(147 N.E.)

B. Searcy, of Springfield (Edward E. Wilson | Pellegrino. Tranchita was taken to the and Clarence E. Nelson, both of Chicago, of counsel), for the People.

THOMPSON, J. Antonino Scimeni was convicted in the criminal court of Cook county of murder and his punishment fixed at 14 years in the penitentiary. He prosecutes this writ of error to reverse the judgment upon the grounds that his guilt is not shown by the evidence beyond a reasonable doubt and that the court erred in the giving and refusing of instructions.

Defendant and four other Italians called at the home of John Mussilliani about 7:30 o'clock in the evening of October 15, 1923. The host seated his guests at a table in the dining room and served them sardines, bread, olives, and wine. For the next two hours these men ate, drank, and talked. Much of their conversation pertained to grapes and wine and the degrees of success attained by them in the home manufacture of the latter. During the two hours these men visited they consumed four or five bottles of wine. About 9 o'clock Baldassare Tranchita, one of the men, asked defendant to have another drink. The latter replied that he did not want any more, and this seemed to anger Tranchita. He applied to Scimeni a foul epithet and charged that he was not drinking more with them because he thought he was better than they. Scimeni denied that he considered himself superior to his companions, and asserted that he knew when he had enough wine and that Tranchita could drink what he pleased. At this point the stories of the witnesses differ. Only four of the six persons who had been eating and drinking around the table were present when the assault was made. Mussilliani says that Tranchita rose to his feet and slapped Scimeni in the face, and that the latter struck Tranchita in the stomach and then left the house. Pellegrino testified that when Tranchita struck Scimeni in the face those present protested and told Tranchita to behave himself because they were all friends there; that Tranchita said that Scimeni was no good and that his family in Italy was a family of prostitutes; that Scimeni protested against the abuse of his family, and that Tranchita, with a move of his hand toward his hip pocket, said, "If you move, I will kill you"; that Scimeni then stabbed Tranchita in the stomach with a knife. The story of the events leading up to the stabbing given by Pellegrino on the trial did not correspond with the story told by him at the coroner's inquest. At that time he did not say anything about Tranchita's reference to Scimeni's family as prostitutes, nor did he say anything about Tranchita's threat to shoot Scimeni. At the trial Scimeni testified in his own behalf, and his story of the occurrences of the evening corresponded substantially with the story told at the trial by

hospital, where he died the next morning. Scimeni was arrested two days later at the home of a cousin, where he had gone on the night of the trouble and remained until he was found by the officers.

he was

[1, 2] The ninth instruction given at the request of the people told the jury that if they found "that the infliction of such wound by the defendant was not necessary or apparently necessary to save his own life or to prevent his receiving great bodily harm, then the killing under such circumstances would not be justifiable under the plea of self-defense." The law is that if it appeared to defendant, acting as a reasonable person under the circumstances under which placed, that he was in danger of losing his life or of receiving great bodily harm, then he was warranted in using such force as seemed to him necessary, or apparently necessary, to defend himself against the attack of the deceased. The instruction as given was liable to mislead the jurors to believe that they should decide whether in their judgment the act of defendant was necessary to save his own life or to save himself from receiving great bodily harm. The question for the jury to determine was not whether it appeared to the jury from the evidence in the case that the act of defendant was necessary, but the question for them to decide was whether it appeared to defendant, acting as a reasonable person under the circumstances under which he was placed, that he was in danger of death or of receiving great bodily harm. People v. Dugas, 310 Ill. 291, 141 N. E. 769; People v. Durand, 307 Ill. 611, 139 N. E. 78.

The court gave to the jury two instructions on behalf of defendant which stated One of these stated: the law accurately.

"It is sufficient if the deceased attempted to assault the defendant in such a way and under such circumstances as to create in the mind of the defendant a reasonable belief that he was about to be killed or to receive great bodily

harm."

And the other stated:

"All that is necessary is that the defendant had reasonable grounds to believe that the danger was real and was about to fall on him, and if he acted in good faith and under an honest belief that he was in apparent danger of losing his life or of receiving great bodily harm. then he cannot be found guilty even though he may have made a mistake as to the impending danger."

[3-5] While an instruction which misstates the law cannot be cured by another instruction given on the same trial which correctly states the law, an instruction which is merely incomplete can be supplemented by other instructions which are in harmony. Where instructions on a given subject, taken as a series, fully and correctly state the law, then it is not material that one of the in

structions, standing alone, might have misled the jury. The giving of defendant's instructions 4 and 5 supplemented and cured the omission in people's instruction 9.

[6] Instruction 10 given on behalf of the people stated that threats of Tranchita cannot "avail said defendant unless at the time he made the assault alleged in the indictment he was actually assailed or had sufficient evidence to convince any reasonable person like situated that he was in danger of receiving great bodily injury or of losing his life at the hands of the said Baldassare Tranchita." The attorneys for defendant say:

[8] The court also refused an instruction which included this sentence:

"The intent to kill may not be an intent to commit murder, but to take the life of another in self-defense, or upon that sudden heat of passion which reduces the crime of killing to manslaughter."

This sentence is ambiguous and does not state any correct proposition of law applicable to the facts in this case. There cannot be an intent to kill upon a sudden heat of passion which reduces the killing to manslaughter. In order to reduce a killing to manslaughter, it must be the result of that "The vice of this instruction is that the jury sudden, violent impulse of passion supposed were told, in effect, that if the defendant actual- to be irresistible. The fact that the assailly and honestly believed under the circum-ant entertained an intent to kill negatives stances confronting him at the moment he struck the fatal blow that he was about to lose the idea that the killing was the result of an irresistible impulse of passion. his life or receive great bodily injury, it nevertheless was not justifiable homicide if any other reasonable person would not have had such apprehensions."

The instruction would have more accurate ly stated the law if it had said that the circumstances must "convince defendant, acting as a reasonable person under similar circumstances"; but we are of the opinion that the instruction, taken in connection with other instructions of the series, was not likely to mislead. Section 148 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 366) says:

"It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge."

Where the facts warrant the giving of such an instruction, one in the language of section 148 has been approved. Parsons v. People, 218 Ill. 386, 75 N. E. 993. This instruction states the law in substantial conformity with the law announced by this court in People v. McGinnis, 234 Ill. 68, 84 N. E. 687, 123 Am. St. Rep. 73, and is not subject to the objections urged against it. [7] The court refused to give an instruction on behalf of defendant which said, among other things:

"If you believe from the evidence that at the time the fatal blow was struck that killed the deceased, the deceased drew his right hand from his hip pocket, and that at the time there was induced in the mind of the defendant a reasonable and well-grounded fear and belief" of danger, he should be found not guilty.

This instruction was properly refused, because there was no evidence in the record that "deceased drew his right hand from his hip pocket." The only testimony on this subject was that of defendant and Pellegrino, who say that Tranchita moved his hand toward his hip pocket as he made the threat to kill.

[9] We have examined all of the errors assigned and argued with respect to the giving and refusing of instructions, and are convinced that the jury were fully instructed with respect to the law of this case, and that, considering the instructions as a series, there are no such omissions and inaccuracies as were likely to mislead the jury. It is not necessary in order to affirm a conviction to find that the instructions are free from error. To require absolute and technical accuracy in instructions would, as a general rule, defeat the ends of justice and bring the administration of the criminal law into disrepute and contempt. It is sufficient when the instructions considered as a whole, substantially and fairly present the law of the case to the jury. People v. Lloyd, 304 IL 23, 136 N. E. 505; People v. Haensel, 293 Ill. 33, 127 N. E. 181.

[10] When defendant was arrested, he had on his person a pocketknife with a three-inch blade which opened by the release of a spring. He testified that this knife belonged to Mussilliani and was unable to account for its being in his possession. He says that the knife was being used to cut bread at the table, and that he grabbed it and used it while he was stricken with great fear. Mussilliani and his wife deny that the knife found on defendant belonged to them and that it was used that night to cut the bread. Defendant contends that it was immaterial to whom this knife belonged and that it was error on the part of the state to impeach his testimony on this immaterial matter. There is no merit in this objection, because the evidence with respect to the ownership of the knife was both relevant and material.

[11-13] There were discrepancies in the testimony of the witnesses to this assault, but the evidence introduced on behalf of the people, if believed, is sufficient to establish the guilt of the defendant of the crime of murder. It was peculiarily the province of the jury to determine the credibility of the

(147 N.E.)

DE YOUNG, J., took no part in this de- dict must be unanimous and shall be conclusive, cision.

DUNN, J. The Appellate Court affirmed a judgment of the circuit court of Cook county for $2,500 in favor of Joseph Sinopoli against the Chicago Railways Company and others, Abstract instruction, that it was duty of operating as the Chicago Surface Lines, and common carrier of passengers to exercise high-a writ of certiorari was granted them for a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

review of the record.

the exercise of due care for the safety of its passengers requires the observance of the conduct prescribed by the rules, but, where they have no such tendency, evidence as to the rules is not competent. The rule was not admissible, for whether the door was opened before or after the car stopped made no difference in a case where the negligence is charged to have occurred after the car stopped; and the other part of the rule, which requires the closing of the door before the car starts, is irrelevant, because the closing of the door before starting the car could have had no tendency to prevent injury to the plaintiff, who was outside the door, standing on the step, in the act of stepping to the ground.

This is No. 16322. | guilty of the negligence complained of, or as They have also sued out a writ of error, evidence tending to show an admission that which is No. 16485, and the two cases were argued and have been submitted together. The cause of action grew out of an injury received by the plaintiff in alighting from a street car operated by the defendants in the city of Chicago. The declaration alleged that the defendants were operating the car along Halsted street, and when it reached the intersection of Thirty-Ninth street caused it to be stopped for the purpose of allowing passengers to alight, and that while the plaintiff was in the act of alighting from the car the defendants negligently caused it to be started, whereby the plaintiff was thrown to the pavement and injured. The contention of the defendants is that, when the car was a short distance north of Thirty-Ninth street, the plaintiff asked the motorman to let him off so that he could catch a ThirtyNinth street car, which was then rounding the curve from Halsted street east on ThirtyNinth; that the motorman opened the door a few feet north of Thirty-Ninth street, and when the car's speed was reduced, but. while it was still in motion, the plaintiff stepped off the car and fell. The evidence was contradictory. The testimony of the plaintiff and his two witnesses who testified as to the oc-ibility of witnesses, it was then clearly incurrence was that after the car stopped the motorman opened the door, the plaintiff got down on the step, and as he was stepping off the car it started with a jerk and threw him on the pavement, while the testimony of the motorman and another witness for the defendants tended to show that the facts were as claimed by the defendants.

The Appellate Court held the rule competent as bearing on the credibility of the witnesses on the question whether the motorman opened the door while the car was in motion or not till after it stopped. The rule was not offered by the plaintiff for any such purpose. It was offered as evidence in chief, when there was no question of the credibility of witnesses. If the only reason the rule was competent was on the question of the cred

competent. The defendants afterward introduced testimony on this question which contradicted that introduced by the plaintiff. The Appellate Court bases its opinion on the proposition that it is more probable that the motorman would obey the rule than that he would disobey it. If this were so, then the defendants ought to be permitted to show that the motorman was an exceedingly careful man, and particularly so about the observance of this rule, and the plaintiff then should be permitted to contract this evidence, thus diverting the minds of the jurors from the issue of the negligence charged, to the collateral question of the motorman's habit as to observing the rule. In Chicago, Burlington & Quincy Railroad Co. v. Lee, 60 Ill. 501, where the negligence charged was the failure to give a crossing signal as the train approached the crossing where a fatal accident occurred, evidence was introduced to show such failure, that trains had passed the crossing at other times without giving a signal. The judgment was reversed for admitting the evidence; the court saying:

[1, 2] The car was a pay-as-you-enter car, and the plaintiff offered in evidence a rule of the defendants which provided that "the front exit door on payee cars must not be opened until car has stopped and will be closed before car starts." The rule was admitted over the defendants' objection, and it is insisted that its admission was erroneous. The only negligence charged in the declaration was the starting of the car after it had stopped, while the plaintiff was in the act of alighting. To sustain this charge it was necessary for the plaintiff to prove that the car had stopped before the plaintiff began to get off. The rule had no tendency to establish this fact. The fact that the motorman had opened the door did not tend to prove that the car had stopped, though it was a violation of the rule to open it before stop ping. If it had been negligence for the motorman to open the door before the car stopped, such negligence would have had no connection with the injury to the plaintiff, who In Peoria & Pekin Union Railway Co. v. got off after the car stopped. Rules of a car- Clayberg, 107 Ill. 644, the defendant sought rier of passengers as to the conduct of its to show that the deceased was not observing employees may be admissible in evidence due care for his own safety at the time of where their violation is the negligence com- the accident by proving that before that time plained of as causing the injury, or where he was in the habit of jumping on trains, they tend to prove that the defendant is but the evidence was held inadmissible; itsį

"From the fact of omitting to ring the bell at any previous time, no reasonable inference could be drawn that it was not rung on the occasion in question."

(147 N.E.)

that the Appellate Court erred in not sustaining each of the errors assigned in the Appellate Court, the plaintiffs in error have specifically assigned that the Appellate Court erred in not reversing the judgment of the circuit court because the latter court erred in refusing to hold that the verdict was manifestly contrary to the weight of 'the evidence, and in refusing to grant a new trial to the defendants, and that the Appellate Court erred in denying the motion of the defendants for an appeal to this court. Counsel have presented in their brief and argument that the verdict is clearly against the weight of the evidence, basing the right of the defendants to do so on the unconstitution

effect clearly being to raise a collateral and immaterial issue. In West Chicago Street Railroad Co. v. Torpe, 187 Ill. 610, 58 N. E. 607 (an action for negligence resulting in death), the main controversy on the trial was over the speed of the train which caused the injury at the time the deceased tried to board it. The testimony varied from very slowly to very rapidly, and the court permitted the plaintiff to show that the railroad company had a custom of stopping its cars near the point where the accident occurred. It was held to be prejudicial error to permit the plaintiff to corroborate his witnesses, who had testified on that question, by proving that at other times trains ran slowly or stopped at this particular place for the pur-ality, as averred in their assignments of erpose of receiving passengers. These cases did not involve rules, but they did involve customs or habits, which were of as much probative force as rules in determining probabilities, and they hold that evidence as to such matters is incompetent.

ror, of the provisions of section 120 of the Practice Act (Smith-Hurd Rev. St. 1923, c. 110, § 119) that the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy except 121 and 122 of the Practice Act (sections in chancery, and the provisions, of sections 120, 121), that the judgments of the Appellate Court shall be final except in cases in which a certificate of importance or a writ of erCourt shall re-examine cases brought to it ror may be granted, and that the Supreme from the Appellate Court by appeal or writ of error as to questions of law only, and no assignment of error shall be allowed calling in question the determination of the inferior or Appellate Court upon controverted ques

tions of fact.

[3] The plaintiffs in error contend that it was error for the court to instruct the jury that "it is the duty of a common carrier of passengers to exercise the highest degree of care reasonably consistent with the mode of conveyance adopted and the practical operation of its road, to secure the safety of its passengers." The instruction is a correct statement of the rule of law as to the degree of care which the defendants owed to their passengers, but the objection made to it is that it declared the duty of a carrier much more broadly than any breach of duty that was alleged in the declaration; that the jury The claim that the provisions of the Pracwere told by it that the carrier was under tice Act are unconstitutional is based upon a duty to exercise the highest degree of care, section 5 of article 2 of the Constitution, in every respect, to secure the safety of its which provides that the right of trial by jury passengers; and that therefore the carrier as heretofore enjoyed shall remain inviolate. would be liable for any breach of duty to The case of Mirich v. Forschner Contracting secure the safety of its passengers, regard- Co., 312 Ill. 343, 143 N. E. 846, 33 A. L. R. 1, less of whether that breach was alleged or is cited as holding that the right of jury trial not. The instruction stated abstractly the referred to in that section of the Constituduty of the defendants without attempting tion comprehended the features of appellate to make a direct application of it to the par- review, and that it follows from that decision ticular facts. The particular facts alleged that no legislation can change the essential were that the defendants, having stopped the and characteristic features of appellate recar to allow passengers to alight, negligent- view of jury trials as it existed prior to 1870. ly started it while the plaintiff was alight- The case cited lends no support to this coning, causing him to be thrown down and in- tention. The question decided in that case jured, and the jury were instructed, at the was whether the Appellate Court was authorrequest of the defendants, by instruction No. ized by section 120 of the Practice Act to re25, that these were the allegations of each verse the judgment of a trial court based upcount of the declaration, and that they would on the verdict of a jury without remanding not be authorized or warranted in determin- the cause where there was a substantial coning whether the defendants were guilty of flict in the evidence, and the decision was any negligence excepting such as was charg- that such power exists only in cases where ed against them in the plaintiff's declaration a jury has been waived in the trial court or as set forth in that instruction. The abstract the trial court would have been justified in instruction therefore could not have misled directing a verdict because the evidence did the jury into believing that they might base not tend to establish the cause of action, and, their verdict on the opening of the door of that a reversal without remandment, with a the car or any other negligence than that conclusive finding of facts contrary to the alleged. verdict, would be a manifest deprivation of [4] In addition to the general assignment the right to a trial by jury; but there was