(313 I11. 359)

DEEGAN v. HECKARD et al. (No. 16147.) (Supreme Court of Illinois. Oct. 28, 1924.) Courts 219 (21)-Suit to remove as cloud building restrictions limiting use for term of years does not involve freehold.

Bill to remove as cloud deed purporting to convey freehold estate involves a freehold, but bill seeking to remove as cloud restrictive building covenant limiting use for term of years does not involve freehold as respects appeal to Supreme Court.

Appeal from Superior Court, Cook County; Oscar Hebel, Judge.

Suit by Edward S. Deegan against Martin O. Heckard and another. From decree of dismissal, plaintiff appeals. Cause transferred.

William Friedman, of Chicago (John S. Stevens, of Chicago, of counsel), for appellant.

Tenney, Harding, Sherman & Rogers, of Chicago (Henry F. Tenney and John E. O'Hara, both of Chicago, of counsel), for appellees.

peal. We assume the appeal was prosecuted to this court on the theory that a freehold is involved. Whether the bill to remove a cloud from title to real estate involves a freehold depends upon the nature of the alleged cloud. If the bill is to remove as a cloud a deed purporting to convey a freehold estate, a freehold is involved, but a bill which seeks to remove as a cloud a restrictive building covenant which limits the use of the real estate for a term of years does not involve a freehold although it may be of such nature as to

cloud the title. In this case the title to the

freehold was not put in issue in any manner by the pleadings. All parties agree that the fee is in appellant, and appellees claim no right except the right to enforce the agreement entered into at the time the lots were conveyed, in 1909. The identical restrictive covenants were before this court in Van Sant v. Rose, 260 Ill. 401, 103 N. E. 194, 49 L. R. A. (N. S.) 186, and this court there reviewed the record by writ of certiorari.

There being no assignment of error giving this court jurisdiction of this appeal, the cause is transferred to the Appellate Court for the First District.

Cause transferred.

PEOPLE v. DAY et al.

(Supreme Court of Illinois.

(313 Ill. 531) (No. 16037.) Oct. 28, 1924.)

1. Courts 219 (8)-Supreme Court will not entertain case as involving constitutionality of statutory provision not injuriously affecting party complaining.

renders whole act unconstitutional,

THOMPSON, J. March 29, 1909, appellees, Martin O. and Leonora P. Heckard, acquired title by warranty deeds to four lots in block 2, Cochran's Third addition to Edgewater, in the city of Chicago. Each of the deeds contained restrictions by which the grantees covenanted not to erect upon the lots any building within 25 feet of the front street line, or any building costing less than $3,000, or any flat or tenement building, for Supreme Court will not entertain case as a period of 20 years from the date of said deeds, without the written consent of the involving constitutional question, where statugrantors. Thereafter appellant, Edward S. tory provision complained of does not injuriousDeegan, acquired title to these lots by deedsly affect party complaining, unless its invalidity from appellees. The bill alleges, and the answer of appellees admits, that appellant is the owner in fee of the four lots, subject to the building restrictions of record. Appellant filed his bill in the superior court of Cook county asking that these building restrictions limiting the use of his lots be ex-couraging child to absent herself from home, in violation of Smith-Hurd St. 1923, c. 38, § tinguished and removed as clouds on his title 104, and other provisions as to neglect to do on the ground that the covenants are person- what would tend to prevent delinquency, that al and ceased on the death of the original section 105, concerning evidentiary matter not grantors; that the restrictions imposed on involved, contravenes Const. art. 4, § 13, as the lots are not common to other lots in the not expressed in title, presents no constitublock or subdivision; that they were not im- tional question for Supreme Court. posed in accordance with any general plan; 3. Criminal law

2. Courts

219(8)-Constitutional question held not presented by contention that parts of act not affecting defendant are unconstitutional.

Contention by defendants, charged with en

1020-Supreme Court has no jurisdiction to review conviction of contributing to delinquency of child.

and that the restrictions have been released from other lots in the block and subdivision by lapse of time. The chancellor sustained exceptions to the master's report and dismissed the bill for want of equity. This ap-quency of child, being fine or imprisonment in peal followed.

Counsel for appellant do not suggest why the appeal is prosecuted to this court, nor do we find any assignment of error that gives this court jurisdiction to entertain the ap

Punishment provided by Smith-Hurd Rev. St. 1923, c. 38, § 104, for contributing to delin

county jail, act is misdemeanor which Supreme Court has no jurisdiction to review.

Error to Circuit Court, Macon County; James S. Baldwin, Judge.

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(145 N.E.)

Arthur Day and others were convicted of, consent. The third count charges that plaincontributing to the delinquency of a child, and tiffs in error did certain acts, which acts then they bring error. Transferred to Appellate and there directly tended to render Lois HarCourt. ris a delinquent child, by encouraging her to absent herself from home without just cause and without the consent of her parents.

Michael Fitzgerald, of Assumption, William K. Whitfield, Jesse L. Deck, and W. T. Coleman, all of Decatur, for plaintiffs in er

ror.

Edward J. Brundage, Atty. Gen., Charles F. Evans, State's Atty., of Decatur, Virgil L. Blanding, of Moline, and Ashton E. Campbell, of Champaign, for the People.

Plaintiffs in error seek to bring the cause here on the ground that a constitutional question is involved. The grounds of the invalidity of the act urged here, and which the record shows were urged on motion to quash the indictment, are that the act contains certain provisions not within the title, and thereSTONE, J. Plaintiffs in error were indict- fore contravenes section 13 of article 4 of the ed and convicted of the crime of contribut- Constitution, providing that not more than ing to the delinquency of children, as that of- one subject shall be included in the act and it fense is defined in an act entitled "An act to shall be expressed in the title. The portion define and punish the crime of contributing to complained of as not being within the title of the delinquency of children, approved June the act is that which declares one guilty of 25, 1915." Smith's Stat. 1923, p. 669, §§ 103- the crime of contributing to the delinquency of children, who, when able to do so, shall 105. Section 1 of the act provides: willfully neglect to do that which will direct"That for the purposes of this act a delin-ly tend to prevent such state of delinquency. quent child is any female who while It is also contended that section 3 is not withunder the age of eighteen (18) years * * without just cause and without the consent of in the title, for the reason that it has to do its parents, guardian or custodian absents it- with the matter of evidence, and not the subself from its home or place of abode." ject-matter of the title.

Section 2 of the act provides:

[1-3] As we have seen, the plaintiffs in error were charged with affirmative acts tend"Any person who shall knowingly or willfully ing to contribute to the delinquency of Lois cause, aid or encourage any male under the Harris; i. e., they were charged with encourage of seventeen (17) years or any female un-aging her to absent herself from home withder the age of eighteen (18) years to be or to out just cause and without her parents' conbecome a delinquent child as defined in sec- sent. There is no charge that they neglecttion one (1), or who shall knowingly or will-ed to do that which would directly tend to fully do acts which directly tend to render any such child so delinquent and who, when able to do so, shall willfully neglect to do that which will directly tend to prevent such state of delinquency shall be deemed guilty of the crime of contributing to the delinquency of children and on conviction thereof shall be punished by a fine of not more than two hundred (200) dollars, or by imprisonment in the county jail, house of correction or workhouse not more than one (1) year, or by both such fine and imprisonment."

Section 3 of the act provides as follows:

"The husband or wife of the defendant shall

be a competent witness to testify in any case brought under the provisions of this act and to any and all matters relevant thereto."

The indictment consists of three counts. The first count charges that the plaintiffs in error knowingly, willfully, and unlawfully caused the complaining witness, Lois Harris, a female child of the age of 16 years, to become a delinquent child by persuading her to absent herself from home without just cause and without the consent of her parents. The second count charges them with encouraging Lois Harris to become a delinquent child by persuading her to absent herself from home without just cause and without her parents' 145 N.E.-11

prevent a state of delinquency. The record also shows no application of section 3, as the matter of the testimony of a husband or a wife of the defendants was in no wise embraced in the case. The rule is that this court will not entertain a case as having a constitutional question involved, where the provision of the act complained of does not injuriously affect the party complaining, unless to hold such provision invalid would render the whole act unconstitutional. People v. Diekmann, 285 Ill. 97, 120 N. E. 490; People v. Huff, 249 Ill. 164, 94 N. E. 61. It is not contended, and cannot be, that plaintiffs in error are aggrieved by the provisions complained of. It is evident from reading the statute that, even though the parts of the act complained of were to be held invalid, such would not invalidate the whole act or the balance of section 2. There is therefore no constitutional question involved in the case, and this court cannot take jurisdiction on that ground. As the punishment provided is a fine or imprisonment in the county jail, or both, the act is a misdemeanor, and no jurisdiction lies in this court to review such a case.

The cause will be transferred to the Appellate Court for the Third District. Cause transferred.

dence is analyzed carefully, it will clearly appear that the verdict of manslaughter is sustained, and that it was not error on the part of the court to instruct the jury that Error to Circuit Court, Saline County; A. under the indictment for murder they might E. Somers, Judge.

find the defendant guilty of murder or of Frank Durand was convicted of man- manslaughter, or they might find him not slaughter, and brings error. Affirmed. guilty. The only error committed in this re

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(145 N.E.)

gard by the court was so instructing the, "or," used in this instruction, should have jury without defining the term "manslaugh- been "and." ter." A verdict of manslaughter was clearly [3] The fifth instruction offered by the dewarranted under the evidence on the theory fendant was properly refused because it that the defendant in a heat of passion kill- calls special attention to the fact that the ed the deceased, and that that heat of passion deceased was a much larger man than the was caused by the fact that the deceased defendant. While it is proper for a jury to was abusing and fighting two small boys, take into consideration this fact, it is equally who were friends of the defendant. There so that they take into consideration all the was a very highly controverted question in the facts bearing upon the question of guilty or record as to whether or not the defendant not guilty. This instruction limited the concarried the brick with him to the scene of sideration entirely to the one fact mentioned. the killing from his home, where he started [4, 5] This court has never held, we beand ran part of the way and threw the brick lieve, that a defendant has the absolute almost instantly after getting within about right of having his case submitted to the 15 feet of the deceased and at a time when jury in such a way that the jury is comthe deceased was doing nothing to the boys pelled to find him guilty of murder or not or to the defendant, or whether he deliber- guilty. All indictments for murder in this ately walked to the scene of the killing and state contain sufficient allegations to also without in any way intending to offend the charge manslaughter, and a jury is warrantdeceased told him that he should not be abused in finding a defendant guilty of maning and fighting the boys, and then backed away and continued to back away while the deceased was coming towards him with a knife and while the deceased was so advancing picked up the brick and threw it at him as an act of self-defense and for the purpose of keeping the deceased from injuring him with the knife. Under the defendant's evidence, alone, his act was in self-defense; under the state's evidence and that of the defendant, he was guilty of murder or of manslaughter. The court therefore properly refused the defendant's first refused instruction limiting the issue to two propositions, only: That the defendant was guilty of murder or guilty of no offense.

slaughter under a charge of murder where the evidence warrants it. There might be some cases in which an instruction for manslaughter would not be applicable to the facts, but this court has always recognized the verdict of a jury as being legal when it ought to have been for murder or nothing, if the evidence clearly warranted the verdict finding the defendant guilty of murder. The court, however, should in every instance where a form of verdict for manslaughter is given, see also that an instruction is given defining manslaughter. This court has never held, as a matter of law, that it was reversible error to submit a form of verdict for manslaughter without giving an instruction defining manslaughter. The question whether or not such failure to give an instruction for manslaughter is reversible error must necessarily depend upon the facts in each particular case as it arises.

The defendant also makes the contention that the court erred in giving certain instructions for the people and in refusing certain instructions offered by him. Some of the instructions for the people are not very aptly worded, but the instructions as a [6-8] This court has constantly held that whole are substantially correct, and, consid- wherever a defendant wanted instructions ering all the instructions offered and given given bearing on the question of manslaughby both parties, all the law applicable to the ter, it was his duty to prepare proper incase was given to the jury, and the defend-structions of that character and tender them ant has shown no substantial ground for a to the court. In the present case we do not reversal for the giving of instructions or in modifying the instructions of the defendant. The only error that the court committed was in giving instructions on manslaughter without defining that term.

think that the error of the court in giving the form of verdict for manslaughter, or in giving the instruction for the people that under an indictment for murder a defendant may be found guilty of murder, manslaugh[2] The defendant's second instruction is ter, or not guilty, without giving a further erroneous in this particular: In stating to instruction properly defining manslaughter, the jury, in substance, that if he believed, or is reversible error. We do, however, want had reasonable grounds to believe, that he to emphasize the fact that it is error for the was in danger of receiving great bodily harm court to give such an instruction without at the hands of his assailant, he had a right the proper definition of manslaughter, and to defend himself, etc. Before he would be that the state's attorney in offering such an warranted in exercising his right of self- instruction, and the court in giving it withdefense by the use of a deadly weapon, he out the proper definition, take chances in must both believe, and have reasonable every case in having the judgment reversed. grounds to believe, that he was in danger because we recognize the fact that the court of receiving great bodily harm. The word ought not to give any instruction on man

Evidence held not to sufficiently show ownership of money alleged to have been taken from pay telephone.

slaughter without fully covering the ques-16. Larceny 55-Evidence held not sufficient tion. In the case of McCoy v. People, 175 to show larceny of money from telephone. Ill. 224, 51 N. E. 777, it is held that it is only Evidence held not sufficient to support findwhen we are satisfied, from a careful consid- ing of larceny of money from pay telephone. eration of the whole testimony, that there is 7. Larceny 60-Evidence held not to show a reasonable doubt of the guilt of the accus- ownership of property stolen. ed, that we will set aside the verdict as not warranted by the evidence. It was also held in that case that if the law of the case has been fairly presented, we will not reverse the judgment because an instruction objected to does not contain all the law on the subject, unless the peculiar circumstances of the case render such instruction misleading. The judgment of the circuit court is affirmed.

2. Larceny 23 No distinction between "petty larceny" and "grand larceny" except punishment.

Under statutes up to Smith-Hurd Rev. St. 1923, c. 38, § 389, inclusive, terms "grand larceny" and "petty larceny" are not specifically defined, but such terms have been simply used to signify punishment; "petty larceny" being used to designate that grade of larceny which subjects offender to punishment otherwise than in penitentiary.

3. Statutes 159-Repeal by implication not favored; it is only when there is clear repugnance and both acts cannot be carried into effect that former is repealed.

Repeal of laws by implication is not favored, and it is only when there is clear repugnance and provisions of both acts cannot be carried into effect that later law must prevail and former is considered as repealed by implication.

4. Statutes 159-Seemingly repugnant acts, if possible, to be construed to operate together.

Where two acts are seemingly repugnant, they should, if possible, be so construed that later they may not operate as repeal of former by implication.

5. Larceny 2

Statute concerning second offense held not repealed.

Cr. Code, § 393, relating to punishment for second offense of petty larceny, was not repealed by amendment of 1921 (Laws 1921, p. 404).

8. Criminal law 403- Evidence of what record showed was inadmissible in absence of evidence to show who made out record.

Witness who had nothing to do with keeping books, accounts, or toll tickets could not testify as to what they showed, in absence of evidence as to who made out records or their accuracy.

10. Criminal law

385-Any testimony tending directly to show guilt admissible.

Any testimony that tends directly to show defendant guilty of crime charged is competent, test of admissibility being connection of facts proved with offense charged.

II. Larceny 56-Incumbent upon people to prove corpus delicti beyond reasonable doubt.

In prosecution for larceny of money from pay telephone, it was incumbent upon people to prove corpus delicti beyond a reasonable doubt.

12. Criminal law. 561 (1) Guilt must be proved beyond reasonable doubt.

Guilt of person accused of crime cannot rest upon guess, surmise, or speculation, but must be proved by evidence establishing beyond a reasonable doubt every material element of crime charged.

Farmer, J., dissenting.

Error to Criminal Court, Cook County; Timothy D. Hurley, Judge.

Albert Burke was convicted of larceny, and brings error. Reversed and remanded. Otto Baer, of Chicago (J. M. Gwin, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Virgil L. Blanding, of Moline (Henry T. Chace, Jr.; Edward E. Wilson, and Clyde C. Fisher, all of Chicago, of counsel), for the People.

HEARD, J. Plaintiff in error, Albert Burke, was indicted, tried, and convicted in the criminal court of Cook county, Ill., under an indictment charging him with the

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