton, 2 Scam. 377; Beardstown v. Virginia, 76 Ill. 34; Perry County v. Jefferson County, 94 id. 214; Prince v. Quincy, 105 id. 138.
    An interpretation of the act which should limit its operation to towns of not more than ten thousand population, would defeat the intention of the legislature to enact a general banking law. People v. Hoffman, 116 Ill. 597.
    Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be construed in the nature of an exception. Potter’s Dwarris, 117.

      When a statute creating a right makes certain express exceptions, it by necessary implication excludes all other exceptions. Eldridge v. Pierce, 90 Ill. 474; Gaddis v. Richland County, 92 id. 119; Prince v. Quincy, 105 id. 138.
    No question of policy or expediency which the court can entertain, can require an interpretation of the act as one limited in its scope. Sedgwick on Stat. and Const. Law, 325.
    As to what are local and special laws, see Potter’s Dwarris, 53; Sedgwick on Stat. and Const. Law, 24; People v. Cooper, 83 Ill. 589; Jefferson County v. Jones, 63 id. 531; Devine v. Cook County, 84 id. 592; People v. Holtz, 92 id. 426; People v. Meech, 101 id. 200; Kingsbury v. Sperry, 119 id. 286.
    The act is not local or special, in that it classifies cities and arranges different minimum capital for banks in the different classes. If the first clause of section 11 be, construed as making the act local, special and unconstitutional, that clause should be rejected, and the remainder of the act held valid. People v. Brown, 11 Ill. 478; 67 id. 503; 116 id. 326.
    Mr. George Hunt, Attorney General, for the respondent:
    The entire act must be construed together, and will, if possible, be so construed that all parts of it may stand. Perteet v. People, 65 Ill. 230.
    The meaning of the words used must govern in construing laws, and the intention must be gathered from such words. Richman v. Carstairs, 5 B. & A. 129; Beardstown v. Virginia, 76 Ill. 34; Frye v. Railroad Co. 73 id. 399.
    The provisions of the act do not make it a general banking law, and the legislature, by the change which it made in “the title, conclusively negatives the idea that it intended to enact a general banking law.
    A statute is not special simply because it applies to a class of persons. It is general if it applies to all persons in the State similarly engaged. Hawthorn v. People, 109 Ill. 302; People v. Hoffman, 116 id. 587; Potwin v. Johnson, 108 id. 70.

      When the meaning is plain, the consequences will not be considered. Potter’s Dwarris, 213; Mills v. St. Clair County, 8 How. 569.
    Section 5, article 10, of the constitution of 1848, contained restrictions on the power of the legislature to pass laws conferring banking powers. This was held not to deprive the General Assembly of the power to pass laws granting charters containing some banking powers. (People v. Loewenthal, 93 Ill. 191.) The present constitution has placed still further restrictions on the legislature to confer banking privileges. Const, sec. 5, art. 11.
    Where an act is unconstitutional, the legislature must provide the correction. Courts have no power to do so. Union Building Association v. Chicago, 61 Ill. 439.
    A banking law can not be valid unless the requirements of section 6, article 11, of the constitution, be in some manner made a part of that law. The legislature must adopt that section as part of the law, or incorporate similar provisions, or it must leave the law in such condition that it shall not be inconsistent with section 6, article 11, of the constitution, and so that the court may say the constitutional provision was intended to be a part of the law. This the legislature did not do.
    The constitutional provision can not be considered self-acting, and construed as a part of the law, for the reason the constitution is merely a limitation on the power of the legislature. It does not confer powers, but restrains. It limits the legislature, in passing a banking law, to a law or laws which shall impose on the stockholder the liability declared in section 6, article 11, of -the constitution. The constitution does not, itself, impose penalties or liabilities.
   Mr. Justice Magrudeb

delivered the opinion of the Court:

This is a petition for a mandamus by Charles A. Dupee and others against the State Auditor to compel him to issue to the petitioners “a permit to organize” a bank in the city of Chicago, which has a population of more than ten thousand persons, under “An Act concerning corporations with banking powers, ” passed by the Legislature of Illinois, and approved June 16, 1887. (Laws of Illinois of 1887, page 89).

The Auditor refused to grant permission to organize under the Act upon two grounds as set up in his answer to the petition. The first ground is that the Act in question does not apply to cities having a greater population than ten thousand; the second is, that the provision of the act in regard to the liability of the stockholders is unconstitutional.

We think that both the reasons assigned for the refusal are insufficient, and that the permission applied for should have been granted.

The contention that no bank can be organized in any city, whose population exceeds ten thousand, is based upon the first clause of section 11 of the Act, which reads as follows: “Associations may be organized under this act in incorporated towns, villages or cities of not to exceed five thousand popu-' lation with a capital stock of not less than $25,000.00, and in all cities, villages or incorporated towns of not to exceed ten thousand population with a capital stock of not less than' $50,000.00.” Evidently the design of this clause was to fix a minimum of capital for towns, cities and villages- having a certain designated amount of population, but, when considered-in connection with the rest of the act, it does not restrict the organization of banks to towns, cities and villages, whose population does not exceed ten thousand.

The first ten sections of the act are general in their nature, and express a general intention on the part of the Legislature to provide for the formation of banks and banking associations anywhere in the state, in cities having a population greater than ten thousand, as well as in those having a less population.

The first section says: “it shall be lawful to form banks and banking associations for the purpose of discount and deposit,” etc. Here is no designation of particular cities to which the formation of banks is to be confined. If the construction contended for be correct, the first section would have said: “it shall be lawful to form banks and hanking associations for the purpose of discount and deposit, etc., in the towns, cities and villages having the amount of population hereinafter designated.”

Again, section one provides “that on a ratification of this act by a vote of the people in accordance with the constitution of this state, it shall be lawful to form banks and banking associations,” etc. The provision of the constitution here referred to is Section 5 of article 11, which directs that no act of the General Assembly, authorizing associations with banking powers, shall go into effect, “unless the same shall be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law.” There can be no doubt that the “vote of the people” contemplated by this provision of the constitution is the vote of the people of the whole state, and not of particular localities in the state. In other words, any statute, which authorizes the formation of banking corporations, must be approved, by the votes of the people of the state at large. It follows that the intention of the Legislature to submit the act of June 16,1887, to the votes of the people of the whole state is manifested by the language used in the first section of the act. The petition in this case avers, and the answer admits, that the act in question has been ratified by the votes of the people of the whole state.

But why ask all the people of the state to vote upon a measure which could only interest a part of the people ? If the law under consideration was only to be in force in cities, whose population should not exceed ten thousand, why submit the question of its adoption to the large body of people living in cities having a greater population than ten thousand ? The latter could have no special interest in the organization of-banks of discount and deposit in cities having a population of only ten thousand or less. It might be otherwise if the banks to be formed xvere to be banks of issue, but the act in question confers no power to issue bills to circulate as money.

Section 5 of article 11 of the constitution unquestionably -contemplated that the banking acts, which were thereby required to be submitted to the votes of the people of the state, should be acts sufficiently general in their character to be of interest to all the people of the state and to be applicable in •all parts of the state. That the intention of the legislature in the passage of the act of June 16, 1887, was to make its provisions general enough to apply to cities having a greater population than ten thousand, as well as to those having a less population, is apparent from the provision made in sec-. tion one of the act for its ratification by a vote of the people in accordance with section 5 of article 11 of the constitution.

Section 2 of the Act provides that “when any association ■of persons desire to avail themselves of the provisions of this act, they may apply to the auditor for permission to organize, ■stating their place of business,” etc. What language could ■be more general than this ? Those desiring to organize are not required to state in what city, town or village, having a population of ten thousand or less, their place of business may be located. They are required to'state their place business, w'hether it be in a city containing a greater or a less population than ten thousand. The “association of persons,” which is authorized to apply for permission to organize, “any association of persons,” whether living in a city of one hundred thousand inhabitants, or in a city of only ten thousand inhabitants.

The third section provides for subscriptions to the capital stock and for the election of directors; the fourth, for the organization of the board of directors, the appointment of officers, fixing salaries, making by-laws, taking by the directors of an oath prescribed by the Auditor, keeping books of record and furnishing copies of the same and lists of the stockholders to the auditor, etc.; the fifth section provides for an examination by the auditor into the affairs of the bank after the directors have organized and the capital stock has all been paid in, for the issuance of the Auditor’s certificate under seal authorizing the association to commence business, for the recording of said certificate which is made evidence in all courts of the existence and authority of the corporation to do business, which said fifth section closes with the following words: “Upon the recording of said certificate and permit said bank shall be deemed fully organized and may proceed to business;” the sixth section provides for the liability of the shareholders; the seventh, for the making under oath and publication of quarterly reports to the auditor as to the resources and liabilities of the bank; the eighth section provides for examinations by the auditor into the affairs of the bank at least once in each year or oftener together with power to examine the officers, agents, etc., under oath; the ninth section provides that associations under the act may be bodies corporate and politic with power to sue and be sued, to have a common seal, to own real estate necessary to be used in carrying on business, etc.; the tenth section fixes the limit to which the association shall be confined in lending its funds, etc.

It will thus be seen that, before the eleventh section is reached, the first ten sections provide in general terms for the organization of banks, and prescribe all the machinery for such organization. “Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be construed in the nature of' an exception.” (Potter’s Dwarris’Stat. p. 117). A general intention to permit the organization of banks in' all the cities of the State is expressed in the first ten sections, and if any particular intention is expressed in the first clause of section 11, which is incompatible with such general intention,' it is to be construed as an exception thereto. The words of section 11 as above quoted are words of limitation and restriction, and not words of grant. But the limitation has reference to the capital stock, and not to the location of the bank.

The clause, in which the words of limitation occur, does not restrict all the previous provisions of the act to the organization of banks in towns, cities or villages, whose population does not exceed ten thousand; but its meaning is, that banks organized in towns, villages or cities, whose population does not exceed five thousand, must have a minimum capital of at least $25,000.00, and that banks organized in towns, cities or villages, whose population is in excess of five thousand but does not exceed ten thousand, must have a minimum capital of at least $50,000.00; while banks organized in towns, cities or villages, whose population is more than ten thousand, are not required to have any specified amount of capital. Banks are thus divided by this restrictive clause into three classes, each distinguished from the others by the amount of population of the town, city or village where it is located, and by the nature of the provision made for it upon the subject of capital stock.

Whether the classification here indicated be a classification of banks, based upon the amount of population in the places of their location and upon the amount of capital paid into their treasuries, or a classification of towns, cities and villages, upon the basis of differences in population and differences in the character of the banks which do business in them, in either case the part of the act, which provides for such classification, is obnoxious to the constitutional prohibition against special legislation. The classification is purely arbitrary, and has no foundation in reason or justice. There are .no material distinctions between the things classified, and it is entirely feasible to apply to them all a single uniform rule.

Any considerations, which would make it wise or proper to restrict a bank in a city of five thousand inhabitants to a minimum amount of capital, would make it equally wise or proper to apply such restriction to a hank in a city of larger population. If persons living in a city, whose population is more than ten thousand, have the right to organize banks without restriction or limitation as to the amount of capital to be paid in, there is no reason why the same right should not be exercised by persons living in cities, whose population is only ten thousand, or five thousand. The charter will inform the public what the amount of capital is, and, if it is all paid in as provided in the charter, the public is protected, so-far as that matter is concerned.

By the first clause of section 11 the privilege of doing, a certain kind of business is subjected to conditions, which have no other basis than the mere accident of residence; men, who live in a place of a certain size, are permitted to organize a banking corporation if they comply with certain terms, while men, who live in a place of a different size, may so organize without the imposition of any terms. This is special legislation of a most serious and unjust character.

But it does not follow, that the whole act must fail, because the restriction thus contained in section 11 is unconstitutional. Whether or not an unconstitutional clause or section can be taken out of an act, so as to permit the other clauses and sections to continue in force, will depend upon the relations of the former to the latter. If the rejected clause or section is so independent of the other provisions, that, without it, the latter are complete and fully capable of execution, the act will be “construed the same as if the void part had never been inserted.” (Myers v. People, 67 Ill. 503; People v. Hazelwood, 116 id. 326; Cooley’s Cons. Dim. pp. 177-179.)

A careful inspection of the banking act of June 16, 1887, will show that the restrictive provision, which fixes the minimum amount of capital stock for banks in certain towns, villages and cities, is not necessary to the symmetry or perfection of the balance of the act. It is not so connected with or dependent upon, either the other sections, or the remaining portion of - section 11, that it can not be eliminated without interfering with their force and effect.

If the first clause of section 11, as above quoted, and the word, “and,” which follows it, and also the clause, which reads thus: “if the reduction should not bring the capital below the provision of this section;” be stricken from section 11, it will be a complete section in itself, and will read as follows: “Should the capital of any bank organized under this act become impaired, the Auditor shall give notice to the president to have the impairment made good by assessment of the stockholders or a reduction of the capital stock of such bank; and if the capital stock of said bank shall remain impaired for thirty day's after notice by the Auditor, "he shall have power, and it is hereby made his duty, to enter suit against each stockholder in the name of the People of the State of Illinois,” etc. We are, therefore, of the opinion that the clause in question, and the words following it, as above specified, should be rejected as being unconstitutional and void, and that the balance of' the Act should be permitted to stand subject to the change arid qualification hereafter indicated.

, The second ground, upon which the auditor refused to issue to petitioners the “permit to organize” provided for in the second section of the Act, is the unconstitutionality of the first clause in section six. That clause reads as follows: “The shareholders of each association formed under the provisions of this act shall be held individually responsible equally and ratably, and not one for the other, for all contracts, debts and engagements of such person or association to the extent of the amount of their stock therein-at the par value thereof, in addition to the amount invested in such shares.”

Under this provision, as we understand it, a claim against a bank must be apportioned ratably among the stockholders; each stockholder is liable only for his ratable share and no more; the owner of such claim must sue each stockholder for the latter’s ratable proportion, and, if one of the stockholders is insolvent, his share can not be collected of the other stockholders, but the creditor must lose it.

The clause of section 6 of the act, as thus interpreted, is in conflict with section 6 of article 11 of the constitution, which is as follows: “Every stockholder in a bánking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.” Under the section of the constitution thus quoted, every stockholder is liable for the debts of the bank to an amount equal to twice the amount of stock held by him, and may be sued for such amount by any creditor, whose claim is large enough to cover it; the question of contribution must be settled between the stockholders themselves.

But the elimination of the first clause of section 6 of the act by reason of its unconstitutionality will not render the remaining provisions incapable of execution. Section 6 of article 11 of the constitution must be substituted for the first clause of section 6 of the Act, and must be regarded as being a part of the Act itself, and as bearing the same relation, whether of dependence or independence, to the balance of the law, as would be sustained by the unconstitutional clause, if it were permitted to stand.

The constitutional provision in regard to the liabilities of stockholders in banking institutions is a self-executing provision, and needs no legislation to enforce it. Being a part of the organic law, it requires no popular election to make its effect more binding. No banking Act can go into operation in this state of which the constitutional provision in question shall not be a part. By virtue of the inherent power of the constitution itself, such provision is grafted into every banking law, which is passed by the legislature or submitted to the votes of the people. This doctrine was announced by the Supreme Court of the United States in East St. Louis v. Amy, 120 U. S. 600, and followed by this court in City of East St. Louis v. The People, 124 Ill. 655. Accordingly the liability of the stockholders under the act of June 16,1887, is such as is fixed by the constitution; and that part of the Act which attempts to establish a different liability from the one named in the constitution, is void.

The writ of mandamus will be awarded in accordance with the prayer of the petitioners.

mit grante^

Mr. Justice Bailey,

dissenting:

I fully concur in the opinion of Mr. Justice Magruder, except so far as it assumes to pass upon the constitutionality of those provisions of section eleven of the act fixing the minimum amount of the capital stock of banking corporations in towns, villages and cities having a population of not exceeding five thousand, and also in those having a population not exceeding ten thousand, and holding those provisions to be unconstitutional. The opinion holds, and I think correctly, that it is the general scope and intention of the act, to permit the organization of banking corporations in all towns, villages and cities in the State, irrespective of their population, and that the provisions of section eleven must be construed as words of limitation and restriction and not words of grant. Those provisions must therefore be held to relate solely to communities having only the population therein specified, and they can therefore have no application to cities having a population exceeding ten thousand.

The present ease involves the application of the act to the organization of a banking corporation in the city of Chicago, having a population much larger than that specified in section eleven. The provisions of that section have therefore no application, and so long as the residue of the act may be held valid even though section eleven should be held unconstitutional, the question of the unconstitutionality of that section can be of no materiality in deciding the case before us. The relators are no more entitled to the writ of mandamus upon one view of that question than upon the other. When the question of the constitutionality of that section arises in a case involving the organization of banking corporations in any of the towns, villages or cities specified in section eleven with a capital less than the minimum therein prescribed, it will be time enough to determine whether the limitations prescribed in that section are invalid or not.

Though unable, to the extent above indicated, to yield my assent to the opinion of Mr. Justice Magruder, I concur in his conclusion that a peremptory writ of mandamus should be awarded.

Craig, C. J., and Shope, J., dissenting.

Mr. Justice Baker : I concur in the views expressed by Mr. Justice Bailey.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Alfred Gannon v. The People of the State of Illinois.

      Filed at Mt. Vernon April 5, 1889.

    1. Oruhnaii law—finding a new indictment—to obviate defects in the original. Where defects are found in an indictment, it is proper to apply to the grand jury, and have that body return a new one, avoiding the defects in the first; and it is no good ground of abatement that the former has not been actually discontinued when the latter is returned.
    2. Same—reasonable doubt. In a criminal case, the court, for the prosecution, told the jury to give the prisoner “the benefit of any reasonable doubt arising out of the evidence in the caseHeld, that there was no error in confining the reasonable doubt to such as should arise from a consideration of all the evidence.

      3. Same — inferences and presumptions—of instructions in respect thereto. On atrial for murder, the defendant asked the court to instruct, that “while circumstantial evidence is legal and proper evidence in criminal cases, yet no inferences or presumptions should be indulged in by a jury, that do not, in their minds, necessarily arise from circumstances proved,” etc.: Held, that the vice of the instruction was the use of the word “necessarily,” and that it was properly refused.
    4. On a prosecution for murder, where the evidence was circumstantial, the defendant asked the court to instruct the jury as follows: “And if it is possible to account for the death of the deceased upon any reasonable hypothesis other than that of the guilt of the defendant, then it is your duty, as jurymen, to so account for it, and find the defendant not guilty,”—which the court refused, but it was held that the refusal worked no injury to the defendant, because such instruction was substantially embodied in several others.
    5. Same—twice in jeopardy—requisites of the plea. A special plea to an indictment of a former jeopardy must show how and in what manner the prisoner was put in jeopardy.
    6. Same—new trial granted—former conviction no bar. If a new trial is granted on the defendant’s application in a criminal case, the trial will not be a bar to a second trial on the same or an amended indictment.
    7. Same—calling on defendant before sentence. While it is the better practice to call upon the defendant to say why he should not be sentenced, yet the omission to do so is no ground for a reversal in any case.
    8. Same—facts sustaining conviction for murder. In this case, the evidence, which is chiefly circumstantial, is reviewed by the court, and held sufficient to sustain a verdict of murder against the accused.
    9. Evidence — circumstantial. Circumstantial evidence is of two kinds, viz.: Certain, or that from which the conclusion in question necessarily follows; and uncertain, or that from which the conclusion - does not necessarily follow, but is probable, only, and is obtained by a process of reasoning.
    10. Same—in criminal case—exclamation of (mother in presence of accused. On the trial of one for the alleged murder of his step-son, it appeared that the accused and the .boy went away from their home together. On the return of the accused to the house he found his wife’s brother there. The two walked away in company, and came upon the dead body of the boy. The accused and his brother-in-law came back together, the latter going into the house and informing his sister that her boy was drowned, whereupon the mother exclaimed: “I knew it, I knew it; my heart has ached for two hours. Oh, Alfred!”—the accused. At this point, the latter, who was lingering behind, but in hearing, dodged into the house and caught his wife, and told her to “hush, not
      take on.” It was held, the exclamation of the mother was admissible in evidence, as giving character to the conduct and the cautionary words of the accused.
    11. Same—conversation between husband and wife. While the law will not permit husband and wife to testify as to their confidential communications with each other, yet a third person hearing a conversation between husband and wife may give evidence of it.
    12. PRACTICE-—improper remarles of counsel to jury—time to object— bill of exceptions. If a party desires to assign for error improper remarks of counsel to a jury, against one tried for murder, or the ruling of the court in giving or refusing instructions in regard to such remarks, he must object at the time to the improper utterances, and take an exception, and such objection and exception must be preserved in the bill of exceptions. A copy of counsel’s speech is no part of the record.
    13. Assignment of ebboe—of that which is favorable to the party complaining. A defendant in a criminal case can not assign for error the giving of an instruction more favorable to him than he was entitled to. On the trial of one for murder, the court instructed the jury, for the People, defining voluntary and involuntary manslaughter. The jury found the defendant guilty of murder. It was held, that the instruction could have had no injurious effect.
    14. Instetjction—must have some basis in the record. Instructions must be based upon the evidence, and instructions based upon the supposed remarks of counsel, about which the record is entirely silent, and to which the bill of exceptions makes no reference, will not be considered by this court.
    Writ of Error to the Circuit Court of Fayette county; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. F. M. Guinn, and Messrs. Henry & Fouke, for the plaintiff in error:
    The want of any notice is a circumstance in favor of innocence. Clough v. State, 1 Neb. 320; Mills on Circumstantial Evidence, 43.
    ' The court erred in allowing proof of the wife’s declarations. When informed that her boy was drowned, she exclaimed, “I knew it, I knew it; my heart has ached for two hours. Oh, Alfred!” His reply was, “Hush, not to take on.” As to the improper remarks and utterances of counsel for the proseention, see Combs v. State, 75 Ind. 215; Cantwright v. State, 16 Texas, 473; State v. King, 64 Mo. 591; State v. Lee, 66 id. 165; Yoe v. People, 49 Ill. 410; Dickinson v. Burke, 25 Ga. 228.
    The court should have instructed the jury to disregard such remarks. Kennedy v. People, 40 Ill. 488.
    The court erred in giving the instruction defining voluntary and involuntary manslaughter. The accused should have been convicted of murder, or acquitted. There was no evidence to support the instruction. State v. Mahly, Am. Crim. Rep. 183; 58 Mo. 315; State v. Alexander, 66 id. 148; Franz v. Hilterbrand, 45 id. 131.
    The court erred in giving the third instruction. It is abstruse and argumentative. (Dunn v. People, 109 Ill. 644.) We do not think, to justify a verdict.of not guilty, a doubt must arise out of the evidence. The doubt may arise from a want of evidence.
    The court ought not to have put the plaintiff on trial a second time.
    Mr. George Hunt, Attorney General, and Mr. James M. Alberts, State’s Attorney, for the People :
    The two juries have passed upon the evidence. The rule is, not to set aside a verdict unless it is clearly wrong. Bassett’s Crim. Pl. and Pr. (2d ed.) 524; Monc. Crim. Law, sec. 9; Wharton’s Grim. Pl. and Pr. (8th ed.) 813.
    A third person who happens to overhear a confidential communication between r, husband and wife, may be examined as to such conversation. Wharton’s Crim. Ev. (8th ed.) sec. 398.
   Mr. Justice Magruder

delivered the opinion of the Court:

Plaintiff in error was indicted for the murder, on April 5, 1886, of Hansbrough McCaslin in the county of Fayette. The indictment contains two counts. The first count charges the prisoner with having strangled the deceased; the second count charges him with having cast, thrown and pushed the deceased into a creek or pond of water, whereby he was choked, suffocated and drowned. The trial took place in March, 1888, before the Circuit Court of Fayette County, and resulted in the finding of a verdict of guilty. The jury, by their verdict, fixed the punishment at imprisonment in the penitentiary for a period of twenty years. Judgment was rendered on the verdict, and plaintiff in error prosecutes his writ of error from this court.

It is assigned as error, that the verdict is not sustained by the evidence, which is entirely circumstantial in its character.

The deceased, Hansbrough McCaslin, was a boy, between six and seven years old at the time of his death, and was the child of Ann Gannon, the wife of plaintiff in error. He was familiarly called “Hank,” and appears to have been an illegitimate child. On November 1,1885, plaintiff in error, being then not over twenty-four years of age, married Ann McCaslin, the mother of this boy, who is said by the witnesses to have been between five and six years old at the time of the marriage. Sometime in February, 1886, plaintiff in error, with his wife and her boy, took up his abode in a log house, containing one room, situated about 200 yards east of Pvamsey Creek in Fayette county, and in a field of ten or twelve acres of cleared land.

On the morning of April 5, 1886, at half past eight o’clock, plaintiff in error went with the boy from the house down to the creek for the ostensible purpose of fishing, leaving his wife alone at the house. He returned to the house on horseback without the boy at about twelve o’clock, making no inquiry, as to whether his stepson had returned, and no remark as to his absence. There is no living witness, except himself, of what took place between him and the boy, while he was gone. Upon his return he found his wife’s brother, Benjamin F. McCaslin, in the house. The latter had arrived on horseback about fifteen or twenty minutes before Gannon’s return-, had tied his horse to the fence outside of the yard, and was sitting in the room with his sister. Upon coming up, Gannon laughingly asked his wife, if he could “get dinner and his horse fed.” “She told him, that she supposed he could.” He and his brother-in-law at once went to the stable with their horses. When they came back into the house, his wife asked him where the fire shovel was, that he had taken away “in the morning with fire to set (on fire) some log heaps that he was burning.” He replied, that he had left it at the creek and “told the boy to bring it when he came up.” He asked his wife, who was cooking the dinner, if he would have time, before dinner was ready, to go out and mend up some log heaps. She told him that he could go, if he did not stay too long. He then invited his brother-in-law to go with him to see his “corn ground,” and they walked out together. They passed two log heaps. MeCaslin, who appeared to be uneasy about the non-appearance of his nephew, looked down the creek to see if the boy came. He asked Gannon where he had left the boy, “and he said he left him down below there fishing, and I made the remark ‘he hangs on well for a little fellow.’ ” Gannon then proposed that they go down and see what he was doing.

They crossed the fence at a point about fifty yards from the bank of the creek, went westward towards the bank, and then southward down the creek, about one hundred yards. Gannon remarked: “that creek looks awful, looks almost like a river.” They discovered the boy’s clothes on the ground. When they were 20 or 30 feet north of the clothes, Gannon said: “there is his clothes on the bank.” “He appeared to be somewhat embarrassed over it.” They passed about two feet east of the clothes, and southward down the creek 39 feet, as was ascertained by a subsequent measurement. Here they found the lifeless body of the boy in the water.

A tree had fallen into the creek, whose roots projected above the surface of the water. The body, which was totally naked, had been caught in the roots and was supported by them, so that it appeared near the surface, one shoulder being above the water. Gannon asked MeCaslin if he could get the body out, but the latter declined to allow it to be touched, saying that a coroner’s inquest must be held. Upon being told this, Gannon shed tears, and remarked that it would kill his wife.

The boy’s clothes—pants, waist, shoes, stockings, cap—lay upon the east side of the creek, 12 J feet east of the edge of the water. There was an upper bank, with an abrupt descent therefrom to the sand below, before coming to the water. Two fish hooks had been set. One fish pole had been stuck into the bank at a point directly west of and opposite the clothes. Twenty feet south of this, another fish pole had been stuck into the bank. The shovel was sticking in the upper bank a little below the clothing. The ground was soft and muddy. The water of the creek was muddy, and the current was west of the place where the body was found, the water at that point being comparatively still.

McCaslin and Gannon went back to the house together. As they entered the door, Gannon fell back a little, while McCaslin told his sister, that Hank was drowned. McCaslin says: “What he said was in response, I presume, to what his wife said. I came up on the door-step. * * * I told her that

the child was drowned; she says “I knew it, I knew it; my heart has ached for two hours, Oh Alfred, ” and, at that point he dodged in and caught her and told her to ‘hush, not take on.’ ” McCaslin left Gannon with his wife, and went after two neighbors, Fish and Williams, who were mending a fence at the adjoining farm. Fish and Williams went to the creek, examined the situation and surroundings, took the body from the water, put some of the clothes upon it, carried it to the house, and placed it in the mother’s lap. Other neighbors went to the place where the body was found, and made examinations and measurements before sun-down. The house was not visible from the point, where the clothes were found, on account of the timber and brushwood, which intervened. Some 20 or 30 steps away from the clothes, the roof of the house might be seen.

It is in proof, that on a chilly, rainy day in th# middle of February, the plaintiff in error drove the boy out of the house. This occurred in the morning about ten o’clock. Gannon and another brother-in-law, named Eobert McOaslin, were at work, making boards about 200 yards from the house, but in sight of the door. Gannon made two trips to the house. During one of his absences, the boy was with his uncle; he had on pants and a waist, was bare-headed, and his bare toes protruded from his shoes; he began to shake and shiver, and wanted to go to the house, but wanted his uncle to go with him; he, however, went alone; shortly afterwards he came back to his uncle crying, Gannon standing in the door-way and looking at him; his uncle carried him to Eamsey; he remained there several days, and then Gannon came after him and took him back. Gannon admits, that, on that morning he and his wife had had a quarrel about some other woman. While denying, that he drove the boy out, he says that he told his wife she could leave and take her son and her brother with her, and that the boy went out and down to the place where his uncle was. Several witnesses for the defense testify, that they never witnessed any acts of unkindness on the part of plaintiff in error towards the boy.

Plaintiff in error says, that he left the house with the boy on the morning of the latter’s death at about half past eight o’clock; that he stopped to fix two log-heaps; that he may have been at the first log-heap a half an hour or an hour, but can not tell how long he was at the second; that they also stopped to get bait under or near the fence; that the boy was fishing with the north pole and he with'the south pole; that he left his' fishing pole at about ten o’clock, and went west along the south side of the fence, mending the fence, pulling the bushes from a slough that passed under the fence, etc.; that he caught his horse, which was in the enclosure with a halter on, and rode him up to the house; that, when he left the fishing-place, the boy was holding the north pole, fishing with it. In view of the time spent at the log-heaps before ten o’clock, and at the south fence after ten o’clock, it is apparent that very little time could have been spent in fishing, according to the account given by .the prisoner of his own movements.

The theory of the defense is, that, after his step-father left him, the boy took off his clothes and went into the creek, and. was drowned. To support this theory, testimony was introduced to show that the boy was fond of going into the water. This testimony consisted mainly of the statements of persons, who had seen him with his pants rolled up, wading in a- ditch near the railroad track, and in a pond on somebody’s premises.

In opposition to the theory of the defense, it was shown by the prosecution, that, on the morning of April 5, the weather was cold, there was ice in the sloughs, the snow was melting off, and the creek was swollen with the spring floods. Would a boy be likely to attempt to swim in the water under such circumstances ? It was further proven by the state, that there were tracks leading from the place, where the clothes were found, to the water’s edge; that these were shoe tracks, or the tracks of shod feet; that there were no barefoot tracks from the clothes to the water; that the ground was soft enough to show' such tracks, if the boy had taken his clothes off and walked barefooted to the creek; that the heavy imprint of a man’s, boot or shoe heels was in the sand near the water’s edge, and near them the imprint of a boy’s hand and fingers, with lines extended therefrom in the sand for about two feet, as though the boy had been pushed into the water, or had struggled to' get from the water and had been pushed back.

When the body was found, sediment an eighth of an inch thick had settled over it, except “the point of the shoulder where it waved out of the water.” This circumstance would go to show that the body had been in the water some considerable time. The place, where plaintiff in error claims to have begun mending his fence, after leaving the fishing ground, was only distant from the fish poles 60 or 70 yards. t He could have seen the deceased if the latter had gone to the house to take the shovel at any time between ten o’clock and twelve o’clock. He did not go back to the fishing place on the bank of the angry creek to discover why the hoy staid there so long; The left side of the boy’s neck was found to be purple, and there was a purple place six or seven inches long on the left thigh.

The medical witnesses, whose testimony is in the record, did not examine the body, and they base their opinions entirely upon descriptions of the body as given by others. It is difficult to determine from what they say, whether the discoloration was the effect of wounds previously received, or not. It would seem to be true, however, that the discoloration, which proceeds from the natural decay of the body, does not disappear after it comes, and spreads more and covers a larger surface, than does the discoloration that results from a bruise. 'Thomas H. Patton, who examined the body on the day it was ■found, and saw the purple spots on the thigh and left side of "the neck and part of the jaw, says that these spots on the ■cheek or jaw had passed away and could not be detected on the day when the body was interred.

The prosecution also introduced testimony tending to show that, on the afternoon of April S and on the next day, the plaintiff in error kept close by the side of his wife, and prevented her from communicating with other persons. He did not allow her to be with others unless he was present. At night when his wife and another woman lay across the bed, he lay between them," although there was another bed in the room. On the day of the coroner’s inquest, he followed his' wife to the part of the yard where the women were gathered, and kept away from the place where the men had collected together.

The defense introduced evidence to show, that the plaintiff in error was a peaceable, law-abiding citizen. The state, however, proved that he once had a difficulty with an old man, named Strickland, and struck him; that he also had a difficulty with a man named Dickerson and knocked him down, and was fined for the offense by the police magistrate; that he was indicted and tried for burglary, but was acquitted; that, since his arrest on the charge of murdering his step-son, he escaped from jail and fled to Missouri, where he was re-captured after being shot in the arm by the officers of the law, and that, while on his way from Missouri to Illinois in charge of the officers, he jumped from the train, while it was travelling at the rate of twenty miles per hour, and was again re-captured.

We can not further comment upon the testimony. It is circumstantial, but, after a careful examination of it, we can not say that the verdict is against the weight of it. The jury saw the witnesses and heard them testify. We find nothing to show,, that the jury was influenced by prejudice or passion. This is the second trial. Upon the first trial plaintiff in error was | found guilty, and his punishment was fixed at fourteen years1 in the penitentiary.' A new trial was granted him, and a sec-, ond jury have found him guilty and fixed his punishment at' a longer period.

It is also assigned as error, that proof was admitted of Mrs.' Gannon’s exclamation, when she first learned that her son was dead. We think it was properly admitted as explaining the prisoner’s language at that time. The State had the right to show what his-utterances were, and what his conduct was, at the time of the discovery of the body and immediately thereafter. As soon as he came into the presence of his wife, he dodged into the house and caught her, and told her “to hush, not take on.” These words were addressed to her in response to something she' said to him, and can not be fully understood without knowing what she said. The command to “hush” was: a command to her to refrain from saying what she had begun1 to give utterance to. The meaning of the command, as showing what he desired to have concealed or unspoken, could only' be explained, when considered in connection with the words' made use of by her. He told her not to “take on.” This expression was meaningless, unless it could be determined how and in what way she was “taking on,” by admitting proof of the words she addressed to’her husband. While the law will not permit husband and wife to testify as to their confidential communications with each other, yet a third person, hearing a conversation between husband and wife, may give evidence of it. (Commonwealth v. Griffin, 110 Mass. 181; Wharton’s Crim. Ev. (8th ed.) sec. 398).

The next error assigned is, that one of the counsel for the prosecution was permitted to make improper utterances in his address to the jury, and that certain instructions asked by the defense, which cautioned the jury against the influence of such utterances, were refused by the trial court. There is nothing in the bill of exceptions, or in the record anywhere, to show either what remarks were made by counsel, or that any objection was made to such remarks, or any exception taken thereto. Counsel for the defense have presented - us with what they claim to be a copy of the speech made on the trial by one of the attorneys for the prosecution. But we can not consider it, because it is no part of the record. Instructions must be based upon the evidence, and instructions, based upon supposed remarks of counsel, about which the record is entirely silent and to which the bill of exceptions makes no reference, are properly refused.

It is also objected, that the court gave the jury two instructions defining voluntary and involuntary manslaughter. It is not claimed that the definitions are incorrect, but that the instructions were improper because the crime, if crime there was, could be nothing but murder. We fail to perceive how the plaintiff in error was injured in any way by calling the attention of the jury to an offense, less in degree than that with which he was charged. The instructions complained of were rather favorable to him than otherwise. They could not have had any injurious effect upon the minds of the jury, as they found plaintiff in error guilty of murder, and not of manslaughter.

The instruction, given for the prosecution, upon the subject of reasonable doubt, is complained of. This instruction is substantially the same as instruction No. 12, commented upon in Spies et al. v. People, 122 Ill. 251, and is sustained by that case, and the cases there referred to. The main objection urged against it is, that it tells the jury to give the prisoner “the benefit of any reasonable doubt arising out of the evidence in the case.” This conforms to the definition of reasonable doubt already laid down by this court in May v. People, 60 Ill. 119, where we said: “A reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the graver transactions of life,, would cause a reasonable and prudent man to hesitate and pause.”

The defense asked an instruction, which contained the following words: “And if it is possible to account for the death of the deceased upon any reasonable hypothesis other than that of the guilt of the defendant, then it is your duty; as jurymen, to so account for it, and find the defendant not guilty.” The court refused the instruction, and such refusal is claimed to be error. Wharton says, the doctrine that, “to justify a conviction on circumstantial evidence, it is necessary to exclude every possible hypothesis of innocence,” is based' upon “a series of dicta.” (Wharton’s Crim. Ev. (8th ed.) sec. 10; Shultz v. The State, 13 Tex. 401). Wills says: “In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” (Wills on Circum. Ev. p. 149). We do not deem it necessary to the decision of this case to discuss the question. Assuming the principle, announced in the refused instruction, to be correct, we can not say that its refusal-worked any injury to the defendant in this case, because it was substantially embodied in several other instructions, which were given for him and at his request.

In one of the instructions given for the defendant, the court said to the jury: “To warrant a conviction of the defendant, he must be proved to be guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent, when all the evidence in the case is considered together.” In another, the court said: “Before a jury will be justified in returning a verdict of guilty, the circumstances so relied upon to justify a conviction must be so strong, pertinent and convincing as to exclude every reasonable doubt of his innocence.” In still another the court said: “The jury are instructed that, when circumstances alone are relied upon by the prosecution for a conviction, the circumstances must be such * * * as are reconcilable with no other reasonable hypothesis than that of the defendant’s guilt, and must satisfy the mind of the jury of the defendant’s guilt beyond a reasonable doubt.”

The Court also refused to give for the defendant an instruction to the effect, that, “while circumstantial evidence is legal and proper evidence in criminal cases, yet no inferences or presumptions should be indulged in by a jury, that do not, in their minds, necessarily arise from the circumstances proved, ” etc. There was no error in the refusal. The vice of the instruction consists in the use of the word, “necessarily.” The inferences, to be drawn by the jury from the circumstances proved, must be such as to satisfy their minds of the guilt of the defendant beyond any reasonable doubt. The conclusion, that the defendant is guilty beyond a reasonable doubt, may not follow necessarily from the proven circumstances, but may be obtained therefrom by probable deduction. Greenleaf says: “Circumstantial evidence is of two kinds, namely, certain, or that from which the conclusion in question necessarily follows; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by process of reasoning.” (1 Greenl. on Ev. (14th ed.) sec. 13a.) The conclusion that death has resulted from murder, rather than from accidental drowning, may be reached by a process of reasoning, so as to leave in the mind no reasonable doubt as to its correctness.

Complaint is made that the defendant was not asked by the court, before judgment and sentence, if he had anything to say why sentence should not be pronounced against him. There is no statute requiring the court to so call upon the defendant. The record in this case contains the following: “Neither defendant nor his counsel having anything further to say why sentence should not be pronounced against him by the court on the verdict of guilty rendered by the jury in this cause, it is therefore ordered,” etc. It would appear from this recitation, that the defendant had a chance to speak if he had desired to do so. "We disposed of this question, so far as minor felonies are concerned, in Bressler v. People, 117 Ill. 422.

We are of the opinion, that, while it is a better practice to call upon the defendant to say why he should not be sentenced, yet the omission to do so is no ground for reversal in any case.

Such omission does not affect the verdict, because defendant is never called upon to speak until after verdict.

One of the reasons given for the origin of the practice in England is, that a person on trial for felony was not allowed counsel. Here, the accused always has counsel to represent him.

Another reason assigned in the books for the observance of the practice is, that a motion may be made in arrest of judgment. Under our system, the motion in arrest and the motion for new trial are disposed of before the time for the sentence arrives. In the case at bar, defendant made motions for new trial and in-arrest of judgment, and they were both overruled. It is necessary that the prisoner be present when the verdict is rendered, and that he be present when sentence is pronounced, and if the record shows, as the record in the present case does show, such presence of the prisoner, it is not perceived how his rights are prejudiced by a failure to observe the ceremony contended for. It has been said that the defendant is thereby enabled to lay before the court certain statements, which may have the effect of mitigating his punishment. But, under our statute, the extent of the punishment is fixed by the jury in their verdict, and not by the court at the time of sentence. In quite a number of the States the failure of the record to show the observance of the ceremony has been held not to be ground for a reversal, though it is held that the form is one proper to be used. (Wharton’s Crim. Pl. and Pr. (9th ed.) see. 906; State v. Hoyt, 47 Conn. 518; State v. Bell, 27 Mo. 324; Sarah v. The State, 28 Ga. 576.)

Plaintiff in error also assigns as error, that the trial court erred in refusing to admit the record of the former trial of this case to go to the jury as evidence of former jeopardy. The present record recites, that defendant entered his special plea of former jeopardy, which was demurred to by the State, and the demurrer was sustained. But the plea itself is nowhere set forth in the record now before us, and we have ‘no means of knowing what it was. Such a plea must show how and in what manner the prisoner was put in jeopardy. (Wharton’s Grim. PI. and Pr. sec. 520, 9th ed.)

But, independently of the question of the absence of the plea, the record of the former trial would have been no bar if it had been admitted. It showed that defendant was tried, convicted and his punishment fixed by the verdict at fourteen years in the penitentiary, but it also showed that the verdict was set aside and a new trial granted upon his own motion. If a new trial be granted, on the defendant’s application, this is in itself no bar to a second trial on the same, or an amended indictment. (Wharton’s Crim. Pl. and Pr. (9th ed.) sec. 435a.) In State v. Blaisdell, 59 N. H. 328, it was said: “The verdict was set aside, on motion of the respondent, for the misconduct of a juror. The trial was illegal and went for nothing, and the second trial was not a second jeopardy.”

After the new trial was granted, and at the February Term, 1888, the case was submitted to another grand jury, who returned a new indictment, and the second trial took place under this new indictment. It is really an amended indictment, and is the same as the one, under which the first trial took place, with the exception of some changes in the phraseology. Plaintiff in error complains, that the court below erred in proceeding to trial under the second indictment, before the first one was disposed of. No error was committed in the respect here indicated. In Commonwealth v. Drew, 3 Cush. 279, Chief Justice Shaw said: “Where it is found that there is some mistake in an indictment, as a wrong name or addition, or the like, and the grand jury can be- again appealed to, as there can be no amendment of an indictment by the court, the proper course is for the grand jury to return a new indictment, avoiding the defects in the first. And it is no good ground of abatement, that the former has not been actually discontinued, when the latter is returned.”

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    George W. Guild et al. v. Thomas M. Hull, Conservator, et al.

      Filed at Ottawa April 3, 1889.

    1. Ohahcebt—determining the facta—power and duty of the chancellor—trial hy jury—whether verdict conclusive or merely advisory. In chancery cases, except where the submission to a jury is required by the law or the rules of chancery practice, the chancellor is the judge of the weight of the evidence and of the ultimate facts established by it.
    2. If the chancellor, in an ordinary, chancery suit, submits controverted questions of fact to a jury, as he may do, the verdict or finding of the jury is advisory, only. He may adopt the verdict, or set the same aside and re-submit the question to another jury, or he may disregard the verdict and enter such a decree as, in his judgment, equity demands. He may enter his decree after setting the verdict aside, or without setting it aside.

      3. Where the chancellor submits to a jury the questions of the sanity of the maker of a deed, and undue influence in procuring the execution of the deed, and the jury finds that the maker was not sane and the fact of undue influence, and the chancellor enters a' decree setting aside the deed “pro forma, and pro forma only,” this will preclude the idea or presumption that he acted upon his own judgment of the truth of the allegations upon which the deed is set aside, and will be error, as the parties are entitled to the judgment of the chancellor and his consideration of the evidence, notwithstanding the verdict.
    4. Sake—decree upon verdict—questions of evidence and instructions arising. Where a decree is based upon the verdict of a jury alone, and not upon the independent judgment of the chancellor, it will be reversed if the finding of the jury was the result of, or was influenced by the admission of, improper evidence or improper instructions. In such case, the effect is the same as though the decree was based on improper evidence or a misconception of the law.
    5. Sake—submitting questions of fact to a jury—in chancery—propriety of so doing. In cases where the evidence is voluminous and conflicting, it is eminently proper that an issue should be framed and submitted to a jury, and such practice should be adopted by the courts in all cases involving the question of insanity.
    6. Evidence—declarations of a grantor—to impair the title of his grantee. On a bill to set aside certain deeds on the ground of mental incapacity and undue influence; and the trial of the issues before a jury, the court allowed the complainants to prove the declarations of the grantor that the grantee and the grantor’s wife were trying to force him to deed his property to the grantee: Held, that the admission of such evidence was error.
    7. The declarations of a grantor, made either before or after the execution of his deed, are not admissible for the purpose of impeaching the same.
    8. In a proceeding against the administrator and heirs of a deceased grantee, to set aside a deed to him, on the ground of his undue influence, as the grantor, if living, would not be a competent witness to prove undue influence, it follows that his declarations, made out of the presence or hearing of such grantee, or after the death of the grantee, are equally incompetent for such purpose.
    9. Same—to prove undue influence in procuring execution of a deed. On bill by the heirs of a deceased grantor to set aside a deed by him to. a grandson, on the ground of undue influence, the court allowed witnesses to testify, over objections, that the wife of the grantor was a strong-minded woman, and directed generally what should be done about the house or about the business of the grantor; that in all contests with her husband she had her own way, and that she evinced a great affection for the grandson : Held, that the court erred in admitting such evidence. Fraud or undue influence, to avoid a deed or will, must be directly connected -with the execution of the same.
    10. Contracts—mental capacity—presumption. On the trial of an issue on bill to set aside a deed, on the alleged ground of the grantor being of unsound mind, the defendants asked the court to instruct the jury, that the law presumes every man to be sane and competent to transact his business, if of lawful age, until the contrary is shown, and that “therefore the jury must presume and find thatW. (the grantor) at the time of the execution of said deed, etc., was of sound mind, and competent to execute the same, unless a preponderance of the evidence in the case proves the contrary; and if, after considering all the evidence in the case, the jury are unable to determine, from the evidence, whether W. was of sound mind and competent to execute said papers or not, they should find, by their verdict, that he was of sound mind and was so competent.” The court refused to give the same, and gave no other one upon the presumption of sanity: Held, that the court erred in refusing the instruction.
    11. In the same case, the defendants asked this instruction: “The jury are instructed, that if they believe, from the evidence, that the grantor of the deed had memory and mind enough to recollect the property he was about to convey, and the person to whom he wished to convey it, and the manner in which he wished it to be disposed of, and to know and understand the business he was engaged in, such person is, in contemplation of law, of sound mind, and his age or bodily infirmity would not vitiate a conveyance made by one possessing such capacity.” The court refused the same : Held, that the court erred in refusing such instruction.
    12. The circumstance that the intellectual powers of a party have been somewhat impaired by age, is not sufficient to render him incapable in disposing of his property by deed or will, if he still retains a full comprehension of the meaning, design and effect of his acts.
    Appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.
    Mr. Charles Wheaton, for the appellants:
    As to what is undue influence, such as is required to set aside a deed or will, see 2 Pomeroy’s Eq. Jur. sec. 851, note; Roe v. Taylor, 45 Ill. 485; Stone v. Wilbern, 83 id. 105; Yoe v. McCord, 74 id. 44; Rutherford v. Morris, 77 id. 412; Marx v. McGlynn, 88 N. Y. 357; Meeker v. Meeker, 75 Ill. 260;
      Sturtevant v. Sturtevant, 116 id. 340; Conley v. Nailor, 118 U. S. 127; Kimball v. Cuddy, 117 Ill. 213; Cudney v. Cudney, 68 N. Y. 148.
    The undue influence which will avoid a will or deed must be directly exercised at the time of making the instrument. Rutherford v. Morris, 77 Ill. 412; Brownfield v. Brownfield, 43 id. 147; Monroe v. Barclay, 17 Ohio St. 302; Eckert v. Flowry, 43 Pa. 46; Small v. Small, 4 Greenlf. 220; McMahan v. Ryan, 8 Harr. 329; Blakely v. Blakely, 33 Ala. 611; Miller v. Miller, 3 S. & R. 267; 1 Redfield on Wills, 524.
    It was incompetent for complainant to prove the declarations of John Warne, made to Paxton and Mrs. Gates, that they were trying to force him to deed his property, or that his wife wanted him to deed to John Guild. It was incompetent, because it was not at or near the time of or directly connected with the execution of the instruments complained of, and also because the declarations of a grantor that he was unduly influenced to make the deed, are not competent to be- introduced in evidence. It was also incompetent because, this suit being by a conservator, it was the same as though it had been brought by John Warne himself, and he being a party in interest, his declarations were not competent as against appellants, who were both'defending their title to the property as heirs of John Guild, and George W. Guild was defendant, as administrator of John Guild.
    John Warne, if complainant, would not be a competent witness to prove undue influence in procuring the instruments, and not being a competent witness, his declarations are not competent.
    Parties making deeds or wills can not invalidate them by their own parol declarations, made either previously or subsequently, and such declarations should be excluded from the jury. Dickie v. Carter, 42 Ill. 377; Jackson v. Kniffer, 2 Johns. 31; Comstock v. Hadlyne, 8 Cow. 263; Massey v. Huntington, 118 Ill. 80.

      The mental derangement or imbecility which will render a contract voidable, must be such that the party is incapable of comprehending the nature and effect of his act when he entered into it. Baldwin v. Dunton, 40 Ill. 188; Sheldon v. Harding, 44 id. 68.
    That the mental powers have been somewhat impaired by age is not sufficient to invalidate a deed: Lindsey v. Lindsey, 50 Ill. 79; Wiley v. Ewalt, 66 id. 26; Clearwater v. Kimler, 43 id. 272; Trish v. Newell, 62 id. 196; Meeker v. Meeker, 75 id. 260; Stone v. Wilbern, 83 id. 105; Willemin v. Dunn, 93 id. 511; Pickerell v. Morss, 97 id. 220; English v. Porter, 109 id. 285; Kimball v. Cuddy, 117 id. 213.
    The chancellor is the sole judge of the evidence and its weight, and even when he directs an issue of fact to be tried by a jury, to inform his conscience, he may adopt the verdict of the jury, or he may disregard it and render a decree against their finding, or he may grant a new trial, as he may believe justice demands. In our courts of equity, the chancellor being also the common law judge, he necessarily hears all the evidence upon which the jury acts, and if satisfied the jury have found correctly, it would be his duty to adopt their finding; but if dissatisfied, it would equally be his duty to disregard the verdict, and proceed with the cause in such a manner as to do complete justice between the parties. Calvert v. Carpenter, 96 Ill. 63; Sibert v. McAvoy, 15 id. 108; Milk v. Moore, 39 id. 588; Williams v. Bishop, 15 id. 553; Sharkey v. Miller, 69 id. 560; Meeker v. Meeker, 75 id. 260; Smith v. Newton, 84 id. 14; Titcomb v. Vantyle, id. 371; Russell v. Fanning, 2 Bradw. 632.
    Mr. Elbert H. Gary, for the appellees:
    Upon the question of mental capacity, see Gass v. Gass, 3 Humph. 378; Meeker v. Meeker, 75 Ill. 267; Shropshire v. Reno, 5 Marsh. (Ky.) 91; Converse v. Converse, 21 Vt. 168; Holden v. Meadows, 31 Wis. 285; Chafin will case, 32 id. 558;
      Colman v. Robinson, 17 Ala. 84; Davis v. Calvert, 5 Gill & J. 269; Ford v. Ford, 7 Humph. 92; Schneider v. Manning, 121 Ill. 376; Freeman v. Easly, 117 id. 317; Parish v. Parish, 42 Barb. 274.
    Upon the question of undue influence the following precedents are referred to: Lewis v. Mason, 109 Mass. 169; Yoe v. McCord, 74 Ill. 33; Dickie v. Carter, 42 id. 376; Brownfield v. Brownfield, 43 id. 147; Davis v. Calvert, 5 Gill & J. 269; Trumbull v. Gibbons, 2 Zabr. 117; Daniels v. Daniels, 39 Pa. 559; Tyler v. Gardner, 35 N. Y. 559; Jure Welch, 1 Red. Surr. Rep. 238; Taylor v. Wilburn, 20 Mo. 306; Harrel v. Harrel, 1 Duv. 203; Reynolds v. Adams, 90 Ill. 135; Turner v. Cheeseman, 2 McCart. 265; Potts v. House, 6 Ga. 324; Clark v. Fisher, 1 Paige, 171; Rutherford v. Morris, 77 Ill. 397; Carmichael v. Reed, 45 id. 108; Roe v. Taylor, id. 485; Allmon v. Pigg, 82 id. 149; Tingley v. Cowgill, 48 Mo. 291; Lynch v. Clements, 24 N. J. Eq. 431; Thomas v. Stewart, 62 Mo. 275; Duffield v. Morris, 2 Harring. 375; Kevil v. Kevill, 6 Am. Law Reg. 79; Kimball v. Cuddy, 117 Ill. 213.
   Mr. Justice Shops

delivered the opinion of the Court:

This was originally a bill by Thomas M. Hull, conservator of John Warne, to set aside a deed, bill of sale and a lease, made by said Warne to John W. Guild, who was a grandson of said Warne. Subsequently to the filing of the bill, Warne died, and thereafter the suit was prosecuted by his children and heirs-at-law, appropriate amendments having been made in the pleadings for that purpose.

On the 6th day of June, 1882, John Warne and wife executed and delivered to John W. Guild a deed for one hundred and eight acres of land, in consideration of past services rendered, and of natural love and affection. On the 10th day of August following, said Warne also made and delivered to Guild, his grandson,'a lease of his home farm, during the life of the lessor and that of his wife, and for six months after the death' <?f the survivor of them, and also a hill of sale of all his personal property. Both of the last named were upon the condi- ‘ tion that Guild should comfortably keep, maintain and support Warne and his wife during their several lives, and properly care for and clothe them, and pay all taxes assessed upon the property. John W. Guild entered into the possession of the property, and, it is .conceded, faithfully performed these duties until December 28,1886, when he died intestate, leaving George W. Guild and Abbie Guild, his father and mother, his only heirs-at-law. George W. Guild was appointed administrator, of his estate, and duly qualified as such. The wife of John. Warne died about a month after the death of the grandson, ■ and said Warne died in the spring of 1888.

This bill was filed in 1887, against the administrator and heirs of said John W. Guild, deceased, seeking to set aside said deed, lease and bill of sale, on the ground of the mental incapacity of John Warne to make a valid disposition of his property at the time when the same were severally made, and on the further ground of undue influence over him by John W. Guild, in procuring the same. Answers were filed, denying the material allegations of the hill.

The circuit court directed the following issues to be submitted to a jury: First, was said John Warne, at the time of the execution and delivery of the deed dated June 6,1882, and the lease and bill of sale dated August 10, 1882, to John W. Guild, of sound mind and memory, and mentally capable of making such conveyances; and second, were said deed, lease and bill of sale obtained by undue influence of John W. Guild. The jury, after hearing the evidence, arguments of counsel and the instructions of the court, returned a verdict that Warne was not of sound mind and memory at the time of the execution of the deed, lease and bill of sale, and was not mentally capable of making the same, and that their execution was obtained through the undue influence of the said John W. Guild. The court overruled a motion for a new trial, and entered a final decree, which, after reciting the submission of the issues and the verdict of the jury, proceeds as follows: “And being fully advised in the premises, and having overruled the motion to set aside said verdict and for a new trial, as aforesaid, doth order and decree that a pro forma decree, and pro forma only, be entered in said cause in pursuance of said findings of the said jury, and not otherwise,” etc. The defendants bring the case to this court by appeal.

In chancery cases, except in cases where the submission to a jury is required by law or the rules of chancery practice, the chancellor is the judge of the weight of the evidence, and of the ultimate facts established by it. If he submits controverted questions of fact to a jury, as he may do, the verdict or finding of the jury is advisory, merely. He may adopt the verdict, or set the same aside and re-submit the question to a jury, or he may disregard it and enter such a decree as in his judgment equity demands. He may enter his decree after setting the verdict aside, or without setting it aside. Sibert v. McAvoy, 15 Ill. 108; Williams v. Bishop, id. 553; Milk v. Moore, 39 id. 588; Sharkey v. Miller, 69 id. 560; Meeker v. Meeker, 75 id. 260; Smith v. Newton, 84 id. 14; Calvert v. Carpenter, 96 id. 63; Russell v. Fanning, 2 Bradw. 632.

It appears that the chancellor in this case made no independent finding, but rendered his decree in pursuance of the finding of the jury, “and not otherwise.” The decree is pro forma, and pro forma only. This precludes the idea or presumption that the court acted upon its own judgment as to the truth of the allegations upon which the deed and bill of sale were set aside. Parties litigant are entitled to the judgment of the chancellor, and his consideration of the evidence, notwithstanding the verdict of the jury.

As the decree is based on the verdict of the jury alone, and not upon any independent judgment of the circuit court, it must follow, that if the finding of the jury was the result of, or was influenced by, the admission of improper evidence, or by improper instructions given by the court, the decree should be reversed. The condition is somewhat anomalous, but the effect must necessarily be the same as though the decree was based upon improper evidence or a misconception of the law applicable. In such case there can be no presumption that the chancellor acted upon proper evidence, only, and rejectéd that which was incompetent. It therefore becomes necessary to examine whether the court below erred in the admission of evidence or in its rulings. Nor is this position rendered untenable by the fact that this court may pass upon the evidence submitted under the issues presented by the pleadings, and determine the fact at issue, and enter such decree, or direct the entry thereof by the circuit court, as it shall find, from the evidence, pertains to equity and good conscience.

The evidence is here voluminous.and conflicting. In Myatt et al. v. Walker et al. 44 Ill. 485, we said, in speaking of cases of this character, turning upon a controverted question of fact, and where the evidence is voluminous and contradictory: “In such cases it is eminently proper that an issue should be framed and tried by a jury. Such a practice has always been sanctioned, and we think it more satisfactory and better calculated to promote justice, and the practice should be adopted by the courts below in all cases involving questions of insanity.” Numerous other cases may be found holding the same view. In addition, the parties litigant and this court have a right to the benefit of the judgment of the chancellor as to the weight of the evidence and credibility of the witnesses, whom he saw, and thus had the means, which we have not, of determining the degree of credit to which they were entitled.

Upon the trial before the jury, the court allowed complainant to prove the declarations of John Warne, that John W. Guild and Mrs. Warne, his (John Warne’s) wife, were trying to force him to deed his property to Guild. This was error. The declarations of a grantor, made either before or after the execution of his deed, are not admissible for the purpose of invalidating the same. Dickie v. Carter, 42 Ill. 377; Massey v. Huntington, 118 id. 80; Comstock v. Hadlyne, 8 Cow. 263; Jackson v. Kniffee, 2 Johns. 31.

Again, this proceeding was against the administrator and heirs of the grantee in the instruments named, and as John Warne, if living, would not be a competent witness, as against the personal representative and heirs of his deceased grantee, to prove undue influence, it follows that his declarations, made out of the presence or hearing of such grantee, or after his death, are equally incompetent for such purpose.

The court also allowed many witnesses to testify, over repeated objections of the defendants, that the wife of the grantor, Warne, was a strong-minded woman, and directed, generally, what should be done about the house or about the business ■of Warne; that in all contests .with her husband she had her own way, and that she evinced a great affection for her grandson. We think this evidence was improper to go to the jury. Fraud or undue influence, to avoid a will or deed, must be directly connected with the execution of the instrument, which is not here shown. (Rutherford v. Morris, 77 Ill. 412; Brownfield v. Brownfield, 43 id. 148; Monroe v. Barclay, 17 Ohio St. 302.) In Brownfield v. Broionfield, supra, this court say : “The testator may have acted under the advice of his son in his ordinary affairs, and been influenced by that advice, and still we do not see that it alone would tend to prove that he used undue influence in jirocuring the execution of the will.”

The language of this court in Rutherford v. Morris, supra, is appropriate here. .We there say: “This is the substance of all the evidence on the, question of undue influence, and that such trivialities should be introduced into a court of justice, and against the objection of the opposite party, excites surprise. They fail to touch the question of the execution of the will.” So here, there is no legitimate evidence of undue influence in procuring the execution of any of the instruments sought to be set aside. The verdict of the jury must have been influenced and produced, at least upon this branch of the case, by irrelevant and incompetent testimony. If this were all of the case, we should have no hesitation,in reversing the decree upon the merits.

On the question of mental capacity the court was asked by the defendants, and refused, to give the following-instruction:

“The jury are instructed, that the law presumes every man to be sane and competent to transact his business, if of lawful age, until the contrary is shown; therefore, the jury must presume and find that John Warne, at the time of the execution of said deed, bill of sale and lease, was of sound mind, and competent to execute the same, unless a preponderance of the evidence in this case proves the contrary; and if, after considering all' the evidence in the ease, the jury are unable to-determine, from the evidence, whether John Warne was of sound mind, and mentally competent to execute said papers or not, they should find, by their verdict, that he was of sound mind, and was so competent.”

No instruction was given upon the presumption of sanity. The law presumes every man to be sane until the contrary is proved, and the burden of proof rests upon the party alleging insanity. (Menkins v. Lightner, 18 Ill. 282.) This instruction should have been given.

Shortly before the execution of the deed by Warne, some of his children and sons-in-law instituted proceedings in the county court to have him adjudged insane, but upon defense being made by Warne thereto, and in view of a prospect that he would dispose of his property to meet the wishes of his children, the proceeding was dismissed. The heirs, who are now the real complainants here, seem to have then had little question of his sanity. Indeed, they took, and now hold, property devised to them at about the time the papers were executed, which they are now seeking, to set aside. Counsel to whom the will of Warne was submitted, and who drew the same from a draft prepared by Warne himself, and the other counsel who prepared the deed, etc., after careful consideration and ample time to learn the state of Warne’s mind, then regarded him as competent to dispose of his property. It is now claimed, however, that in June and August, 1882, John Warne was laboring under what is called senile dementia, and that his want of disposing capacity was the result of old age. On this aspect of the case the defendant asked the following instruction, which was refused:

“The jury are instructed, that if they believe, from the evidence, that the grantor of the deed had memory and mind enough to recollect the property he was about to convey and the person to whom he wished to convey it, and the manner in which he wished it to be disposed of, and to know and understand the business he was engaged in, such person is, in contemplation of law, of sound mind, and his age or bodily infirmity would not vitiate a conveyance -made by one possessing such capacity.”

This instruction should also have been given. His age, weakness or bodily infirmity would not render him incapable of disposing of his property by deed or will. As said in Lindsey v. Lindsey, 50 Ill. 79, “the circumstance that the intellectual powers have been somewhat impaired by age is not sufficient, if the contracting party still retains a full comprehension of the meaning, design and effect of his acts. ” And again: “Under these circumstances, it is not evidence of either mental imbecility or undue influence that the deceased conveyed his property to his son for a fraction of its value, taking from him notes secured by mortgage for such sum as he thought equitable, for the benefit of his other children, and a bond for his own maintenance during the remainder of his life.” See, also, in this connection, Wiley v. Ewalt, 66 Ill. 26; Clearwater v. Kimler, 43 id. 273; Trish v. Newell, 62 id. 196; Meeker v. Meeker, 75 id. 260; Stone v. Wilburn, 83 id. 105; Pickerell v. Morss, 97 id. 220; English v. Porter, 109 id. 528; Burley v. McGough, 115 id. 11.

There is much evidence in this case tending to support the contentions of the respective parties. The time taken for legal advice and deliberation by Warne, "his carefulness to guard against mistake, the preparation of his will, having the land surveyed with a view to a correct description of it, the conditions inserted in the life lease for the support of himself and wife, the provision therein of forfeiture in case of breach, with other circumstances that might be named, tend very strongly to establish the belief, that though weak in body, and perhaps in mind, he had a clear and correct conception of his acts and their consequences. We, however, refrain from discussion of the evidence, and express no opinion as to the weight or credit to be given to it. As before said, it is a case where it would be eminently proper to submit the questions of fact to a jury, under the direction of the chancellor.

In conformity with the practice indicated, the decree of the circuit court will be reversed, and the cause remanded to that1 court, where the question of the sanity of said Warne may be again submitted to a jury, or determined by the chancellor, as in his discretion may be warranted.

Decree reversed.