house in the town of Upper Alton upon its can be appealed to in support of the prayer line of railway, which said grounds were ac- of the petition. Neither in the defendant's quired by condemnation proceedings, for use charter nor in any other act of the general for side tracks, freight and passenger depots, assembly does there seem to be any attempt and depot grounds, and that property in said to prescribe the rules by which the defendant town has been bought and sold upon the be- is to be governed in the location of its freight lief and representation that a depot would be and passenger stations, or to confer upon the maintained at that place; that the town coun- circuit court the power to interpose and dicil of said town, and many of the citizens of rect as to their location. It is plain that the the town and vicinity requiring the use of act of 1877, the only one to which we are resaid railway, and the railway and warehouse ferred in this connection, can have no applicommission of the state of Illinois, have re- cation. That act provides "that all railroad quested and demanded of said company that companies in this state, carrying passengers it establish and maintain upon its said or freight, shall, and they are hereby required grounds in said town a suitable depot and to, build and maintain depots for the comfreight-house, and that it stop its trains, or fort of passengers, and for the protection of a sufficient number thereof to accommodate shippers of freight, where such railroad comthe public, at said station, and that it re-panies are in the practice of receiving and ceive and discharge freight and passengers delivering passengers and freight, at all thereat when requested,-yet said company has wholly refused, and still does refuse, to maintain either a passenger or freight depot in said town, or to receive or discharge freight or passengers thereat.

towns and villages on the line of their roads having a population of five hundred or more." 2 Starr & C. St. 1924. While it is true that Upper Alton is a town having a population of more than 500, it affirmatively appears that it is not a place where the defendant has been in the practice of receiving and delivering passengers and freight, and so is not within the provisions of said act. The petition seeks to have the defendant compelled to establish a station where none has heretofore existed, while the statute merely requires the erection of suitable depot build

The petition further alleges that said line of railway extends in a westerly direction from the town of Godfrey, and that there are many persons desiring to travel on said railway from said town of Upper Alton to towns on the line of said railway west of said town of Godfrey, and that persons going west are now compelled to go to Godfrey to take the same train which passes through the corpo-ings at places where the railway company rate limits of the town of Upper Alton; and the most convenient route for passengers to reach Godfrey now is to go a distance of two and one-half or three miles to the station of Alton, and go by the way of the Chicago & Alton Railroad a distance of four or five miles to Godfrey, and there they are com-based; the position now taken by him being pelled to wait one hour for the train which such passengers might, if the prayer of the petition were granted, take in the town of Upper Alton.

has already located its stations, and is in the practice of receiving and discharging passengers and freight. In point of fact, the attorney general, in his argument upon the rehearing, admits that there is no statute upon which his prayer for a mandamus can be

that, upon the facts alleged in the petition and admitted by the demurrer, the legal duty on the part of the defendant to establish a freight and passenger station on its line of The petition prays for a writ of mandamus railway in the town of Upper Alton arises by commanding said company to establish a pas- virtue of the principles of the common law. senger and freight depot upon its said line of It is undoubtedly the rule that railway railway in said town of Upper Alton, at a companies, in the absence of statutory prosuitable and convenient point to accommo- visions limiting and restricting their powers, date the public and all persons desiring trans-are vested with a very broad discretion in portation for freight or passengers to and the matter of locating, constructing, and from said town, and to stop its trains, both freight and passenger, or a sufficient number thereof to accommodate the public, and discharge passengers and freight thereat when requested, and that, upon the final hearing, such further order might be made in the premises as to the court should seem meet and proper.

operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the condition that it must be exercised in good faith, and with a due regard to the necessities and convenience of the public. Railway companies, though private corporations, are engaged in a busiTo the foregoing petition the defendant in- ness in which the public have an interest, terposed a general demurrer, which was sus- and in which such companies are public tained by the court, and the attorney general servants, and amenable as such. This docelecting to abide by his petition, final judg-trine has been repeatedly, announced by this inent was entered in favor of the defendant. and other courts. Thus, in Marsh v. RailFrom that judgment the petitioners have ap-road Co., 64 Ill. 414, which was a bill for the pealed to this court. specific performance of a contract by which There is, so far as we have been able to the railway company agreed to locate its discover, no provision of any statute which passenger and freight depots at a particular

point in a certain town, and at no other | doubt that the act sought to be enforced (the point in said town, we said: "This is not a establishment and maintenance of a freight case which concerns merely the private in- and passenger station on the defendant's line terests of two suitors. It is a matter where of railway at a convenient point within the the public interest is involved. Railroad town of Upper Alton) is sufficiently specific companies are incorporated by authority of to be enforced by mandamus; and it only relaw, not for the promotion of mere private mains to be seen whether the right to have ends, but in view of the public good they its performance enforced is shown to be clear subserve. It is the circumstance of public and undoubted. It should be observed that use which justifies the exercise on their be- there is no controversy as to the facts; the half of the right of eminent domain in the allegations of the petition being, for all the taking of private property for the purpose of purposes of this appeal, conclusively admitted their construction. They have come to be by the demurrer. almost a public necessity; the general welfare being largely dependent upon these modes of intercommunication, and the manner of carrying on their operations." In the same case, in holding that the contract there in question ought not to be specifically enforced, we further said: "Railroad companies, in order to fulfill one of the ends of their creation,-the promotion of the public welfare, should be left free to establish and re-establish their depots wheresoever the accommodation of the wants of the public may require."

The petition undertakes to show the public importance and necessity of the station asked for in two ways--First, by alleging the facts and circumstances which tend to prove it, and, secondly, by directly averring it. It cannot be doubted, we think, that the facts alleged make out a clear and strong case of public necessity. They show that Upper Alton is a town of over 1,800 inhabitants, situated on the line of the defendant's railway about midway between two other stations seven miles apart. The residents of the town and vicinity are shown to be possessed În Railway Co. v. People, 120 II. 200, 11 of at least the ordinary inclination to travel N. E. Rep. 347, which was a petition for a by railway, and it is averred that many of mandamus to compel the railway company them have occasion and desire to travel by to repair, generally, a certain portion of its the defendant's railway between Upper Alton road, and to increase its passenger trains and other points on the line of said railway. thereon, we said: "There can be no doubt of Various manufacturing and other business the duty of a railway company to keep its enterprises are shown to be carried on within road in a reasonable state of repair, and in a the town, creating a necessity for the use of safe condition. Nor is there any doubt of said railway for the transportation of manuits duty to so operate it as to afford adequate factured articles, merchandise, and other facilities for the transaction of such business freights. To avail themselves of transportaas may be offered it, or at least reasonably tion upon trains which pass by their doors, be expected. * * * The company, how-the inhabitants of Upper Alton are compelled ever, is given, as it should be, a very large to go and transport their freights by other discretion in determining all questions relat-conveyances to a neighboring town about ing to the equipment and operation of its three and one-half miles away. Then, as we road; hence courts, as a general rule, will have already said, the petition directly avers, not interfere with the management of rail- and the demurrer admits, that the accommoways in these respects, except where the act dation of the public living in and near said sought to be enforced is specific, and the town requires, and long has required, the right to its performance in the manner pro- establishment of a passenger and freight posed is clear and undoubted." depot on the line of its road within said town. It is in recognition of the paramount duty Unless, then, there is some explanation for of railway companies to establish and main-the course pursued by the defendant which tain their depots at such points, and in such the record does not give, we cannot escape the manner, as to subserve the public necessities conviction that its conduct in the premises and convenience that it has been held by all exhibits an entire want of good faith in its the courts, with very few exceptions, that con- efforts to perform its public functions as a tracts materially limiting their power to lo- common carrier, and an unwarrantable discate and relocate their depots are against pub-regard of the public interests and necessities. lic policy, and therefore void. Railroad Co. v. It cannot be admitted that the discretion Mathers, 71 Ill. 592; Railroad Co. v. Math- vested in the defendant in the matter of estabers, 104 Ill. 257; Bestor v. Wathen, 60. Ill.lishing and maintaining its freight and pas138; Linder v. Carpenter, 62 Ill. 309; Rail-senger stations extends so far as to justify road Co. v. Ryan, 11 Kan. 602; Railroad Co. such manifest and admitted disregard of its v. Seely, 45 Mo. 212; Holladay v. Patterson, 5 duties to the public. Or. 177; Tayl. Corp. § 162, and authorities cited.

We have now to consider whether, in the light of the principles above laid down, a right, to the relief prayed for is sufficiently shown by the petition. There can be no

We are of the opinion that the petition shows a clear and undoubted right on the part of the public to the establishment and maintenance of a freight and passenger station on the line of the defendant's railway in the town of Upper Alton, and it therefore fol

lows that the demurrer to the petition should have been overruled. For the error in sustaining the demurrer, the judgment will be reversed, and the cause remanded for further proceedings. Judgment reversed.

(130 Ill. 98)

STEFFY v. PEOPLE.1

(Supreme Court of Illinois. Oct. 31, 1889.) ASSAULT WITH INTENT TO KILL-APPEAL.

1. Upon trial for assault with intent to murder, the evidence showed that defendant went to the house of the assaulted person armed with a revolver, and picked a quarrel with him. As the latter was advancing towards defendant with a stick in his hand, defendant called on him to stop, and then fired, while the other was from 10 to 25 feet off. The evidence was conflicting as to whether the assaulted person stopped before the shot was fired. Held sufficient to justify a verdict of guilty.

2. Exceptions not preserved by bill of exceptions cannot be brought into the record by insertion in the entry of the order or ruling excepted to. 3. Instructions to the giving of which no exceptions have been preserved cannot be questioned in the supreme court.

Error to circuit court, Crawford county; WILLIAM C. JONES, Judge.

Callahan, Jones & Lowe and Parker & Crowley, for plaintiff in error. George Hunt, Atty. Gen., for the People.

dispute had existed between them for over a year before the alleged assault. On the 18th of August, 1888, Steffy went to the house of Pinkstaff, not, however, the one in dispute, and called Pinkstaff out, and informed him that he (Steffy) was going to nail up the house in dispute. After making some inquiries about the sash to two of the windows, he told Pinkstaff to take his stove out of the house; that he was going to nail it up. The evidence tends to show that he had already nailed up the windows and doors. At the time he was talking to Pinkstaff the defendant had a hatchet or hammer in his left hand, his coat hanging on his left arm, and his right hand under his coat, in which, he states, he had a revolver. Pinkstaff told defendant he had better let the stove alone, and ordered him off his premises, for the reason, as he alleges, the defendant was trying to quarrel with him. The defendant at that time was near the gate leading to Pinkstaff's house, but as Pinkstaff came out "backed out a piece down the lane in front of the house and stopped." Pinkstaff's wife came out also, and placed herself between the two men, and said to defendant: "Give up what you have got, John, and fight fair, if you must fight." The defendant replied: "May be I will." Witnesses for the people say that the defendant then drew his revolver, (which is, however, denied by the defendant.) That Pinkstaff stepped a little to one side, and picked up a small stick of stove-wood, and started towards the defendant. When he had got within about 25 feet of the defendant, the defendant commanded him to "halt." Pinkstaff, his wife, and Mrs. Landreth, who are all shown to have been present, testified that Pinkstaff did halt, but that the It is urged, first, as ground of reversal, defendant notwithstanding immediately fired that the verdict of the jury is contrary to the his revolver at Pinkstaff. This condition of evidence. Whether the evidence warranted affairs is denied by the defendant alone, who the verdict was a question of fact peculiarly says that Pinkstaff continued to advance, within the province of the jury to deter- and had approached within 10 feet of him bemine, and great weight is to be given to fore he fired the shot. fore he fired the shot. The evidence also their finding. Courts are reluctant to sub- tends to show that the defendant again drew stitute their opinion for that of the jury up- up his pistol, and pointed it at Pinkstaff, but on controverted questions of fact. To justi- for some reason, unexplained, did not fire. fy this court in reversing, on the ground The testimony of Pinkstaff, in most of the that the evidence was insufficient, it must material facts, too, is corroborated by that appear that the finding of the jury is not sus-of his wife and Mrs. Landreth. tained by the evidence, or that it is palpably It cannot be said that the verdict is clearcontrary to the decided weight of the evidence. Gainey v. People, 97 Ill. 270; Han-ly against the weight of the evidence. No rahan v. People, 91 Ill. 142; Rogers v. Peo-fendant should go to the house of Pinkstaff, satisfactory reason is shown why the deple, 98 Ill. 581. In the first case cited this armed with a deadly weapon, provoke a quarcourt say: "It is only when this court is able rel, and refuse to leave when ordered to do to say, from a careful consideration of the whole of the testimony, that there is clearly reasonable and well-founded doubt of the guilt of the accused, that it will interpose on the ground the evidence does not support the verdict." Citing Rafferty v. People, 72 Ill.

SHOPE, C. J. John Steffy was indicted at the September term, 1888, of the Crawford circuit court, for an assault upon Sylvester Pinkstaff, with intent to murder. The cause was tried at the March term, 1889, resulting in a verdict finding the defendant guilty as charged, and fixing his punishment at confinement in the penitentiary for one year. Motion for new trial was overruled, and judgment on verdict.

37.

a

So.

fendant, without any excuse therefor, in a The bare fact, unexplained, that the detime of peace, and when menaced with no danger either to his person or property, was armed with a dangerous and deadly weapon, of itself was a strong circumstance from the defendant was actuated by premeditated which the jury might be justified in finding malice. It looks very much as if his visit was made with the purpose of having a difficulty with Pinkstaff, and that he prepared

himself for any emergency that might arise. [the same position while testifying as the other The evidence was, we think, sufficient to au- witnesses,-a judgment of conviction will not be reversed as unsupported by the evidence. thorize the jury to so believe.

2. Rev. St. Ill. c. 79, § 56, provides that in suits before justices no party shall be permitted to deny the execution of any written instrument upon which suit shall be founded, unless denied by affidavit. In an action of replevin, plaintiff introduced a bill of sale from defendant of the property in suit, proved the signature by other witnesses, and then called the defendant, who, without making affidavit, denied the execution of the instrument. Held, that defendant's testimony was admissible, no objection to it having been made, and that perjury could be assigned thereon.

It is said that the jury were not justified in finding there was no considerable provocation for the assault. Mere words cannot be said to constitute the considerable provocation contemplated by the statute. It has been held by this court that no provocation by words only, however opprobrious, will so mitigate intentional killing so as to reduce the homicide to manslaughter. Jackson v. People, 18 Ill. 269. If, therefore, in this case, the words used by Pinkstaff would not have reduced the offense, if death had result-party to any suit before a justice shall be ed from the assault, from murder to manslaughter, it follows that such words cannot constitute such provocation as would destroy the intent necessary to the commission of the crime charged.

Error to criminal court, Cook county. Rev. St. Ill. c. 79, § 56, provides that "no permitted to deny the execution or any indorsement of any written instrument upon which suit shall be founded, *** unless the said denial be by affidavit of the party so denying the execution or indorsement thereof." Runyan & Runyan, for appellant. Hunt, Atty. Gen., for appellee.

Geo.

But, aside from this view, the bill of exceptions fails to show any exception taken by the defendant to the ruling of the circuit court, either in giving, refusing, or modify- SCHOLFIELD, J. This writ of error brings ing instructions, or in overruling defendant's before us for review the record of the conmotion for a new trial, or his motion in ar- viction of the plaintiff in error, in the crimirest of judgment. It is true that the clerk nal court of Cook county, of the crime of perrecites in the record that exception was taken jury. The perjury is alleged to have been to the overruling of such motions, but it has committed on the trial of an action of replevin been so repeatedly held that exceptions to for a lot of law-books, wherein one Edward the rulings of the court cannot be preserved E. Sawyer was plaintiff and A. S. Cronk, the in that way that the citation of authority present plaintiff in error, was defendant, bewould seem unnecessary. Such exceptions, fore one FOOTE, a justice of the peace for if taken, must be preserved in a bill of ex- Cook county. Upon the trial before the jusceptions, if it is desired to have them made tice of the peace, Sawyer produced what purparts of the record. No exceptions having ported to be a bill of sale of the law-books of been taken to the order overruling the mo- Cronk to himself, and testified that Cronk exetion for new trial, the plaintiff is in no posi-cuted it; and, after some corroborative evi-· tion to question the sufficiency of the evidence of its execution, it was given in evidence to sustain the verdict.

dence to the jury, and the plaintiff then restIt is also objected that the court erred in ed his case. The defendant, Cronk, theregiving certain of the instructions asked and upon introduced a witness on his behalf, who given on behalf of the people. As we have testified that the bill of sale was not executed seen. no exceptions are preserved in this rec-in Cronk's handwriting; and it is claimed by ord, if any were taken, to the giving of the instructions complained of, or of any of them, and the defendant cannot, therefore, question their correctness on error. It may, however, properly be said that we have examined the instructions, and, while some of them are faulty, we are of opinion that when the instructions given are considered togeth-ness, and testified that he did not execute er there is no error of which the defendant can justly complain. The judgment of the circuit court must be affirmed.

(131 Ill. 56)

CRONK V. PEOPLE.

(Supreme Court of Illinois. Dec. 6, 1889.) PERJURY-JUSTICE OF THE PEACE-PRACTICE.

1. Upon trial for perjury committed in a justice's court, where three witnesses swear that defendant was sworn by the justice, and four others, who were present, testify that he was not sworn, anu it is further shown in evidence that the proceedings before the justice took place in a noisy room; that the justice administered the oath to defendant in a low tone, and the latter did not occupy 1Reported by Louis Boisot, Jr., of the Chicago

bar.

the people, but denied by the plaintiff in error, that Sawyer's counsel at that time called Cronk as a witness on behalf of Sawyer; that Cronk was then sworn by the justice of the peace to testify as a witness in the case; and that immediately thereafter Cronk was examined by the counsel for Sawyer as a wit

the bill of sale. There is ample evidence to show that Cronk was in fact sworn and examined as a witness, as thus claimed, and that, if his testimony was material to the issue being tried before the justice of the peace, his testimony, as thus claimed to have been given, was false, and he was properly convicted of perjury. But it is contended on behalf of plaintiff in error-First, that the evidence fails to establish with sufficient certainty that Cronk was sworn to testify as a witness in the case; second, that the trial before the justice of the peace was upon a written instrument, the execution of which was denied; but, such denial not being under oath, evidence that it was not executed was inadmissible, and perjury cannot be assigned

upon evidence which is legally inadmissible | tinue the cause to a subsequent day for trial, under the issue being tried. We are unable on account of the absence of witnesses; arto yield our assent to either of these conten- gued the sufficiency of the grounds stated by tions. him; examined the witnesses of Sawyer, and examined his own witnesses upon the trial; that questions were addressed to him, personally, as to the genuineness of his signature to the bill of sale; that Cronk did not occupy the same position with reference to the position of the justice of the peace during the trial that the other witnesses did; and the testimony of those who testified that Cronk was sworn is that the justice of the peace administered the oath in a "low and mumbling manner;" and so the jurymen may have been mistaken. It is the duty of the jury to reconcile all the evidence if possible, and to assume that no one has willfully testified falsely, unless there is no reasonable escape from that conclusion. They are regarded by the law as peculiarly qualified, in criminal cases, to pass upon the question of guilt or innocence; and it is violative of both the letter and the spirit of our Criminal Code to set aside a verdict merely because we may, on the written evidence in the record before us, entertain doubts of the correctness of the finding of the jury. Unless we are clearly satisfied that the verdict is, under the evidence submitted to the jury, wrong, it must stand. We cannot say here that we are thus satisfied.

2. The action before the justice of the peace was not "founded" upon the bill of sale, so as to require a denial of its execution by affidavit, before evidence that it was not executed could be admitted, within the con

1. The justice of the peace before whom the trial was had testified that he recollected that Cronk was sworn, before the commencement of the trial, on an application that he then made to continue the cause to another day for trial on account of the absence of witnesses, but that he did not remember whether he was afterwards sworn as a witness on the trial or not. Three witnesses (Edgar Terhune, attorney for Sawyer on the trial before the justice of the peace; Edward E. Mills, a former attorney of Sawyer, and a witness on that trial; and Sawyer himself) testified that Cronk was sworn as a witness on the trial, on the request of Terhune, and that after being sworn he testified that he did not execute the bill of sale. They concur as to the circumstances under which he testified, which are thus detailed by Terhune, as shown by the abstract: "Mr. Cronk was sworn by Justice FOOTE as a witness, and testified, on the 12th day of July, 1888. I acted as attorney for Mr. Sawyer on the trial. Mr. Cronk was sworn upon the question of a continuance. There was a jury there. I called Mr. Sawyer and Mr. Mills, and they testified; and that closed my case. Mr. Cronk called a stranger, a constable, whose name I don't recollect, and he testified that the bill of sale was not in the hand writing of Mr. Cronk, and the signature was not Mr. Cronk's handwriting, and Mr. Cronk said: That is my case.' I then said: Mr. Cronk, do you deny that this bill of sale is in your hand-templation of section 56, c. 79, Rev. St. 1874. writing?' He replied: I am not under The action was founded on Sawyer's right oath. I am not a witness.' I said: Mr. of present possession, and Cronk's unlawful Cronk, I will call you to the stand.' I called detention of the property replevied; and Justice FOOTE, and he swore him, and I the bill of sale was competent evidence in said: Is that in your handwriting?' He an- proving Sawyer's right of present possession. swered: No bill of sale from me to Sawyer The plea of non est factum is unknown in is in my handwriting.' I asked: Is this in- actions of replevin, and it would be as much strument (showing him the bill of sale) in out of place there as in an action of ejectyour hand writing?' He hesitated a moment, ment. Moreover, this is, in any view, but and then said 'No.' And is that your sig- a matter of pleading. One party may waive nature?' said I, (indicating signature to bill any plea upon which he might insist as a conof sale.) Said he, No.'" There was a jury dition precedent to the introduction of eviin the trial before the justice of the peace; dence by the other party; and, where the and four of the jurymen testified that Cronk other party shall give evidence of a matter was not sworn as a witness, and did not tes- which is only admissible on the assumption tify as such upon the trial. From the cir- that he has by plea raised an issue which he cumstances detailed by Terhune, Mills, and has not raised, he cannot take advantage of Sawyer, it is not probable that they were it. By giving the evidence he asserts its mistaken. The probabilities are that they materiality, and, the other party not objecteither testified truly, or that they willfully ing, the question of pleading is out of the fabricated that to which they testified. That, however, cannot be said with equal confidence as to the testimony of the jurymen. The evidence shows that the windows of the room in which the trial was had were up, and that much noise came in from the street; that Cronk conducted his own case, was sworn on an application made by him to con

case. In such case, at most, the giving of the evidence could only have been error to have been availed of by the party against whom it was given, over objection, and perjury may therefore be assigned upon it. 3 Whart. Crim. Law, (7th Ed.) § 2225, and cases cited in note h. The judgment is affirmed.