parties disarmed Visvardis. Other witnesses testified that when Chara hus heard of this he rebuked Visvardis and his associates for not using their guns, and told them that if they did not know how to use their guns they ought to throw them in the ash can. theory of the defense is that the Charahus faction were under the impression that Gar

The

ines and others of the Barbas faction had caused the police to close the gambling house owned by Visvardis, Dennis Lardas, and others of the Charahus faction; that Charahus had said repeatedly that he did not need the aid of the police to rule in his district, and that he could take care of his own affairs with his gun; and that there was a conspiracy among those of the Charahus faction to kill Barbas, Garines, and others of the opposing faction. The evidence for the defense is to the effect that Charahus, Visvardis, and Lardas were walking up and down the street in front of Mandolatos' coffee house; that finally Charahus went into the coffee house, and Visvardis and Lardas took stations a short distance from the door; that when Charahus entered the coffee house Garines walked out; that as he stepped onto the sidewalk Lardas began shooting at him; that Garines returned the fire; that Visvardis stepped out from the side of the building and reached for his gun; that Garines shot him and he fell to the sidewalk, that when the shooting began outside, Charahus drew his gun from his pocket and Barbas grabbed his hand and engaged in a struggle with him, and that during this struggle Charahus was

shot.

[1, 2] There are 1,100 pages of testimony in this record. About a score of witnesses testified for the people and an equal number for the defense In many respects the testimony of the witnesses for the prosecution is directly contradictory of the testimony of the witnesses for the defense. It was for the Jury to determine which set of witnesses was telling the truth. Where the evidence is conflicting, as it is in this case, the record, to sustain a conviction, must be reasonably free from substantial and prejudicial error.

Nick Funtall, who operated an hotel at 7171/2 South Halsted street, testified that about three o'clock in the afternoon of the day of the shooting Charahus came into the coffee house at 719 South Halsted street; that Visvardis, Lardas, and Spiros Konstantatos were sitting at a table; that Charahus appeared angry and abused Visvardis and his companions for not using their guns in the altercation with Garines the evening before; that about an hour later he saw Charahus, Visvardis, and Lardas walking up and down the sidewalk in front of Mandolatos' coffee house; that he left at this time on a street car and knew nothing about the shooting. The cross-examination by the assistant state's attorney, was in part as follows:

"Q. Are you indicted for robbery now? A. I was arrested, but I don't know if I am indicted yet.

"Q. Were you indicted by the federal government? A. I don't know if I am indicted. "Q. In a bank robbery? Did the government arrest you? A. Yes.

"Q. For the robbery of the Atlas National Bank of $14,000 of Liberty bonds? A. Yes. "Q. Is that what you were arrested for? A. Yes; but my attorney will find out

"Q. Is Mr. Nash your attorney? A. No. "Q. And when were you arrested by the federal authorities? A. In my place about three weeks ago; I am out on bonds now."

There was an objection to every question asked and the objection was promptly overruled without explanation. In reply to one of the objections the prosecutor said:

"I will show who this witness is; it goes to his credibility."

At another point the following colloquy took place:

"Smith He is objecting to every question I ask.

"Nash: On this line I am, because it is improper.

"Smith: You think it's improper. Now I submit to the court it is not improper. It goes to the credibility of this witness, as to whether the jury can believe him on anything."

Gus Michas testified on behalf of defend

ants that he operated the crap game for Barbas; that about two weeks before the day of gambling house about 1:15 a. m. and asked the shooting Charahus came into Barbas' Barbas why he had not closed his house at 1 o'clock; that Barbas replied that he was busy and wanted to remain open about 20 minutes longer; that Charahus told him if he did not close his place at 1 o'clock he (Charahus) would close it with his own gun; that Barbas replied that in the future he was going to keep his place open all night, and that Charahus said that if he did he would fix him; that on the date of the shooting he walked past Mandolatos' coffee house and saw Charahus, Visvardis, and Lardas walking up and down the sidewalk in front of the place; that as he passed them he heard Charahus say to Visvardis, "Why do you carry that gun in your pocket? Why don't you use it?" that he went to a coffee house in the neighborhood, and later to a barber shop across the street from the scene of the shooting; that during all this time Charahus, Lardas, and Visvardis were walking up and down the sidewalk in front of Mandolatos' coffee house; that he sat down in a barber chair to be shaved, and that while he was being shaved he heard a shot; that he looked out of the window and saw Garines shooting toward the north and Lardas toward the south; that Visvardis was standing near Lardas and during the shooting fell to the sidewalk; that George Mistakus ran to the body of Visvardis, took his gun and

(145 N.E.)

"The Court: I don't know what he is alluding that, your honor, on the ground that it is not to, I am sure.

"Smith: I will withdraw it, if you don't and immaterial, and is, if it is anything, only want

"Smith: And I will ask as to the location, not by this court. He has a right to be tried of the four corners of Seventy-Ninth and Hal-in accordance with the law of the land, and sted streets.

"Witness: It is the northeast corner. "Smith: Judge Williams, will you tell me what the fight was about and how it started?"

a conviction secured in total disregard of that law cannot be sustained. People v. Gardiner, 303 Ill. 204, 135 N. E. 422. The law does not provide one method for trying inProper objections were made to all of the nocent persons, and another for trying guilcross-examination of Maharas with respect ty persons. People v. Newman, 261 III. 11, 103 to the altercation with Judge Williams, and N. E. 589. Respect for the law and its propto all of the examination of Judge Williams er administration will not be established by on this subject, but all these objections were the lawless and unprofessional conduct of overruled. On cross-examination Judge Wil- those charged with the enforcement of the liams testified that he did not know the wit-law as shown by this record. We have quotness Michael Maharas, and that he did noted enough of the testimony of the witnesses know who the two men were who were in improperly impeached to show that their tes the place when he had his fight there, two or three years before.

During the direct examination of the defendant Vithoulkas, the following occurred: "Nash: After you talked to this man, were you called to any place-to the state's attorney's office? A. Yes, they let me tell the story

"Smith: Answer your lawyer's question. "Witness: How is that thing coming-his brother come there to see me.

"Smith: I want to object to the witness' volunteering anything-any statement. I object to him answering counsel's question, and I think he ought to be reprimanded for it. "The Court: This is one of the defendants, and I give him more latitude than an ordinary witness.

"Smith: It is just a lot of cooked-up stuff

here.

"Nash: I object to the remark as highly improper and prejudicial, The counsel said it is a lot of cooked-up stuff.' I want to

object to counsel's statement before the jury,

and ask that the jury be instructed to disregard it, and that counsel be admonished.

"The Court It would be a question of argument, wouldn't it?

"Nash. It is, sometimes, but counsel ought to be admonished, in view of the repeated offenses in this line.

"Smith: This man bursts out with speech every time Mr. Nash asks him a question; Mr. Nash can hold him down, if he wants to. "The Court: We all know what it is; we are not blind; go on, Mr. Nash."

[3] This remark of the court was highly prejudicial. The court undoubtedly meant to insinuate that the defendant's testimony was a lot of cooked-up stuff" and that his attorney could control his testimony if he de sired. This impression is the only one that the jury could have received, under the cir

timony was material to the defense. For the misconduct of the state's attorney in the examination of witnesses for the defense, and the errors of the trial court in permitting such misconduct, this case must be reversed. People v. Decker, 310 Ill. 234, 141 N. E. 710; People v. Green, 292 Ill. 351, 127 N. E. 50; People v Simmons, 274 Ill. 528, 113 N E 887.

On behalf of the people, the court gave to the jury the following instruction:

"The court instructs the jury in the language of the statute that if a person kills another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life or to prevent him from receiving great bodily harm, the killing of the other was absolutely necessary, and it must appear also that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given."

[5] This instruction is simply a copy of section 149 of the Criminal Code (SmithHurd Rev. St. 1923, c. 38, § 367), and is another labor-saving makeshift commonly used in homicide trials, but which does not give the jury any accurate knowledge of the law of self-defense. This instruction has been repeatedly condemned. People v. Durand, 307 Ill. 611, 139 N. E. 78; Kipley v. People, 215 Ill. 358, 74 N E. 379; Steiner v. People, 187 Ill. 244, 58 N. E. 383; Enright v. People, 155 Ill. 32; Gainey v. People, 97 Ill. 270, 39 N. E. 561; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49. The law on this subject was announced in the Campbell Case in 1854, and the doctrine announced in that case has been approved in every case since that time in which the question has arisen. There is no plausible excuse for the state's attorney of fering or the court giving an instruction so long and so often condemned.

The judgment of the criminal court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

2. Criminal law

1165(1)-Conviction on uncorroborated testimony of confessed accomplice not confirmed, unless record free from prejudicial error.

A conviction resting on uncorroborated testimony of confessed accomplice will not be confirmed, unless record is free from substantial and prejudicial error. 3. Witnesses

380(5)—Prosecution could not impeach own witness by proving inconsistent statements.

The prosecution could not impeach witnesses originally called by prosecution by proving that they had on other occasions made statements different from those made in court. 4. Criminal law 11702 (1)-Improper impeachment of important witnesses held ground for reversal.

Improper impeachment of witnesses whose testimony was important held ground for reversal.

struction that "to render the defense of alibi available the evidence must cover the whole of the time of the alleged commission of the crime," held erroneous in depriving defendant of the benefit of such testimony.

Error to Circuit Court, Will County; A. W. De Selin, Judge.

Benjamin Johnson was convicted of burglary and of larceny, and he brings error. Reversed and remanded.

Schuyler, Ettelson & Weinfeld, of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert W. Martin, State's Atty., of Joliet, and Edward C. Fitch, Asst. Atty. Gen., for the People.

THOMPSON, J. Plaintiff in error, Benjamin M. Johnson, who was convicted in the circuit court of Will county of burglary and larceny and sentenced to imprisonment in the penitentiary, prosecutes this writ of error to review the judgment.

Thomas Tong, the complaining witness, testified that some person or persons entered his chicken house during the night of March 4, 1924, and stole therefrom a large number of white Wyandotte chickens; that he did not know the exact number stolen but estimated the loss to be about 80; that a band was placed around the leg of each chicken raised during the season of 1923 so as to distinguish it from the older chickens; that some of them were marked with pink celluloid bands and others with a piece of insulated copper wire; In prosecution for larceny of chickens, that three days after the chickens were stolen cross-examination of defendant's witness, who he found some of them at the place of busihad testified to having sold chickens to defend-ness of Charles Madeja, in Chicago Heights, ant, as to whether she or her husband had ever been tried for stealing chickens, held error, having no other apparent purpose than to discredit her testimony by prejudicing jury

5. Witnesses 345(2) Cross-examination of witness, as to whether she or her husband had been prosecuted for chicken theft, held error.

against her.

6. Criminal law 3682-Witnesses -389

Testimony as to statements made by defend ant not proper evidence in chief, though proper in rebuttal If denied.

Testimony as to statements made by defendant held not proper evidence in chief, though proper in rebuttal if defendant had denied making statements to witness. 7. Witnesses 277(5)—Examination as to number of times defendant had been In court before held error.

Examination of defendant at length on collateral and immaterial subject of how many

times he had been in court before held error.

8. Criminal law 815(5)—Instruction on evidence essential to prove alibi held improper. In prosecution for larceny of chickens claimed to have been stolen during certain hour of night, in which defendant claimed an alibi, and in which there was testimony that defendant was not at place where chickens were stolen during certain hours of the night, in

and others at the place of business of Amedeo Farina, in the same city; that one of the chickens found at Farina's place was identified by him because it was crippled and walk

ed in a peculiar manner; that the other chickens were identified because they had on their legs celluloid and wire bands similar to those with which he had marked his young chickens; that he had no other means of identifying the chickens except by the fact that they were white Wyandottes and were marked as his chickens were marked; that he took 30 chickens home and placed them in a pen for two days; that then he let them out of the pen and they immediately mingled with the chickens he had at home, and went into the chicken house with them.

Both Madeja and Farina testified that they bought chickens on the morning of March 5 chickens the evening before from Benjamin from Henry Wigand; that they had ordered Johnson (plaintiff in error), and that Wigand delivered the chickens for Johnson; that they paid for the chickens by delivering to Wigand checks payable to the order of Johnson. banker at Beecher, at whose bank Johnson

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

A

Over the objection of plaintiff in error, an attorney, Elmer Bielfeld, and a detective, Edward Powers, testified that they visited plaintiff in error in the county jail at Joliet, and asked him from whom he got the chickens which he delivered to Madeja and Farina; that he replied that he bought them from a man who came to his place of business in the afternoon of March 4, but that he did not know the man.

conducted his business, testified that Johnson, March 4; that they had installed a new radio deposited the two checks March 6; and that and were listening to the program; that after $100 was credited to his account and $20.34 Mr. and Mrs. Fick returned all of them listenwas paid to him in cash. ed to the radio program until about one o'clock, when the Fick family retired; that he remained at the radio for a short time and went upstairs to bed about 2 o'clock; that as he went to bed he spoke to Mrs. Fick and told her to call him about 6 o'clock; that he arose about 6 o'clock, had his breakfast, and prepared to deliver chickens to his customers, Madeja and Farina, in Chicago Heights; that the night before the chickens had been placed in coops, which were then put on the truck and covered with a canvas; that the chickens placed in the coops were of many colors; that he had purchased them from people living in the neighborhood of Beecher, including a Mr. Reaman, a Mr. Hayden, and a Mr. Werman; that many of the chickens were white; that he did not remember whether their legs were marked with bands, but that he assumed many of them were, because it was a common practice in that neighborhood; that he sent the chickens to Chicago Heights by Wigand; that Wigand returned to him about noon and delivered to him two checks, which he deposited in the bank; that Wigand told him he wanted to make a payment on his automobile, and that he gave him a check for $40; that he owed Wigand for services more than $40 at that time; that he did not give Wigand any cash on that occasion; that he did not steal any chickens with Wigand and did not know that Wigand had stolen any chickens; that he did not say to Bielfeld and Powers that he did not know the man from whom he bought the chickens, but that he did say to them that he could not give the name of the party or parties from whom he had bought them until he looked at his duplicate bills; that as soon as he was released from jail he consulted his bills and found the names of the persons from whom he had bought the chickens.

Henry Wigand testified that he had been employed by plaintiff in error since December 20, 1923; that both of them boarded at the home of Louis Fick; that he and plaintiff in error passed the Tong farm in the afternoon of March 4; that they saw a great many chickens about the farm; that Johnson remarked that that was a handy place to steal some chickens; that he and Johnson left the Fick place about 11 o'clock in the night of March 4 in witness' Gray coupé automobile; that they drove to the neighborhood of the Tong farm, and left the automobile on a side road about a quarter of a mile from the chicken house; that they walked to the chicken house, entered it and filled 13 sacks with chickens; that they carried them across the orchard to a point near where the automobile was standing; that they made two trips from there to Johnson's place of business, where the chickens were placed in coops and loaded onto Johnson's Ford truck; that they reached Johnson's place with the first load about 4 o'clock a. m. and with the second load about an hour later; that he delivered the chickens the following morning to Madeja and Farina; that he left Johnson's place with the chickens shortly before 6 o'clock a. m., that Johnson gave him a personal check for $40 and $20 in cash as his half of the receipts from the stolen chickens.

Plaintiff in error testified that he was in Mrs. Edith Reaman testified that she had the produce business at Beecher; that his sold poultry, eggs, and butter to plaintiff in place of business was located at the residence error on three occasions during the year prior of Louis Fick; that he bought and sold poul- to March 4, 1924; that on that date she sold try, eggs, and butter; that Wigand was em- him about 350 pounds of poultry at 20 cents ployed by him, that they lived at the Fick resi- a pound, and some butter at 50 cents a pound; dence; that the Fick family was composed of that the chickens she sold him March 4 were Mr. and Mrs. Fick and their daughter, Aman- of mixed colors, and consisted of white Plyda; that all of them ate supper at the Fick mouth Rocks, white Wyandottes, barred Plyresidence shortly before 6 o'clock in the eve-mouth Rocks, Black Minorcas, Leghorns and ning of March 4; that Wigand drove away Rhode Island Reds; that she could not say from the Fick residence immediately after what portion of those she sold him were white supper; that Wigand did not return home Wyandottes but that many of them were; that night; that he did not see him again that she and her husband delivered the chickuntil he saw him return about 6:30 o'clock ens to Johnson's place of business in their the next morning; that Mr. and Mrs. Fick Ford car; that many of her chickens were left the house shortly after supper and went marked with celluloid bands around their to a party at the home of one of the neigh-legs; that it was her practice to mark the bors; that they returned home about mid- chickens of each season with a celluloid band night; that he and Amanda Fick remained so that she could distinguish the young from at the Fick residence all of the evening of the old; that she did not know that any of